Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors. (b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "Guarantee") to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Securities and all other amounts due and payable under this Indenture and the Securities by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. (c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor. (d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor. (e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or any of the Subsidiary Guarantors, and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made. (f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Unconditional Guarantee. (a) a. Notwithstanding any provision of this Article XI XII to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors XII shall be applicable only to, and inure solely to the benefit of, the Securities of any series Series designated, pursuant to Section 2.01 2.2.23, as entitled to the benefits of the Guarantee of each Guarantor identified in such designation and that has executed a Notation of the Subsidiary GuarantorsGuarantee with respect to such Series.
(b) b. For value received, each of the Subsidiary Guarantors Guarantor hereby jointly and severally, fully, unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the each Series of Securities for which such Guarantor has executed a Notation of Guarantee with respect to such Series and all other amounts due and payable under this Indenture and the Securities of such Series by the PartnershipCompany, when and as such principal, premium, if any, interest, and interest such other amounts as shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the such Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.12.3.
(c) c. Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary other Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership Company or any Subsidiary other Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of any of the Subsidiary Guarantors. Each of the Subsidiary Guarantors Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, of or interest on the SecuritiesSecurities entitled to the Guarantee of such Guarantor, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.7, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership Company or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) d. Each of the Subsidiary Guarantors Guarantor hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership Company or any of the Subsidiary Guarantors, and all demands whatsoever, whatsoever and (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guaranteeit. Each of the Subsidiary Guarantors Guarantor further agrees that if at any time all or any part of any payment theretofore applied by any Person person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) e. Each of the Subsidiary Guarantors Guarantor shall be subrogated to all rights of the Holders and the Trustee against the Partnership Company in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, ; provided, however, that such Subsidiary Guarantor, Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities entitled to the Guarantee of such Guarantor and the Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series Series designated, pursuant to Section 2.01 2.2.23, as entitled to the benefits of the Guarantee of each Guarantor identified in such designation and that has executed a Notation of the Subsidiary GuarantorsGuarantee with respect to such Series.
(b) For value received, each of the Subsidiary Guarantors hereby Guarantor hereby, jointly and severally, fully, unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, of and interest on the each Series of Securities for which such Guarantor has executed a Notation of Guarantee with respect to such Series and all other amounts due and payable under this Indenture and the Securities of such Series by the PartnershipIssuers, when and as such principal, premium, if any, principal and interest shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the such Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.10.3.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary other Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership either Issuer or any Subsidiary other Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of any of the Subsidiary Guarantors. Each of the Subsidiary Guarantors Guarantor hereby agrees that that, in the event of a default in payment of the principal of, or premium, if any, of or interest on the SecuritiesSecurities entitled to the Guarantee of such Guarantor, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.7, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership Issuers or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or any of the Subsidiary Guarantors, and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI Subject to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit ofThirteen, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors Guarantor hereby fully, unconditionally and absolutely irrevocably guarantees (the such guarantees to be referred to herein as "GuaranteeGUARANTEES") to each Holder of a Security authenticated and delivered by the Holders Trustee and to the Trustee and its successors and assigns, irrespective of the due validity and punctual payment enforceability of this Indenture, the Securities or the obligations of the Company to the Holders or the Trustee hereunder or thereunder, that: (a) the principal of, and premium, if any, and interest on the Securities shall be duly and all other amounts due and payable under this Indenture and punctually paid in full when due, whether at maturity, upon redemption at the option of Holders pursuant to the provisions of the Securities relating thereto, by acceleration or otherwise, and interest on the Partnership, when overdue principal and as such principal, premium(to the extent permitted by law) interest, if any, on the Securities and interest all other obligations of the Company or the Guarantor to the Holders or the Trustee hereunder or thereunder (including amounts due the Trustee hereunder) and all other obligations shall become be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Securities or any of such other obligations, the same shall be promptly paid in full when due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities and this Indentureextension or renewal, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securitieswhether at maturity, to the subordination provisions contained in Article X.
(c) by acceleration or otherwise. Failing payment when due of any amount guaranteed pursuant so guaranteed, or failing performance of any other obligation of the Company to the GuaranteeHolders under this Indenture or under the Securities, for whatever reason, each of the Subsidiary Guarantors will Guarantor shall be jointly and severally obligated to pay pay, or to perform or cause the performance of, the same immediately. An Event of Default under this Indenture or the Securities shall constitute an event of default under this Guarantee, subject, and shall entitle the Holders of Securities to accelerate the obligations of the Guarantor hereunder in the case same manner and to the same extent as the obligations of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. Company. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same same, whether or not a Guarantee is affixed to any particular Security, or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorsa Guarantor. Each of the Subsidiary Guarantors The Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for waives the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the its Guarantee will shall not be discharged except by complete performance of the obligations contained in the Securities, this Indenture and this Guarantee. Each This Guarantee is a guarantee of payment and not of collection. If any Holder or the Subsidiary Guarantors further agrees that if at Trustee is required by any time all court or otherwise to return to the Company or to the Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee isCompany or the Guarantor, any amount paid by the Company or must bethe Guarantor to the Trustee or such Holder, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shallthis Guarantee, to the extent that such payment is or must theretofore discharged, shall be rescinded or returnedreinstated in full force and effect. The Guarantor further agrees that, be deemed to have continued in existence notwithstanding such applicationas between it, on the one hand, and the Guarantee shall continue Holders of Securities and the Trustee, on the other hand, (a) subject to be effective or be reinstatedthis Article Thirteen, as the case may be, as though such application had not been made.
(f) Each maturity of the Subsidiary Guarantors shall obligations guaranteed hereby may be subrogated to all rights accelerated as provided in Article Five hereof for the purposes of the Holders and the Trustee against the Partnership this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (b) in the event of any amounts paid acceleration of such obligations as provided in Article Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary the Guarantor pursuant to for the provisions purpose of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid in full or dischargedGuarantee.
Appears in 1 contract
Sources: Indenture (Bowater Inc)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, fully and unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Securities Notes and all other amounts due and payable under this Indenture and the Securities Notes by the PartnershipCompany (collectively, the “Guaranteed Obligations”), when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Securities Notes and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) 1503. Failing payment when due of any amount guaranteed pursuant to the its Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The . Each Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the SecuritiesNotes, the Guarantee (including the Guarantee of any Subsidiary Guarantor) other Guarantor or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership Company or any Subsidiary other Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the SecuritiesNotes, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06507, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the its Guarantee without first proceeding against the Partnership Company or any other Subsidiary Guarantor.
(d) . The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, full and unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i1) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership Company or any of the Subsidiary other Guarantors contained in the Securities Notes or this Indenture, (ii2) any impairment, modification, release or limitation of the liability of the PartnershipCompany, any of the Subsidiary other Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amendedbankruptcy law, or other statute or from the decision of any court, (iii3) the assertion or exercise by the PartnershipCompany, any of the Subsidiary other Guarantors or the Trustee of any rights or remedies under the Securities Notes or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv4) the assignment or the purported assignment of any property as security for the SecuritiesNotes, including all or any part of the rights of the Partnership Company or any of the Subsidiary other Guarantors under this Indenture, (v5) the extension of the time for payment by the Partnership Company or any of the Subsidiary other Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities Notes or this Indenture or of the time for performance by the Partnership Company or any of the Subsidiary other Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi6) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership Company or any of the Subsidiary other Guarantors set forth in this Indenture, (vii7) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, of or other similar proceeding affecting, the Partnership Company or any of the Subsidiary other Guarantors or any of their respective assets, or the disaffirmance of the SecuritiesNotes, the Guarantee or this Indenture in any such proceeding, (viii) 8) the release or discharge of the Partnership Company or any of the Subsidiary other Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix9) the unenforceability of the Securities, the Guarantee Notes or this Indenture or (x10) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the GuaranteeGuarantees) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) . Each of the Subsidiary Guarantors hereby (i1) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership Company or any of the Subsidiary Guarantors, and all demands whatsoever, (ii2) acknowledges that any agreement, instrument or document evidencing the its Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii3) covenants that the its Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the its Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed deemed, to the fullest extent permitted by law, to have continued in existence notwithstanding such application, and the Guarantee shall shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) . Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership Company in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, ; provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities Notes and the Guarantee Guarantees shall have been paid in full or discharged.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI XIV to the contrary, the provisions of this Article XI XIV relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Debt Securities of any series designated, pursuant to Section 2.01 2.03, as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Debt Securities and all other amounts due and payable under this Indenture and the Debt Securities by the PartnershipIssuers, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Debt Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.14.03.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. . The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Debt Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Debt Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership Issuers, or any Subsidiary Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Debt Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.04, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership Issuers or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI XIV shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership Issuers or any of the Subsidiary Guarantors contained in the Debt Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the PartnershipIssuers, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the PartnershipIssuers, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Debt Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Debt Securities, including all or any part of the rights of the Partnership Issuers or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership Issuers or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Debt Securities or this Indenture or of the time for performance by the Partnership Issuers or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership Issuers or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership Issuers or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Debt Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership Issuers or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Debt Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership Issuers or any of the Subsidiary Guarantors, and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Issuers or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership Issuers in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Debt Securities and the Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors Each Guarantor hereby fully, unconditionally and absolutely guarantees (such guarantee to be referred to herein as the "Guarantee") ), subject to Article Thirteen, to each Holder of a Security authenticated and delivered by the Holders Trustee and to the Trustee and its successors and assigns, the due and punctual payment Securities or the Obligations of the Company hereunder or thereunder, that: (i) the principal ofof and interest on the Securities will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration or otherwise and premiuminterest on the overdue principal, if any, and interest on any interest, to the extent lawful, of the Securities and all other amounts obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Securities or of any such other obligations, the same will be promptly paid in full when due and payable under this Indenture and the Securities by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities and this Indentureextension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise, subject, however, in the case of clauses (i) and (ii) above, to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee12.04. Each of the Subsidiary Guarantors Guarantor hereby agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorsa guarantor. Each of the Subsidiary Guarantors Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the this Guarantee will not be discharged except by complete performance of the obligations contained in the Securities, this Indenture and in this Guarantee. Each of If any Securityholder or the Subsidiary Guarantors further agrees that if at Trustee is required by any time all court or otherwise to return to the Company, any Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of Guarantor, any amount paid by the Subsidiary GuarantorsCompany or any Guarantor to the Trustee or such Securityholder, the Guarantee shallthis Guarantee, to the extent that theretofore discharged, shall be reinstated in full force and effect. Each Guarantor further agrees that, as between such payment is or must be rescinded or returnedGuarantor, be deemed to have continued in existence notwithstanding such applicationon the one hand, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against Trustee, on the Partnership other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any amounts paid acceleration of such obligations as provided in Article Six, such obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor pursuant to for the provisions purpose of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid in full or dischargedGuarantee.
Appears in 1 contract
Sources: Indenture (Aearo CO I)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI Subject to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value receivedTwelve, each of the Subsidiary Guarantors hereby fullyGuarantor, if any, hereby, jointly and severally, unconditionally and absolutely guarantees irrevocably guarantees, on a senior subordinated basis (the such guarantee to be referred to herein as a "Guarantee") to each Holder of a Note authenticated and delivered by the Holders Trustee and to the Trustee and its successors and assigns, the due and punctual payment Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal of, and premium, if any, and interest on the Securities Notes (and all other amounts due any Additional Interest payable thereon) shall be duly and payable under this Indenture punctually paid in full when due, whether at maturity, upon redemption at the option of Holders pursuant to the provisions of the Notes relating thereto, by acceleration or otherwise, and interest on the Securities overdue principal and (to the extent permitted by the Partnership, when and as such principal, premiumlaw) interest, if any, on the Notes and interest all other obligations of the Company or the Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder (including amounts due the Trustee under Section 7.07) and all other obligations shall become be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall be promptly paid in full when due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities and this Indentureextension or renewal, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securitieswhether at maturity, to the subordination provisions contained in Article X.
(c) by acceleration or otherwise. Failing payment when due of any amount guaranteed pursuant so guaranteed, or failing performance of any other obligation of the Company to the GuaranteeHolders under this Indenture or under the Notes, for whatever reason, each Subsidiary Guarantor shall be obligated to pay, or to perform or cause the performance of, the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under this Guarantee, and shall entitle the Holders of Notes to accelerate the obligations of the Subsidiary Guarantors will be jointly and severally obligated to pay hereunder in the same immediately, subject, in manner and to the case same extent as the obligations of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the GuaranteeCompany. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities Notes with respect to any provisions hereof or thereof, any release of any other Subsidiary Guarantor, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same same, whether or not a Guarantee is affixed to any particular Note, or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorsa guarantor. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for waives the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the its Guarantee will shall not be discharged except by complete performance of the obligations contained in the Notes, this Indenture and this Guarantee. Each This Guarantee is a guarantee of payment and not of collection. If any Holder or the Trustee is required by any court or otherwise to return to the Company or to any Subsidiary Guarantors further agrees that if at any time all Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee isCompany or such Subsidiary Guarantor, any amount paid by the Company or must besuch Subsidiary Guarantor to the Trustee or such Holder, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shallthis Guarantee, to the extent that such payment is or must theretofore discharged, shall be rescinded or returnedreinstated in full force and effect. Each Subsidiary Guarantor further agrees that, be deemed to have continued in existence notwithstanding such applicationas between it, on the one hand, and the Guarantee Holders of Notes and the Trustee, on the other hand, (a) subject to this Article Twelve, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (b) in the event of any acceleration of such obligations as provided in Article Six hereof, such obligations (whether or not due and payable) shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of forthwith become due and payable by the Subsidiary Guarantors shall be subrogated to all rights for the purpose of the Holders and the Trustee against the Partnership in respect this Guarantee. No stockholder, officer, director, employee or incorporator, past, present or future, of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, as such, shall not have any personal liability under this Guarantee by reason of his, her or its status as such stockholder, officer, director, employee or incorporator. Each Subsidiary Guarantor that makes a payment or distribution under its Guarantee shall be entitled to enforce or to receive any payments arising out ofa contribution from each other Subsidiary Guarantor in an amount pro rata, or based uponon the net assets of each Subsidiary Guarantor, such right of subrogation until all of the Securities and the Guarantee shall have been paid determined in full or dischargedaccordance with GAAP.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI XIV to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors XIV shall be applicable only to, and inure solely to the benefit of, the Debt Securities of any series designated, pursuant to Section 2.01 2.03, as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Debt Securities and all other amounts due and payable under this Indenture and the Debt Securities by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Debt Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.14.03.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. . The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such each Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Debt Securities, the Guarantee (including the Guarantee of any other Subsidiary Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Debt Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any other Subsidiary Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of any of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Debt Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.04, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI XIV shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (iA) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Debt Securities or this Indenture, (iiB) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iiiC) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Debt Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (ivD) the assignment or the purported assignment of any property as security for the Debt Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (vE) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Debt Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (viF) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (viiG) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Debt Securities, the Guarantee or this Indenture in any such proceeding, (viiiH) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ixI) the unenforceability of the Debt Securities, the Guarantee or this Indenture or (xJ) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (iA) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or any of the Subsidiary Guarantors, and all demands whatsoever, (iiB) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iiiC) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Debt Securities and the Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, The Guarantor does hereby fully and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees guarantee (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual all payment obligations of the principal of, and premium, if any, and interest on the Securities and all other amounts Issuer due and payable under this Indenture and the Securities by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case including without limitation on each series of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) Failing payment Securities when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subjectdue, in accordance with the case provisions of the Guarantee of the Subordinated Securitiesthis Indenture, to the subordination provisions contained in Article X. as provided below. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will shall rank pari passu equally in right of payment with all Debt of such Subsidiary Guarantor that is notother unsecured, by its terms, expressly subordinated in right of payment to the Guarantee. Each senior indebtedness of the Subsidiary Guarantors Guarantor. The Guarantor hereby waives notice of acceptance of the Guarantee and of default of performance by the Issuer, and hereby agrees that its obligations hereunder payment under the Guarantee shall be fullsubject to no condition other than the giving of a written request for payment, unconditional stating the fact of default of performance by Issuer on an obligation that is due and absolute, irrespective payable on a series of Securities. This Guarantee is a guarantee of payment and not of collection. The obligations of the Guarantor under the Guarantee shall in no way be impaired by: (1) any extension, amendment, modification or renewal of a series of Securities; (2) any waiver of any Event of Default, extension of time or failure to enforce any series of Securities; or (3) any extension, moratorium or other relief granted to the Issuer pursuant to any applicable law or statute. The Guarantor shall be obligated to make payment under the Guarantee, for the benefit of the Holders, at the same place as the Issuer is obligated to make payment. Subject to the provisions of this Article XIII, the Guarantor hereby agrees that:
(a) each series of Securities will be paid strictly in accordance with the terms of this Indenture, regardless of the value, genuineness, validity, regularity or enforceability of the such series of Securities, the Guarantee (including the Guarantee and of any Subsidiary Guarantor) law, regulation or this Indenture, order now or hereafter in effect in any jurisdiction affecting any of such terms or the absence of any action to enforce the same, any waiver or consent by any Holder rights of the Securities Trustee with respect to any provisions hereof or thereof, thereto; and
(b) the recovery of any judgment against the Partnership or any Subsidiary Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense liability of the Subsidiary Guarantors. Each of Guarantor to the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions extent herein set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid fullabsolute, unconditional and absolute and shall irrevocable, not be impairedsubject to any reduction, modifiedlimitation, released impairment, termination (other than payment in full of the series of Securities), defense, offset, counterclaim or limited recoupment whatsoever (all of which are hereby expressly waived by the Guarantor to the extent permitted by law) whether by reason of any occurrence or condition claim of any character whatsoever, including, without limitation, any claim of waiver, release, surrender, alteration or compromise, or by reason of any liability at any time to the Guarantor or otherwise, whether based upon any obligations or any other agreement or otherwise, and howsoever arising, whether out of action or inaction or otherwise and whether resulting from default, willful misconduct, gross negligence or otherwise, and without limiting the foregoing, irrespective of:
(i) any compromise, settlement, release, waiver, renewal, extension, indulgence lack of validity or modification of, enforceability of any agreement or any change in, any instrument relating to such series of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, Securities;
(ii) any impairmentchange in the time, modificationmanner or place of payment of, release or limitation in any other term in respect of, all or any of the liability such series of the PartnershipSecurities, or any rescission, amendment or other modification or waiver of or consent to any departure from any of the Subsidiary Guarantors terms or provisions of this Indenture, the Securities or any other agreement relating to any Securities of such series;
(iii) any increase in, addition to, exchange or release of, or nonperfection of any lien on or security interest in, any collateral, or any release or amendment or waiver of or consent to any departure from or failure to enforce any other guarantee, for all or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation such series of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, Securities;
(iv) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the assignment or the purported assignment Issuer in respect of any property as security for the such series of Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, ;
(v) the extension absence of any action on the part of the time for Trustee to obtain payment by of such series of Securities from the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, Issuer;
(vi) the modification any insolvency, bankruptcy, reorganization or amendment (whether material dissolution, or otherwise) of any duty, agreement or obligation similar proceeding of the Partnership or any Issuer, including, without limitation, rejection of the Subsidiary Guarantors set forth such series of Securities in this Indenture, such bankruptcy; or
(vii) the voluntary absence of notice or involuntary liquidationany delay in any action to enforce any Securities of such series or to exercise any right or remedy against the Guarantor or the Issuer, dissolutionwhether hereunder, sale under any Securities of such series or other disposition of all any agreement or substantially all of any indulgence, compromise or extension granted. Notwithstanding anything to the assetscontrary in this Guarantee, marshaling of assets and liabilitiesthe Guarantor does not waive any defense that would be available to the Issuer based on a breach, receivership, insolvency, bankruptcy, assignment for default or misrepresentation by the benefit of creditors, reorganization, arrangement, composition or readjustment ofTrustee, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance failure of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) to the unenforceability of the Securities, the Guarantee or Issuer’s obligations under this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or any of the Subsidiary Guarantors, and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder illegality of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance provision of the Guaranteethis Indenture. Each of the Subsidiary Guarantors The Guarantor further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shallthat, to the extent that the Issuer or the Guarantor makes a payment or payments to the Trustee, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to the Issuer or the Guarantor or their respective estate, trustee, receiver or any other party under any federal bankruptcy laws, state or federal law, common law or equitable cause, then to the extent of such payment is or must be rescinded or returnedrepayment, be deemed to have continued in existence notwithstanding such application, this Guarantee and the Guarantee shall continue to be effective advances or be reinstatedpart thereof which have been paid, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership in respect of any amounts paid reduced or satisfied by such Subsidiary Guarantor pursuant to amount (and the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all Indenture in respect of the Securities Guarantee) shall be reinstated and the Guarantee shall have been paid continued in full force and effect as of the date such initial payment, reduction or dischargedsatisfaction occurred.
Appears in 1 contract
Unconditional Guarantee. (a1) Notwithstanding any provision of this Article XI Fifteen to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors Fifteen shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary GuarantorsInitial Notes.
(b2) For value received, each of the Subsidiary Guarantors Guarantor hereby fully, unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Securities Initial Notes and all other amounts due and payable under this Indenture and the Securities Initial Notes by the PartnershipCompany (including, without limitation, all costs and expenses (including reasonable legal fees and disbursements) incurred by the Trustee or the Holders in connection with the enforcement of this Indenture as it relates to the Initial Notes and the Guarantee), when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and when and as such other amounts shall become due and payable, according to the terms of the Securities Initial Notes and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.1503.
(c3) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors Guarantor will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, immediately to the subordination provisions contained in Article X. Trustee, without set off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors Guarantor and will rank pari passu in right of payment with all Debt debt of such Subsidiary the Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee, and is intended to be a guarantee of payment and not of collection. Each of the Subsidiary Guarantors The Guarantor hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the SecuritiesInitial Notes, the Guarantee (including the Guarantee of any Subsidiary Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities Initial Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary GuarantorsGuarantor. Each of the Subsidiary Guarantors The Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the SecuritiesInitial Notes, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary the Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary GuarantorCompany.
(d4) The obligations of each of the Subsidiary Guarantors Guarantor under this Article XI Fifteen shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (iA) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors Company contained in the Securities Initial Notes or this Indenture, (iiB) any impairment, modification, release or limitation of the liability of the PartnershipCompany, any or of the Subsidiary Guarantors or any of their estates its estate in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Lawbankruptcy, as amendedinsolvency, reorganization or other similar law, or other statute or from the decision of any court, (iiiC) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors Company or the Trustee of any rights or remedies under the Securities Initial Notes or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (ivD) the assignment or the purported assignment of any property as security for the SecuritiesInitial Notes, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors Company under this Indenture, (vE) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors Company of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities Initial Notes or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors Company of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or any of the Subsidiary Guarantors, and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid in full or discharged.,
Appears in 1 contract
Sources: Twelfth Supplemental Indenture (DCP Midstream Partners, LP)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors Each Guarantor hereby fully, unconditionally and absolutely guarantees (such guarantee to be referred to herein as the "Guarantee") to each of the Holders Lenders and to the Trustee the due Administrative Agent and punctual payment of their respective successors and assigns that (i) the principal ofof and interest on each Loan not borrowed by it in its capacity as a Borrower will be promptly paid in full when due, subject to any applicable grace period, whether at the Maturity Date, by acceleration or otherwise and premiuminterest on the overdue principal, if any, and interest on any interest, to the Securities extent lawful, of each such Loan and all other amounts due and payable obligations of the other Borrower to the Lenders or the Administrative Agent hereunder or under this Indenture and the Securities by the PartnershipNotes (including, when and as such principalwithout limitation, premiumfor any reimbursements, if anyfees, and interest shall become due and payableexpenses, whether at the stated maturity or by declaration of acceleration, call for redemption indemnities or otherwise) will be promptly paid in full or performed, according to all in accordance with the terms of the Securities hereof and this Indenturethereof, subject to the limitations set forth in Section 11.03 and (ii) in the case of any extension of time of payment or renewal of any such Loan or of any such other obligations, the Guarantee same will be promptly paid in full when due or performed in accordance with the terms of the Subordinated Securitiesextension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise. Each Guarantor hereby guarantees that the subordination provisions contained Obligations will be paid or performed, as applicable, strictly in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to accordance with the Guarantee, for whatever reason, each terms of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediatelyLoan Documents, subject, in the case regardless of the Guarantee of the Subordinated Securitiesvalue, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a generalgenuineness, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the SecuritiesObligations, the Guarantee (including the Guarantee and of any Subsidiary Law now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Lenders with respect thereto. The liability of each Guarantor to the extent herein set forth shall be absolute and unconditional, not subject to any reduction, limitation, impairment, termination, defense, offset, counterclaim or recoupment whatsoever (all of which are hereby expressly waived by each Guarantor) or this Indenture, the absence whether by reason of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery claim of any judgment against the Partnership or any Subsidiary Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition character whatsoever, including, without limitation, (i) any compromise, settlementclaim of waiver, release, waiversurrender, renewalalteration or compromise, extensionor by reason of any liability at any time to the other Guarantor or otherwise, indulgence whether based upon any obligations or modification any other agreement or otherwise, and howsoever arising, whether out of action or inaction or otherwise and whether resulting from default, willful misconduct, negligence or otherwise, and, without limiting the foregoing, irrespective of : any lack of validity, legality or enforceability of any agreement or instrument relating to the Obligations, any change in the time, manner or place of payment of, or in any change inother term in respect of, any of the obligations and liabilities of the Partnership all or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcyObligations, or any remedy for the enforcement thereof, resulting other amendment to or waiver of or consent to any departure from the operation any other agreement relating to any Obligations; any release or amendment or waiver of or consent to any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or departure from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise enforce any such rights or remediesother guarantee, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of Indebtedness; any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) circumstance which might otherwise constitute a legal defense available to, or equitable a discharge of, a Borrower or a Guarantor in respect of the Obligations; the absence of any action on the part of the Lenders to obtain payment of the Obligations from a Borrower; any insolvency, bankruptcy, reorganization or dissolution, or any similar proceeding of a surety or guarantor.
(e) Each Borrower, including, without limitation, rejection of the Subsidiary Guarantors Obligations in such bankruptcy; the assignment of the Credit Agreement by the Lenders or a Borrower; or the absence of notice or any delay in any action to enforce any Obligations or to exercise any right or remedy against a Guarantor, whether hereunder, under any Obligations or any agreement or any indulgence, compromise or extension granted. Each Guarantor hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or a Borrower, any of the Subsidiary Guarantorsright to require a proceeding first against a Borrower, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the this Guarantee will not be discharged except by complete performance of the obligations contained in each Note, this Agreement and in this Guarantee. Each of If any Lender or the Subsidiary Guarantors further agrees that if at Administrative Agent are required by any time all court or otherwise to return to a Borrower, a Guarantor, or any part of custodian, trustee, liquidator or other similar official acting in relation to a Borrower or a Guarantor, any payment theretofore applied amount paid by any Person a Borrower or a Guarantor to the Guarantee isAdministrative Agent or such Lender, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shallthis Guarantee, to the extent that such payment is or must be rescinded or returnedtheretofore discharged, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid reinstated in full or discharged.force and effect. Each Guarantor further agrees
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors Each Guarantor hereby fully, unconditionally and absolutely guarantees (the "such guarantee is referred to herein as a “Guarantee") ”), jointly and severally, to the Holders each Holder and to the Trustee Trustee, the prompt payment when due and punctual payment of the principal of, and premium, if any, and interest on the Securities and all other amounts due and payable under this Indenture and the Securities (whether by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, whether acceleration or otherwise) at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to place and in the manner provided in the terms of the Securities and in this Indenture of: (i) the principal of, (premium, if any), interest, if any, and Additional Amounts, if any, on each of the Securities at the respective times provided in the terms of the Securities and in this Indenture, subject whether at maturity, by acceleration or otherwise and whether any such amounts are allowed or allowable in any bankruptcy or insolvency of the Company, (ii) interest on any overdue amounts specified in the terms of the Securities and in this Indenture, and (iii) all other amounts payable by the Company hereunder or under the Securities including without limitation, amounts payable to the Trustee or the Holders under Section 7.06 and Article Six, all in accordance with the terms hereof and the terms of the Securities, subject, however, in the case of clauses (i), (ii) and (iii) above, to the limitations set forth in Section 11.03 and (ii) in the 15.03. In case of any extension of time of payment or renewal of any Securities or of any such other payment obligations, each Guarantor hereby agrees to pay promptly such Securities in full when due in accordance with the Guarantee terms of the Subordinated Securitiesextension or renewal, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guaranteewhether at stated maturity, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) by acceleration or otherwise. This is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right guarantee of payment with all Debt and not of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guaranteecollection. Each of the Subsidiary Guarantors Guarantor hereby agrees that its obligations hereunder shall be full, unconditional and absoluteabsolute unconditional, irrespective of the any lack of validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Securities or this Indenture, the absence of any action failure to enforce the same, any waiver or consent to the Company with respect thereto by any Holder of or the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary GuarantorTrustee, or any action to enforce the same or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) . Each of the Subsidiary Guarantors Guarantor hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the this Guarantee will not be discharged except by complete performance of the obligations contained in the Securities, this Indenture and in this Guarantee. Each of If any Holder or the Subsidiary Guarantors further agrees that if at Trustee is required by any time all court or otherwise to return to the Company, any Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of Guarantor, any amount paid by the Subsidiary GuarantorsCompany or any Guarantor to the Trustee or such Holder, the Guarantee shallthis Guarantee, to the extent that such payment is or must theretofore discharged, shall be rescinded or returnedreinstated in full force and effect. Each Guarantor further agrees that, be deemed to have continued in existence notwithstanding such applicationas between each Guarantor, on the one hand, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against Trustee, on the Partnership other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article Six hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purpose of this Guarantee. Each Guarantor further agrees to pay all reasonable external attorneys’ fees, costs and expenses incurred by the Trustee in connection with the collection of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce payable hereunder or to receive any payments arising out of, or based upon, such right of subrogation until all enforcement of the Securities and the Guarantee shall have been paid in full or dischargedGuarantee.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI Subject to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value receivedTwelve, each of the Subsidiary Guarantors hereby fullyGuarantor, if any, hereby, jointly and severally, unconditionally and absolutely guarantees irrevocably guarantees, on a senior subordinated basis as provided in Article Thirteen (the such guarantee to be referred to herein as a "Guarantee") to each Holder of a Note authenticated and delivered by the Holders Trustee and to the Trustee and its successors and assigns, irrespective of the due validity and punctual payment enforceability of this Indenture, the Notes or the obligations of the Company or any other Guarantors to the Holders or the Trustee hereunder or thereunder, that: (a) the principal of, and premium, if any, and interest on the Securities Notes (and all other amounts due any Additional Interest payable thereon) shall be duly and payable under this Indenture punctually paid in full when due, whether at maturity, upon redemption at the option of Holders pursuant to the provisions of the Notes relating thereto, by acceleration or otherwise, and interest on the Securities overdue principal and (to the extent permitted by the Partnership, when and as such principal, premiumlaw) interest, if any, on the Notes and interest all other obligations of the Company or the Guarantors to the Holders or the Trustee hereunder or thereunder (including amounts due the Trustee under Section 7.07 hereof) and 100 -93- all other obligations shall become be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall be promptly paid in full when due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities and this Indentureextension or renewal, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securitieswhether at maturity, to the subordination provisions contained in Article X.
(c) by acceleration or otherwise. Failing payment when due of any amount guaranteed pursuant so guaranteed, or failing performance of any other obligation of the Company to the GuaranteeHolders under this Indenture or under the Notes, for whatever reason, each of the Subsidiary Guarantors will Guarantor shall be jointly and severally obligated to pay pay, or to perform or cause the performance of, the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under this Guarantee, subject, and shall entitle the Holders of Notes to accelerate the obligations of the Guarantors hereunder in the case same manner and to the same extent as the obligations of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the GuaranteeCompany. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities Notes with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same same, whether or not a Guarantee is affixed to any particular Note, or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorsa guarantor. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for waives the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the its Guarantee will shall not be discharged except by complete performance of the obligations contained in the Notes, this Indenture and each Guarantee. Each Guarantee is a guarantee of payment and not of collection. If any Holder or the Subsidiary Guarantors further agrees that if at Trustee is required by any time all court or otherwise to return to the Company or to any Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee isCompany or such Guarantor, any amount paid by the Company or must be, rescinded such Guarantor to the Trustee or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantorssuch Holder, the Guarantee shallof such Guarantor, to the extent that such payment is or must theretofore discharged, shall be rescinded or returnedreinstated in full force and effect. Each Guarantor further agrees that, be deemed to have continued in existence notwithstanding such applicationas between it, on the one hand, and the Guarantee shall continue Holders of Notes and the Trustee, on the other hand, (a) subject to be effective or be reinstatedthis Article Twelve, as the case may be, as though such application had not been made.
(f) Each maturity of the Subsidiary Guarantors shall obligations guaranteed hereby may be subrogated to all rights accelerated as provided in Article Six hereof for the purposes of the Holders and the Trustee against the Partnership such Guarantor's Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (b) in the event of any amounts paid acceleration of such obligations as provided in Article Six hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of such Subsidiary Guarantor pursuant to the provisions Guarantor's Guarantee. No stockholder, officer, director, employee or incorporator, past, present or future, of this Indenture, provided, however, that such Subsidiary any Guarantor, as such, shall not have any personal liability under any Guarantee by reason of his, her or its status as such stockholder, officer, director, employee or incorporator. Each Guarantor that makes a payment or distribution under its Guarantee shall be entitled to enforce or to receive any payments arising out ofa contribution from each other Guarantor, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid determined in full or dischargedaccordance with GAAP.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI XIV to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors XIV shall be applicable only to, and inure solely to the benefit of, the Debt Securities of any series designated, pursuant to Section 2.01 2.03, as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "Guarantee") to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Debt Securities and all other amounts due and payable under this Indenture and the Debt Securities by the Partnership, when and as such principal, premium, if any, interest and interest other amounts shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Debt Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.14.03.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. . The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such each Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Debt Securities, the Guarantee (including the Guarantee of any other Subsidiary Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by the Trustee or any Holder of the Debt Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any other Subsidiary Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of any of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Debt Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.04, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI XIV shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (iA) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Debt Securities or this Indenture, (iiB) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iiiC) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Debt Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (ivD) the assignment or the purported assignment of any property as security for the Debt Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (vE) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Debt Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (viF) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (viiG) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Debt Securities, the Guarantee or this Indenture in any such proceeding, (viiiH) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ixI) the unenforceability of the Debt Securities, the Guarantee or this Indenture or (xJ) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (iA) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or any of the Subsidiary Guarantors, and all demands whatsoever, (iiB) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iiiC) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership in respect of any amounts paid by each such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Debt Securities and the Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI XIV to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors XIV shall be applicable only to, and inure solely to the benefit of, the Debt Securities of any series designated, pursuant to Section 2.01 2.03, as entitled to the benefits of the Guarantee of each any of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "Guarantee") to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Debt Securities and all other amounts due and payable under this Indenture and the Debt Securities by the Partnership, when and as such principal, premium, if any, interest and interest other amounts shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Debt Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.14.03.
(c) Failing payment when due of any amount guaranteed pursuant to the its Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. . The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Debt Securities, the its Guarantee (including the Guarantee of any other Subsidiary Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by the Trustee or any Holder of the Debt Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any other Subsidiary Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of any of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Debt Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.04, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the its Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI XIV shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (iA) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Debt Securities or this Indenture, (iiB) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iiiC) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Debt Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (ivD) the assignment or the purported assignment of any property as security for the Debt Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (vE) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Debt Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (viF) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (viiG) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Debt Securities, the Guarantee or this Indenture in any such proceeding, (viiiH) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ixI) the unenforceability of the Debt Securities, the any other Guarantee or this Indenture or (xJ) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (iA) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or any of the other Subsidiary Guarantors, and all demands whatsoever, (iiB) acknowledges that any agreement, instrument or document evidencing the its Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iiiC) covenants that the its Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the its Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the other Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Debt Securities and the each Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Sources: Indenture (Acin LLC)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI XIV to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors XIV shall be applicable only to, and inure solely to the benefit of, the Debt Securities of any series designated, pursuant to Section 2.01 2.03, as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Debt Securities and all other amounts due and payable under this Indenture and the Debt Securities by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Debt Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.14.03.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. . The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary each Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Debt Securities, the Guarantee (including the Guarantee of any Subsidiary other Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Debt Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary other Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of any of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Debt Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.04, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.. Exhibit 4.1 --------
(d) The obligations of each of the Subsidiary Guarantors under this Article XI XIV shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (iA) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Debt Securities or this Indenture, (iiB) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iiiC) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Debt Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (ivD) the assignment or the purported assignment of any property as security for the Debt Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (vE) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Debt Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (viF) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (viiG) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Debt Securities, the Guarantee or this Indenture in any such proceeding, (viiiH) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ixI) the unenforceability of the Debt Securities, the Guarantee or this Indenture or (xJ) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (iA) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or any of the Subsidiary Guarantors, and all demands whatsoever, (iiB) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iiiC) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Debt Securities and the Guarantee shall have been paid in full or discharged.. Exhibit 4.1 --------
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision Fibria hereby unconditionally guarantees to each Holder of this Article XI to a Security authenticated and delivered by the contraryTrustee, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "Guarantee") to the Holders and to the Trustee on behalf of such Holder, the due full and punctual payment of the principal of, of (and premium, if any, on) and interest on the Securities and all other amounts due and payable under this Indenture and the Securities by the Partnership, such Security when and as such principal, premium, if any, and interest the same shall become due and payable, whether at the stated maturity or by Stated Maturity, upon declaration of acceleration, call for redemption or otherwise, according to in accordance with the terms of such Security and of this Indenture and all amounts payable by the Securities and this Indenture, subject to Company under the limitations set forth in Section 11.03 and Indenture (ii) in the “Guarantee”). In case of the Guarantee failure of the Subordinated SecuritiesCompany punctually to make any such payment, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated Fibria hereby agrees to pay or cause such payment to be made punctually when and as the same immediatelyshall become due and payable, subjectwhether at Stated Maturity, in upon declaration of acceleration or redemption or otherwise, and as if such payment were made by the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the GuaranteeCompany. Each of the Subsidiary Guarantors hereby Fibria agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Securities or this Indenture, the absence of any action to enforce the same, any exchange, or any release or amendment or waiver of any term of the Guarantee of all or any of the Securities, or any consent to departure from any requirement of the Guarantee of all or any of the Securities, the election by the Trustee or any of the Holders in any proceeding under any applicable Bankruptcy Law, the disallowance, under any applicable Bankruptcy Law, of all or any portion of the claims of the Trustee or any of the Holders for payment of any of the Securities (including any interest or Additional Amounts), any waiver or consent by any the Holder of any Security or by the Securities Trustee with respect to any provisions hereof thereof or thereofof this Indenture or with respect to the provisions of this Article XII as they apply to Fibria, the recovery obtaining of any judgment against the Partnership or any Subsidiary Guarantor, Company or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of Fibria. Fibria hereby waives the Subsidiary Guarantors. Each benefits of diligence, presentment, demand of payment, any requirement that the Trustee or any of the Subsidiary Guarantors Holders protect, secure, perfect or insure any security interest in or other Lien on any property subject thereto or exhaust any right or take any action against the Company or any other Person, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to any Security or the Debt evidenced thereby and all demands whatsoever, and covenants that the Guarantee shall not be discharged in respect of any Security except by complete performance of the obligations contained in that Security and in the Guarantee. Fibria hereby agrees that that, in the event of a default Default in payment of the principal of, (or premium, if any, ) or interest on the Securitiesany Security, whether at the Stated Maturity or by Maturity, upon declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of the Holders orthat Security, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor Fibria to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations Company. Fibria agrees if, after the occurrence and during the continuance of each an Event of Default, the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership Trustee or any of the Subsidiary Guarantors contained in Holders are prevented by applicable law from exercising their respective rights to accelerate the Securities or this Indenture, (ii) any impairment, modification, release or limitation Stated Maturity of the liability of Securities, to collect interest on the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcySecurities, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert enforce or exercise any such rights other right or remedies, (iv) the assignment or the purported assignment of any property as security for remedy with respect to the Securities, including all or any part to pay to the Trustee for the account of the Holders, upon demand thereof, the amount that would otherwise have been due and payable had such rights of and remedies been permitted to be exercised by the Partnership Trustee or any of the Subsidiary Guarantors Holders. Fibria hereby waives any benefits to which it is entitled under this IndentureArticles 333, (v) the extension 827, 828, 834, 835, 838 and 839 of the time for payment by the Partnership or any Brazilian Civil Code, and Article 595 of the Subsidiary Guarantors Brazilian Code of Civil Procedure. The Guarantee shall remain in full force and effect and continue to be effective should any payments petition be filed by or other sums against the Company for liquidation or any part thereof owing reorganization, should the Company become insolvent or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, make an assignment for the benefit of creditors, reorganization, arrangement, composition creditors or readjustment of, should a receiver or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or any of the Subsidiary Guarantors, and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may trustee be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time appointed for all or any significant part of any payment theretofore applied by any Person to the Guarantee isCompany’s assets, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee and shall, to the fullest extent that such payment is or must be rescinded or returnedpermitted by law, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by an obligee on the Securities whether as a “voidable preference,” “fraudulent transfer,” or otherwise, all as though such application had payment or performance has not been made.
(f) Each of . In the Subsidiary Guarantors shall event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be subrogated to all rights of the Holders reinstated and the Trustee against the Partnership in respect of any amounts paid deemed reduced only by such Subsidiary Guarantor amount paid and not so rescinded, restored or returned. Rights of Holders to payment in full under the Securities pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, Guarantee shall not be entitled to enforce or to receive any payments arising out of, or based upon, such equal in right of subrogation until payment with all other existing and future senior unsecured obligations of the Securities Fibria, subject to certain statutory preferences under applicable law, and the Guarantee shall have been paid senior in full or dischargedright of payment to Fibria’s subordinated debt.
Appears in 1 contract
Sources: Indenture (Fibria Celulose S.A.)
Unconditional Guarantee. (a1) Notwithstanding any provision of this Article XI Thirteen to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors Thirteen shall be applicable only to, and inure solely to the benefit of, the Securities of any series Series designated, pursuant to Section 2.01 2.02(15), as entitled to the benefits of the a Guarantee identified in such designation and that has executed a Notation of each of the Subsidiary GuarantorsGuarantee with respect to such Series.
(b2) For value received, each of the Subsidiary Guarantors Guarantor hereby fully, unconditionally and absolutely guarantees (for purpose of any Series of Securities to which this Article Thirteen applies, the "“Guarantee"”) to the Holders and to the Trustee on behalf of the Holders the due and punctual payment of the principal of, and premium, if any, and interest on each Series of Securities for which the Securities Guarantor has executed a Notation of Guarantee with respect to such Series and all other amounts due and payable under this Indenture and the Securities of such Series by the PartnershipCompany, when and as such principal, premium, if any, and interest and other amounts shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the such Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities13.03, to the subordination provisions contained in Article X.if applicable.
(c3) Failing payment when due of any amount guaranteed pursuant to the a Guarantee, for whatever reason, each of the Subsidiary Guarantors Guarantor will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. . The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary Guarantor, Company or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary GuarantorsGuarantor. Each of the Subsidiary Guarantors The Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, of or interest on the SecuritiesSecurities entitled to a Guarantee, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.07, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary the Guarantor to enforce the such Guarantee without first proceeding against the Partnership or any other Subsidiary GuarantorCompany.
(d4) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors Guarantor hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or any of the Subsidiary GuarantorsCompany, and all demands whatsoever, whatsoever and (ii) acknowledges that any agreement, instrument or document evidencing the a Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the a Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guaranteeit. Each of the Subsidiary Guarantors The Guarantor further agrees that if at any time all or any part of any payment theretofore applied by any Person person to the any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary GuarantorsCompany, the such Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the such Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f5) Each of the Subsidiary Guarantors The Guarantor shall be subrogated to all rights of the Holders and the Trustee against the Partnership Company in respect of any amounts paid by such Subsidiary the Guarantor pursuant to the provisions of this Indenture, ; provided, however, that such Subsidiary Guarantor, the Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities entitled to a Guarantee and the such Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Sources: Indenture (Retail Opportunity Investments Partnership, LP)
Unconditional Guarantee. (a) Notwithstanding Subject to any provision of this Article XI other provisions set forth in the Authorizing Resolution or supplemental indenture relating to the contrarya particular Series, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only toGuarantor hereby unconditionally, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees Guarantees (the "Guarantee") to each Holder of Securities of such Series authenticated and delivered by the Holders Trustee and to the Trustee the due and punctual payment of its successors and assigns, that: (i) the principal ofof and interest on the Securities of such Series will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration or otherwise and premiuminterest on the overdue principal, if any, and interest on any interest of the Securities of such Series and all other amounts due and payable under this Indenture and obligations of the Securities by Company to the PartnershipHolders or the Trustee hereunder or thereunder, when and as such principal, premium, if any, except obligations to pay principal and interest shall become on any other Series not so Guaranteed, will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Securities of such Series or of any such other obligations, the same will be promptly paid in full when due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities and this Indentureextension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise, subject, however, in the case of clauses (i) and (ii) above, to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. 9.04. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee Securities of any Subsidiary Guarantor) such Series or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities of such Series with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary GuarantorsGuarantor. Each of the Subsidiary Guarantors The Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the obligations contained in the Securities of the applicable Series, this Indenture and in the Guarantee. Each of If any Holder or the Subsidiary Guarantors further agrees that if at Trustee is required by any time all court or otherwise to return to the Company, the Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee isCompany or the Guarantor, any amount paid by the Company or must be, rescinded the Guarantor to the Trustee or returned for any reason whatsoever, including without limitationsuch Holder, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shallGuarantee, to the extent that such payment is or must theretofore discharged, shall be rescinded or returnedreinstated in full force and effect. The Guarantor further agrees that, be deemed to have continued in existence notwithstanding such applicationas between each Guarantor, on the one hand, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against Trustee, on the Partnership other hand, (x) the maturity of the obligations Guaranteed hereby may be accelerated as provided in Article Six for the purposes of the Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Guaranteed hereby, and (y) in the event of any amounts paid by acceleration of such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based uponobligations as provided in Article Six, such right of subrogation until all obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of the Securities and the Guarantee shall have been paid in full or dischargedGuarantee.
Appears in 1 contract
Unconditional Guarantee. Each Additional Guarantor (hereinafter referred to as a "Subsidiary Guarantor") hereby, jointly and severally, agrees as follows:
(a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each Each of the Subsidiary Guarantors hereby fullyjointly and severally and unconditionally guarantees, unconditionally and absolutely guarantees on a senior basis (the each such guarantee being a "Subsidiary Guarantee") ), to the Holders each Holder of a Note authenticated and to delivered by the Trustee irrespective of the due and punctual payment validity or enforceability of the Indenture, the Notes or the obligations of the Company under the Indenture or the Notes, that: (i) the principal of, and premium, if any, and interest on the Securities and all other amounts due and payable under this Indenture and the Securities by the Partnership, Notes shall be paid in full when and as such principal, premium, if any, and interest shall become due and payabledue, whether at the stated maturity or interest payment or optional or mandatory redemption date, by declaration of acceleration, call for redemption or otherwise, according and interest on the overdue principal and interest, if any, of the Notes and all other obligations of the Company to the Holders or the Trustee under the Indenture or the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Securities Indenture and this Indenture, subject to the limitations set forth in Section 11.03 Notes and (ii) in the case of any extension of time of payment or renewal of any Notes or any of such other obligations, they shall be paid in full when due or performed in accordance with the Guarantee terms of the Subordinated Securitiesextension or renewal, to the subordination provisions contained in Article X.
(c) whether at maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will Guarantor shall be jointly and severally obligated to pay the same immediately, subject, in the case whether or not such failure to pay has become an Event of Default that could cause acceleration pursuant to Section 6.2 of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) Indenture. Each Subsidiary Guarantor agrees that this is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right guarantee of payment with all Debt not a guarantee of such collection.
(b) Each Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder with regard to its Subsidiary Guarantee shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity validity or enforceability of the Securities, Notes or the Guarantee (including obligations of the Guarantee of any Subsidiary Guarantor) or this Company under the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership Company or any Subsidiary Guarantorother obligor with respect to the Indenture, the Notes or the obligations of the Company under the Indenture or the Notes, any action to enforce the same or any other circumstances which (other than complete performance) that might otherwise constitute a legal or equitable discharge or defense of the a Subsidiary GuarantorsGuarantor. Each Subsidiary Guarantor further, to the extent permitted by law, waives and relinquishes all claims, rights and remedies accorded by applicable law to guarantors and agrees not to assert or take advantage of any such claims, rights or remedies, including but not limited to: (i) any right to require the Trustee, the Holders or the Company (each, a "Benefitted Party") to proceed against the Company or any other Person or to proceed against or exhaust any security held by a Benefitted Party at any time or to pursue any other remedy in any Benefitted Party's power before proceeding against such Subsidiary Guarantor; (ii) the defense of the Subsidiary Guarantors statute of limitations in any action hereunder or in any action for the collection of any Indebtedness or the performance of any obligation hereby agrees guaranteed; (iii) any defense that in may arise by reason of the event incapacity, lack of authority, death or disability of any other Person or the failure of a default Benefitted Party to file or enforce a claim against the estate (in payment administration, bankruptcy or any other proceeding) of any other Person; (iv) demand, protest and notice of any kind, including but not limited to, notice of the principal ofexistence, creation or premium, if any, incurring of any new or interest additional Indebtedness or obligation or of any action or non-action on the SecuritiesRAM Energy, whether at Inc. SUPPLEMENTAL INDENTURE part of such Subsidiary Guarantor, the Stated Maturity Company, any Benefitted Party, any creditor of such Subsidiary Guarantor, the Company or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth part of any other Person whomsoever in this Indentureconnection with any Indebtedness or obligations hereby guaranteed; (v) any defense based upon an election of remedies by a Benefitted Party, directly including but not limited to, an election to proceed against such Subsidiary Guarantor to enforce for reimbursement; (vi) any defense based upon any statute or rule of law that provides that the Guarantee without first proceeding against the Partnership or any obligation of a surety must be neither larger in amount nor in other Subsidiary Guarantor.
(d) The obligations of each respects more burdensome than that of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, principal; (ivii) any compromisedefense arising because of a Benefitted Party's election, settlement, release, waiver, renewal, extension, indulgence or modification of, or in any change in, proceeding instituted under any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee application of any rights or remedies Section 1111(b)(2) under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, Bankruptcy Law; (viii) any defense based on any borrowing or grant of a security interest under Section 364 under the release Bankruptcy Law or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) any right to require a proceeding first against the unenforceability of the SecuritiesCompany, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligenceprotest, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or any of the Subsidiary Guarantors, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) . Each Subsidiary Guarantor hereby covenants that the its Subsidiary Guarantee will not be discharged except by complete performance of all of the obligations contained in its Subsidiary Guarantee, the Notes and the Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to either the Company or any Subsidiary Guarantor, or any custodian, trustee, or similar official acting in relation to either the Company or such Subsidiary Guarantor, any amount paid by the Company or such Subsidiary Guarantor to the Trustee or such Holder, the applicable Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby.
(d) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.2 of the Indenture for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration as to the Company or any other obligor on the Notes of the obligations guaranteed hereby and (ii) in the event of any declaration of acceleration of those obligations as provided in Section 6.2 of the Indenture, those obligations (whether or not due and payable) will forthwith become due and payable by such Subsidiary Guarantor for the purpose of this Subsidiary Guarantee.
(e) Each Subsidiary Guarantor and by its acceptance hereof, each beneficiary hereof, hereby confirm that it is its intention that the Subsidiary Guarantee by such Subsidiary Guarantor not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any of the Subsidiary Guarantors further Guarantees. To effectuate the foregoing intention, each such Person hereby irrevocably agrees that if at the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee under Article 10 of the Indenture shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its contribution obligations under the Indenture, result in the obligations of such Subsidiary Guarantor under the Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law.
(f) For purposes of the limitations and the applicable fraudulent conveyance laws referred to in the preceding clause (e), any indebtedness of a Subsidiary Guarantor incurred from time all to time pursuant to a Permitted Bank Credit Facility and secured by a perfected Lien on the assets of such Subsidiary Guarantor (assuming, for purposes of such determination, that the incurrence of any such indebtedness and the granting of any such security interest did not violate any such fraudulent conveyance laws) shall be deemed, to the extent RAM Energy, Inc. SUPPLEMENTAL INDENTURE of the value of the assets subject to such Lien, to have been incurred prior to the incurrence by such Subsidiary Guarantor of liability under its Subsidiary Guarantee.
(g) Each beneficiary under the Subsidiary Guarantees, by accepting the benefits hereof, confirms its intention that, in the event of a bankruptcy, reorganization or other similar proceeding of the Company or any part of any payment theretofore applied by any Person Subsidiary Guarantor in which concurrent claims are made upon such Subsidiary Guarantor hereunder, to the Guarantee isextent such claims will not be fully satisfied, or must be, rescinded or returned each claimant with a valid claim against the Company shall be entitled to a ratable share of all payments by such Subsidiary Guarantor in respect of such concurrent claims.
(h) In order to provide for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of just and equitable contribution among the Subsidiary Guarantors, the Guarantee shallSubsidiary Guarantors agree, inter se, that in the event any payment or distribution is made by any Subsidiary Guarantor (a "Funding Guarantor") under a Subsidiary Guarantee, such Funding Guarantor shall be entitled to a contribution from all other Subsidiary Guarantors in a pro rata amount based on the Adjusted Net Assets (as defined below) of each Subsidiary Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by that Funding Guarantor in discharging the Company's obligations with respect to the extent Notes or any other Subsidiary Guarantor's obligations with respect to such Subsidiary Guarantee. "Adjusted Net Assets" of such Subsidiary Guarantor at any date shall mean the lesser of the amount by which (x) the fair value of the property of such Subsidiary Guarantor exceeds the total amount of liabilities, including, without limitation, contingent liabilities, but excluding liabilities under the Subsidiary Guarantee of such Subsidiary Guarantor at such date and (y) the present fair salable value of the assets of such Subsidiary Guarantor at such date exceeds the amount that will be required to pay the probable liability of such payment is Subsidiary Guarantor on its debts (after giving effect to all other fixed and contingent liabilities incurred or must be rescinded or returnedassumed on such date and after giving effect to any collection from any Subsidiary of such Subsidiary Guarantor in respect of the obligations of such Subsidiary under the Subsidiary Guarantees), be deemed to have continued excluding debt in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each respect of the Subsidiary Guarantors shall be subrogated to all rights of the Holders Guarantees, as they become absolute and the Trustee against the Partnership in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid in full or dischargedmatured.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision Each of this Article XI to the contraryundersigned Guarantors hereby unconditionally guarantees, for the benefit of Parent, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit ofTrustee, the Securities of any series designatedLenders, pursuant to Section 2.01 as entitled to the benefits Agent and holders of the Guarantee of each of Securities and the Subsidiary Guarantors.
Commercial Paper, jointly and severally, (bi) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "Guarantee") to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, of and interest on the Securities and all other amounts the Indebtedness, whether at maturity, by acceleration or otherwise, the due and payable under this Indenture punctual payment of interest on the overdue principal and the Securities by the Partnership, when and as such principal, premiuminterest, if any, on the Securities and interest shall become the Indebtedness, to the extent lawful and (ii) in case of any extension of time of payment or renewal of any Securities or the Indebtedness or any of such other obligations that the same will be promptly paid in full when due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities extension or renewal, whether at stated maturity, by acceleration or otherwise, subject, however, in the case of clauses (i) and this Indenture(ii) above, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee2 below. Each of the Subsidiary Guarantors Guarantor hereby agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, Securities or the Guarantee (including the Guarantee of any Subsidiary Guarantor) or this IndentureIndebtedness, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities or Lender with respect to any provisions hereof of the Indenture or thereofthe documents evidencing the Indebtedness, the recovery of any judgment against the Partnership or any Subsidiary GuarantorParent, or any action to enforce the same or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorsa guarantor. Each of the Subsidiary Guarantors Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Parent, any of right to require a proceeding first against the Subsidiary GuarantorsParent, protest, notice and all demands whatsoeverwhatsoever and covenants that, (ii) acknowledges that any agreementsubject to the release of a Guarantor described in Section 4, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the this Guarantee will not be discharged except by complete performance of the obligations contained in the Securities, the documents evidencing the Indebtedness, the Indenture and in this Guarantee, as the case may be. Each If any Holder of the Subsidiary Guarantors further agrees that if at Securities, any time all Lender or the Trustee is required by any court or otherwise to return to the Parent, any Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Parent or any of Guarantor, any amount paid by the Subsidiary GuarantorsParent or any Guarantor to the Trustee or such Holder or Lender, the Guarantee shallthis Guarantee, to the extent that such payment is or must theretofore discharged, shall be rescinded or returnedreinstated in full force and effect. Each Guarantor further agrees that, be deemed to have continued in existence notwithstanding such applicationas between each Guarantor, on the one hand, and the Guarantee shall continue to Holders, Lenders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be effective accelerated as provided in the Indenture or be reinstatedthe documents evidencing the Indebtedness, as the case may be, as though for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any amounts paid acceleration of such obligations as provided in the Indenture or the documents evidencing the Indebtedness, such obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary each Guarantor pursuant to for the provisions purpose of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid in full or dischargedGuarantee.
Appears in 1 contract
Sources: Guarantee (Precision Castparts Corp)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI XIV to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors XIV shall be applicable only to, and inure solely to the benefit of, the Debt Securities of any series designated, pursuant to Section 2.01 2.03, as entitled to the benefits of the Guarantee of each any of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "Guarantee") to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Debt Securities and all other amounts due and payable under this Indenture and the Debt Securities by the PartnershipCompany, when and as such principal, premium, if any, interest and interest other amounts shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Debt Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.14.03.
(c) Failing payment when due of any amount guaranteed pursuant to the its Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. . The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Debt Securities, the its Guarantee (including the Guarantee of any other Subsidiary Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by the Trustee or any Holder of the Debt Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership Company or any Subsidiary other Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of any of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Debt Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.04, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the its Guarantee without first proceeding against the Partnership Company or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI XIV shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (iA) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership Company or any of the Subsidiary Guarantors contained in the Debt Securities or this Indenture, (iiB) any impairment, modification, release or limitation of the liability of the PartnershipCompany, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iiiC) the assertion or exercise by the PartnershipCompany, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Debt Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (ivD) the assignment or the purported assignment of any property as security for the Debt Securities, including all or any part of the rights of the Partnership Company or any of the Subsidiary Guarantors under this Indenture, (vE) the extension of the time for payment by the Partnership Company or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Debt Securities or this Indenture or of the time for performance by the Partnership Company or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (viF) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership Company or any of the Subsidiary Guarantors set forth in this Indenture, (viiG) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership Company or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Debt Securities, the Guarantee or this Indenture in any such proceeding, (viiiH) the release or discharge of the Partnership Company or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ixI) the unenforceability of the Debt Securities, the any other Guarantee or this Indenture or (xJ) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (iA) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership Company or any of the Subsidiary other Guarantors, and all demands whatsoever, (iiB) acknowledges that any agreement, instrument or document evidencing the its Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iiiC) covenants that the its Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the its Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of the Subsidiary other Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership Company in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Debt Securities and the each Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Sources: Indenture (Acin LLC)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI Fifteen to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors Fifteen shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 3.01, as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby jointly and severally, fully, unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Securities and all other amounts due and payable under this Indenture and the Securities by the PartnershipCompany, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.15.03.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. . The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary each Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary other Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership Company or any Subsidiary other Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of any of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.065.07, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership Company or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI Fifteen shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership Company or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the PartnershipCompany, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy LawFederal or State bankruptcy, as amendedinsolvency, reorganization or similar law, or other statute or from the decision of any court, (iii) the assertion or exercise by the PartnershipCompany, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership Company or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership Company or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership Company or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership Company or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership Company or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership Company or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, bankruptcy, insolvency or bankruptcy reorganization of the Partnership Company or any of the Subsidiary Guarantors, and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvencybankruptcy, bankruptcy insolvency or reorganization of the Partnership Company or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership Company in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Sources: Indenture (Chattem Inc)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI XIV to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors XIV shall be applicable only to, and inure solely to the benefit of, the Debt Securities of any series designated, pursuant to Section 2.01 2.03, as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "Guarantee") to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Debt Securities and all other amounts due and payable under this Indenture and the Debt Securities by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Debt Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.14.03.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. . The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Debt Securities, the Guarantee (including the Guarantee of any other Subsidiary Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Debt Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any other Subsidiary Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Debt Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.04, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI XIV shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Debt Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any either of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Debt Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Debt Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Debt Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Debt Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Debt Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or any of the Subsidiary Guarantors, and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Debt Securities and the Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Sources: Indenture (Pacific Energy Group LLC)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Debt Securities of any series designated, pursuant to Section 2.01 3.01, as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders of such series of Debt Securities and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Debt Securities and all other amounts due and payable under this Indenture and the Debt Securities by the PartnershipCompany, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Debt Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.17.03.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt unsecured debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder are guarantees of payment and not of collection and shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Debt Securities, the Guarantee (including the Guarantee of any Subsidiary other Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Debt Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership Company or any Subsidiary other Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Debt Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.065.07, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership Company or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (iA) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership Company or any of the Subsidiary Guarantors contained in the Debt Securities or this Indenture, (iiB) any impairment, modification, release or limitation of the liability of the PartnershipCompany, any of the Subsidiary Guarantors or any either of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amendedbankruptcy law, or other statute or from the decision of any court, (iiiC) the assertion or exercise by the PartnershipCompany, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Debt Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (ivD) the assignment or the purported assignment of any property as security for the Debt Securities, including all or any part of the rights of the Partnership Company or any of the Subsidiary Guarantors under this Indenture, (vE) the extension of the time for payment by the Partnership Company or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Debt Securities or this Indenture or of the time for performance by the Partnership Company or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (viF) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership Company or any of the Subsidiary Guarantors set forth in this Indenture, (viiG) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership Company or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Debt Securities, the Guarantee or this Indenture in any such proceeding, (viiiH) the release or discharge of the Partnership Company or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ixI) the unenforceability of the Debt Securities, the Guarantee or this Indenture or (xJ) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (iA) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership Company or any of the Subsidiary Guarantors, and all demands whatsoever, (iiB) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iiiC) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership Company in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Debt Securities and the Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Sources: Indenture (Scotts Miracle-Gro Co)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors Guarantor hereby fully, unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Debt Securities and all other amounts due and payable under this Indenture and the Debt Securities by the PartnershipIssuer, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Debt Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) to, in the case of the Guarantee of the Subordinated Debt Securities, to the subordination provisions contained in of Article X.XII.
(cb) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors Guarantor will be jointly and severally obligated to pay the same immediately, subjectsubject to, in the case of the Guarantee of the Subordinated Debt Securities, the subordination provisions of Article XII. The Guarantee hereunder (except in the case of Subordinated Debt Securities, which is subject to the subordination provisions contained in of Article X. The Guarantee hereunder (other than the Guarantee of Subordinated SecuritiesXII) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors Guarantor and will rank pari passu in right of payment with all Debt of such Subsidiary the Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors The Guarantor hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Debt Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Debt Securities with respect to any provisions hereof or thereof, the recovery of any judgment against either of the Partnership or any Subsidiary GuarantorIssuer, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each any of the Subsidiary Guarantors Guarantor. The Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Debt Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.04, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary the Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary GuarantorIssuer.
(dc) The obligations of each of the Subsidiary Guarantors Guarantor under this Article XI XIV shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (iA) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership Issuer or any of the Subsidiary Guarantors Guarantor contained in the Debt Securities or this Indenture, (iiB) any impairment, modification, release or limitation of the liability of either the Partnership, any of Issuer or the Subsidiary Guarantors Guarantor or any either of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iiiC) the assertion or exercise by the PartnershipIssuer, any of the Subsidiary Guarantors Guarantor or the Trustee of any rights or remedies under the Debt Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (ivD) the assignment or the purported assignment of any property as security for the Debt Securities, including all or any part of the rights of either the Partnership Issuer or any of the Subsidiary Guarantors Guarantor under this Indenture, (vE) the extension of the time for payment by the Partnership Issuer or any of the Subsidiary Guarantors Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Debt Securities or this Indenture or of the time for performance by the Partnership Issuer or any of the Subsidiary Guarantors Guarantor of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (viF) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership Issuer or any of the Subsidiary Guarantors Guarantor set forth in this Indenture, (viiG) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership Issuer or any of the Subsidiary Guarantors Guarantor or any either of their respective assets, or the disaffirmance of the Debt Securities, the Guarantee or this Indenture in any such proceeding, (viiiH) the release or discharge of the Partnership Issuer or any of the Subsidiary Guarantors Guarantor from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ixI) the unenforceability of the Debt Securities, the Guarantee or this Indenture or (xJ) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(ed) Each of the Subsidiary Guarantors The Guarantor hereby (iA) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership Issuer or any of the Subsidiary GuarantorsGuarantor, and all demands whatsoever, (iiB) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iiiC) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors The Guarantor further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of either the Partnership Issuer or any of the Subsidiary GuarantorsGuarantor, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(fe) Each of the Subsidiary Guarantors The Guarantor shall be subrogated to all rights of the Holders and the Trustee against the Partnership Issuer in respect of any amounts paid by such Subsidiary the Guarantor pursuant to the provisions of this Indenture, ; provided, however, that such Subsidiary the Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Debt Securities and the Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI XII to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors XII shall be applicable only to, and inure solely to the benefit of, the Securities of any series Series designated, pursuant to Section 2.01 2.2.23, as entitled to the benefits of the Guarantee of each Guarantor identified in such designation and that has executed a Notation of the Subsidiary GuarantorsGuarantee with respect to such Series.
(b) For value received, each of the Subsidiary Guarantors Guarantor hereby jointly and severally, fully, unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, of and interest on the each Series of Securities for which such Guarantor has executed a Notation of Guarantee with respect to such Series and all other amounts due and payable under this Indenture and the Securities of such Series by the Operating Partnership, when and as such principal, premium, if any, principal and interest shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the such Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.12.3.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary other Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Operating Partnership or any Subsidiary other Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of any of the Subsidiary Guarantors. Each of the Subsidiary Guarantors Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, of or interest on the SecuritiesSecurities entitled to the Guarantee of such Guarantor, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.7, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Operating Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors Guarantor hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Operating Partnership or any of the Subsidiary Guarantors, and all demands whatsoever, whatsoever and (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guaranteeit. Each of the Subsidiary Guarantors Guarantor further agrees that if at any time all or any part of any payment theretofore applied by any Person person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Operating Partnership or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(fe) Each of the Subsidiary Guarantors Guarantor shall be subrogated to all rights of the Holders and the Trustee against the Operating Partnership in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, ; provided, however, that such Subsidiary Guarantor, Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities entitled to the Guarantee of such Guarantor and the Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Sources: Indenture (MedEquities Realty Operating Partnership, LP)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI Subject to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit ofTwo, the Securities of any series designatedNew Guarantor hereby, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fullyjointly and severally, unconditionally and absolutely guarantees irrevocably guarantees, on a senior basis (the such guarantee to be referred to herein as a "GuaranteeGUARANTEE") to each Holder of a Note authenticated and delivered by the Holders Trustee and to the Trustee and its successors and assigns, irrespective of the due validity and punctual payment enforceability of the Indenture, the Notes or the obligations of the Issuer or any other Guarantor to the Holders or the Trustee thereunder, that: (a) the principal of, and premium, if any, and interest on the Securities Notes (and all other amounts due any Additional Interest payable thereon) shall be duly and payable under this Indenture punctually paid in full when due, whether at maturity, upon redemption, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ Holders pursuant to the provisions of the Notes relating thereto, by acceleration or otherwise, and interest on the Securities overdue principal and (to the extent permitted by the Partnership, when and as such principal, premiumlaw) interest, if any, on the Notes and interest all other obligations of the Issuer or the New Guarantor to the Holders or the Trustee thereunder or under the Indenture (including amounts due to the Trustee under Article 7.07 of the Indenture) and all other obligations shall become be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall be promptly paid in full when due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities and this Indentureextension or renewal, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securitieswhether at maturity, to the subordination provisions contained in Article X.
(c) by acceleration or otherwise. Failing payment when due of any amount guaranteed pursuant so guaranteed, or failing performance of any other obligation of the Issuer to the GuaranteeHolders under the Indenture or under the Notes, for whatever reason, each of the Subsidiary Guarantors will New Guarantor shall be jointly and severally obligated obliged to pay pay, or to perform or cause the performance of, the same immediately. An Event of Default under the Indenture or the Notes shall constitute an event of default under this Guarantee, subject, and shall entitle the Holders of Notes to accelerate the obligations of the New Guarantor hereunder in the case same manner and to the same extent as the obligations of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. Issuer. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary New Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, Notes or the Guarantee (including the Guarantee of any Subsidiary Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities Notes with respect to any provisions hereof or thereofof the Notes or the Indenture, any release of any other Guarantor, the recovery of any judgment against the Partnership or any Subsidiary GuarantorIssuer, or any action to enforce the same same, whether or not a Guarantee is affixed to any particular Note, or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary GuarantorsNew Guarantor. Each of To the Subsidiary Guarantors fullest extent permitted by law, the New Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for waives the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Issuer, any of right to require a proceeding first against the Subsidiary GuarantorsIssuer, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the its Guarantee will shall not be discharged except by complete performance of the obligations contained in the Notes, the Indenture and this Guarantee. Each The Guarantee is a guarantee of payment and not of collection. If any Holder or the Subsidiary Guarantors further agrees that if at Trustee is required by any time all court or otherwise to return to the Issuer or to any Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee isIssuer or the New Guarantor, any amount paid by the Issuer or must be, rescinded any Guarantor to the Trustee or returned for any reason whatsoever, including without limitationsuch Holder, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shallGuarantee, to the extent that such payment is or must theretofore discharged, shall be rescinded or returnedreinstated in full force and effect. The New Guarantor further agrees that, be deemed to have continued in existence notwithstanding such applicationas between it, on the one hand, and the Guarantee shall continue Holders of Notes and the Trustee, on the other hand, (a) subject to be effective or be reinstatedthis Article Two, as the case may be, as though such application had not been made.
(f) Each maturity of the Subsidiary Guarantors shall obligations guaranteed hereby may be subrogated to all rights accelerated as provided in Article Six of the Holders and Indenture for the Trustee against purposes of the Partnership Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (b) in the event of any amounts paid acceleration of such obligations as provided in Article Six of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary the New Guarantor pursuant to for the provisions purpose of this IndentureGuarantee. If the New Guarantor makes a payment or distribution under its Guarantee, provided, however, that such Subsidiary Guarantor, it shall not be entitled to enforce or to receive any payments arising out of, or a contribution from each other Guarantor in an amount pro rata based upon, such right on the net assets of subrogation until all of the Securities and the Guarantee shall have been paid each Guarantor determined in full or dischargedaccordance with GAAP.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision Each Subsidiary Guarantor hereby jointly and severally unconditionally Guarantees to each Holder of this Article XI to a Security authenticated and delivered by the contraryTrustee, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "Guarantee") to the Holders and to the Trustee on behalf of such Holder, the due full and punctual payment of the principal of, of and premium, if any, interest and interest on the Securities and all other amounts due and payable under this Indenture and the Securities by the Partnership, when and as such principal, premiumLiquidated Damages, if any, on such Security when and interest as the same shall become due and payable, whether at the stated maturity or Stated Maturity, by declaration of acceleration, call for redemption redemption, purchase or otherwise, according to in accordance with the terms of the Securities such Security and of this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the . In case of the Guarantee failure of the Subordinated Securities, Issuers punctually to the subordination provisions contained in Article X.
(c) Failing payment when due of make any amount guaranteed pursuant to the Guarantee, for whatever reasonsuch payment, each of the Subsidiary Guarantors will be Guarantor hereby jointly and severally obligated agrees to pay or cause such payment to be made punctually when and as the same immediatelyshall become due and payable, subjectwhether at the Stated Maturity, in by acceleration, call for redemption, purchase or otherwise, and as if such payment were made by the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Issuers. Each Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby jointly and severally agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) such Security or this Indenture, the absence of any action to enforce the same, any exchange, release or non-perfection of any Lien on any collateral for, or any release or amendment or waiver of any term of any other Guarantee of all or any of the Securities, or any consent to departure from any requirement of any other Guarantee of all or any of the Securities, the election by the Trustee or any of the Holders in any proceeding under Chapter 11 of the Federal Bankruptcy Code, or the application of Section 1111(b)(2) of the Federal Bankruptcy Code, any borrowing or grant of a security interest by the Company or Finance Corp., as debtor-in-possession, under Section 364 of the Federal Bankruptcy Code, the disallowance, under Section 502 of the Federal Bankruptcy Code, of all or any portion of the claims of the Trustee or any of the Holders for payment of any of the Securities (including, without limitation, any interest, Liquidated Damages or premium thereon), any waiver or consent by any the Holder of such Security or by the Securities Trustee with respect to any provisions hereof thereof or thereofof this Indenture or with respect to the provisions of this Article XIII as they apply to any other Subsidiary Guarantor, the recovery obtaining of any judgment against the Partnership Company or any Subsidiary Guarantor, Finance Corp. or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorsa guarantor. Each Subsidiary Guarantor hereby waives the benefits of diligence, presentment, demand of payment, any requirement that the Trustee or any of the Holders protect, secure, perfect or insure any security interest in or other Lien on any property subject thereto or exhaust any right or take any action against the Company or Finance Corp. or any other Person, filing of claims with a court in the event of insolvency or bankruptcy of the Company or Finance Corp., any right to require a proceeding first against the Company or Finance Corp., protest or notice with respect to such Security or the Indebtedness evidenced thereby and all demands whatsoever, and covenants that its Subsidiary Guarantors Guarantee will not be discharged in respect of such Security except by complete performance of the obligations contained in such Security and in such Subsidiary Guarantee. Each Subsidiary Guarantor hereby agrees that that, in the event of a default in payment of the principal of, of or premium, if any, interest or interest Liquidated Damages, if any, on the Securitiessuch Security, whether at the their Stated Maturity or Maturity, by declaration of acceleration, call for redemption redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of the Holders orsuch Security, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership all or any of the Subsidiary Guarantors contained in to enforce their respective Subsidiary Guarantees without first proceeding against the Securities Company or this IndentureFinance Corp. Each Subsidiary Guarantor agrees that if, (ii) any impairmentafter the occurrence and during the continuance of an Event of Default, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) Holders are prevented by applicable law from exercising their respective rights to accelerate the extension maturity of the time Securities, to collect interest on the Securities, or to enforce or exercise any other right or remedy with respect to the Securities, such Subsidiary Guarantor agrees to pay to the Trustee for payment the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Partnership Trustee or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or any of the Subsidiary Guarantors, and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the GuaranteeHolders. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors Guarantor shall be subrogated to all rights of the Holders and of the Trustee Securities against the Partnership Issuers in respect of any amounts paid by such that Subsidiary Guarantor on account of such Securities pursuant to the provisions of its Subsidiary Guarantee of this Indenture; PROVIDED, provided, howeverHOWEVER, that such no Subsidiary Guarantor, Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until the principal of and premium, if any, interest and Liquidated Damages, if any, on all of the Securities and the Guarantee issued hereunder shall have been paid in full. Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective if any petition is filed by or dischargedagainst the Company or Finance Corp. for liquidation or reorganization, if the Company or Finance Corp. becomes insolvent or makes an assignment for the benefit of creditors or if a receiver or trustee is appointed for all or any significant part of the Company's or Finance Corp.'s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by an obligee on the Securities whether as a "voidable preference," "fraudulent transfer," or otherwise, all as though such payment or performance has not been made. If any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. 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 Guarantees or under this Article XIII in accordance with Section 13.7. The obligations of each Subsidiary Guarantor to the Holders and to the Trustee pursuant to its Subsidiary Guarantee and this Indenture constitute senior unsecured obligations of that Subsidiary Guarantor.
Appears in 1 contract
Sources: Indenture (Egan Hub Partners Lp)
Unconditional Guarantee. (a) Notwithstanding any provision In consideration of Winterthur entering into this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors Agreement XL Insurance hereby fully, unconditionally and absolutely irrevocably guarantees (to Winterthur and the "Guarantee") to the Holders and to the Trustee the other Sellers due and punctual payment performance and observance by the Purchasers and any member of the principal of, and premium, if any, and interest on the Securities and all other amounts due and payable under this Indenture and the Securities by the Partnership, when and as XL Insurance Group (whether or not such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended person ceases to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt member of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right group after the Completion Date) of payment all their obligations under or for breach of or unenforceability of this Agreement or any agreement entered into pursuant to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee this Agreement (including the Guarantee of any Subsidiary Guarantorobligations to pay damages) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) the Sellers Retrocession Agreement, the Interim Arrangements, the Excluded Operations Reinsurance Agreements and the Interim Reinsurance Contracts but in the case of any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any member of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or any of the Subsidiary Guarantors, and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shall, XL Insurance Group only to the extent that such payment member is a party to this Agreement or must be rescinded or returned, be deemed any agreement entered into pursuant to have continued in existence notwithstanding such application, this Agreement (the "Guaranteed Purchaser Obligations"). In consideration of XL Insurance entering into this Agreement Winterthur hereby unconditionally and irrevocably guarantees to XL Insurance and the Guarantee shall continue Purchasers due and punctual performance and observance by the Sellers and any member of the Winterthur Group (whether or not such person ceases to be effective a member of such group after the Completion Date) of all their obligations under or be reinstatedfor breach of or unenforceability of this Agreement or any agreement entered into pursuant to this Agreement (including obligations to pay damages) including, as without limitation, the Sellers Retrocession Agreement, the Interim Arrangements, the Excluded Operations Reinsurance Agreements and the Interim Reinsurance Contracts but in the case may be, as though such application had not been made.
(f) Each of any member of the Subsidiary Guarantors shall be subrogated Winterthur Group only to all rights of the Holders and the Trustee against the Partnership in respect of extent that such member is a party to this Agreement or any amounts paid by such Subsidiary Guarantor agreement entered into pursuant to this Agreement (the provisions "Guaranteed Seller Obligations"). The liability of XL Insurance or Winterthur under this Indenture, provided, however, that such Subsidiary Guarantor, Clause 17 shall not be entitled to enforce released or to receive diminished by any payments arising out of, or based upon, such right of subrogation until all variation of the Securities and terms of the Guarantee shall have been paid Guaranteed Purchaser Obligations or the Guaranteed Seller Obligations as applicable, any forbearance, neglect or delay in full seeking performance of the Guaranteed Purchaser Obligations or dischargedthe Guaranteed Seller Obligations as applicable or any granting of time for such performance or by any assignment by Winterthur of the benefit of the Guaranteed Purchaser Obligations or the Guaranteed Seller Obligations as applicable in accordance with Clause 17.5.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision The Guarantor hereby unconditionally guarantees to each Holder of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities a Security of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally authenticated and absolutely guarantees (the "Guarantee") to the Holders and to delivered by the Trustee or Authenticating Agent the due and punctual payment of the principal of, of and premium, if any, and interest on such Security and the Securities and all other amounts due and payable under this Indenture and punctual payment of the Securities by sinking fund payments, if any, provided for pursuant to the Partnershipterms of such Security, when and as such principal, premium, if any, and interest the same shall become due and payable, whether at the stated maturity maturity, by acceleration or by declaration of acceleration, call for redemption or otherwise, according to in accordance with the terms of the Securities such Security and of this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the . In case of the Guarantee failure of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated Company punctually to pay any such principal, premium, interest or sinking fund payment, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same immediatelyshall become due and payable, subjectwhether at maturity, in upon acceleration or redemption or otherwise, and as if such payment were made by the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. Company. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be fullas principal and not merely as surety, unconditional and absoluteshall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) such Security or this Indenture, the absence of any action failure to enforce the sameprovisions of any such Security or this Indenture, or any waiver waiver, modification, consent or consent indulgence granted to the Company with respect thereto, by any the Holder of such Security or the Securities with respect to any provisions hereof or thereofTrustee, the recovery of any judgment against the Partnership or any Subsidiary Guarantor, Company or any action to enforce the same same, or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors . The Guarantor hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership Company, any right to require a proceeding first against the Company, protest or notice with respect to any of such Security or the Subsidiary Guarantors, indebtedness evidenced thereby and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the this Guarantee will not be discharged except by payment in full of the principal of and premium, if any, and interest on, and any sinking fund payments required with respect to, the Securities and the complete performance of all other obligations contained in the GuaranteeSecurities. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors The Guarantor shall be subrogated to all rights of the Holders and the Trustee Holder of any Security against the Partnership Company in respect of any amounts paid to such Holder by such Subsidiary the Guarantor pursuant to the provisions of this Indenture, Guarantee; provided, however, that such Subsidiary Guarantor, the Guarantor shall not be entitled to enforce enforce, or to receive any payments arising out of, of or based upon, such right of subrogation until the principal of and premium, if any, and interest on, and any sinking fund payments required with respect to, all of the Securities and the Guarantee shall have been paid in full. Claims under the Guarantee are, to the extent provided in this Indenture, subordinate and subject in right of payment to the prior payment in full or discharged.of all Senior Indebtedness of the Guarantor, and the
Appears in 1 contract
Sources: Indenture (Mellon Financial Corp)
Unconditional Guarantee. (a) 12.1.1. Notwithstanding any provision of this Article XI XII to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors XII shall be applicable only to, and inure solely to the benefit of, the Securities of any series Series designated, pursuant to Section 2.01 2.2.23, as entitled to the benefits of the Guarantee of each Guarantor identified in such designation and that has executed a Notation of the Subsidiary GuarantorsGuarantee with respect to such Series.
(b) 12.1.2. For value received, each of the Subsidiary Guarantors Guarantor hereby jointly and severally, fully, unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the each Series of Securities for which such Guarantor has executed a Notation of Guarantee with respect to such Series and all other amounts due and payable under this Indenture and the Securities of such Series by the PartnershipCompany, when and as such principal, premium, if any, interest, and interest such other amounts as shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the such Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.12.3.
(c) 12.1.3. Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary other Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership Company or any Subsidiary other Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of any of the Subsidiary Guarantors. Each of the Subsidiary Guarantors Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, of or interest on the SecuritiesSecurities entitled to the Guarantee of such Guarantor, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.7, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership Company or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) 12.1.4. Each of the Subsidiary Guarantors Guarantor hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership Company or any of the Subsidiary Guarantors, and all demands whatsoever, whatsoever and (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guaranteeit. Each of the Subsidiary Guarantors Guarantor further agrees that if at any time all or any part of any payment theretofore applied by any Person person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) 12.1.5. Each of the Subsidiary Guarantors Guarantor shall be subrogated to all rights of the Holders and the Trustee against the Partnership Company in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, ; provided, however, that such Subsidiary Guarantor, Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities entitled to the Guarantee of such Guarantor and the Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Sources: Indenture (PKST Op, L.P.)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each the Guarantor hereby unconditionally and irrevocably guarantees, as a primary obligor and not merely as a surety, for the benefit of the Subsidiary Guarantors hereby fullyHolders of the Securities, unconditionally all the obligations of the Company under the Indenture and absolutely guarantees (the "Guarantee") to the Holders and to the Trustee Securities, including the due and punctual payment of the principal of, of (and premium, if any, ) and interest on the Securities and all (including any additional interest or other amounts due and payable under this Indenture and in accordance with the Securities terms of the Securities) together with any other amount as may be owed from time to time by the PartnershipCompany under the Indenture where, when and as the same shall become due and payable, whether at maturity, upon acceleration, redemption or otherwise in accordance with the terms of the Securities. The Guarantor hereby waives presentment, demand for payment, protest and acceptance of this guarantee and all notices to any person (whether of nonpayment, dishonor, protest, extension of credit to the debtor or of other matters referred to in the Indenture, or otherwise) with respect to the Securities or the Indenture or any other related agreement or instrument. If the Company fails punctually to pay any such principal, principal (and premium, if any) or interest, the Guarantor hereby agrees to cause any such payment to be made punctually when and interest as the same shall become due and payable, whether at the stated maturity or by declaration of accelerationThe Guarantor hereby agrees that this guarantee is an absolute, call for redemption or otherwise, according to the terms of the Securities present and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right continuing guarantee of payment with all Debt and not of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees collectability and that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity legality or enforceability of the Securities, Securities or the Guarantee (including the Guarantee of any Subsidiary Guarantor) or this Indenture, the absence of any action to enforce the samesame or to collect from the Company, any waiver or consent by any Holder the holder of the Securities with respect to any the provisions hereof or thereof, and the recovery of any judgment against the Partnership or any Subsidiary Guarantor, Company or any action to enforce the same or any other circumstances which circumstance that might otherwise constitute result in a legal or equitable discharge or defense of the Subsidiary Guarantorsa guarantor. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary The Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or any of the Subsidiary Guarantors, and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee of any Security against the Partnership Company in respect of any amounts paid by such Subsidiary the Guarantor pursuant to the provisions of this Indenture, the Guarantee; provided, however, that such Subsidiary Guarantor, the Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until the principal of and interest on all of the Securities and the Guarantee issued hereunder shall have been paid in full or dischargedfull. This guarantee shall bind the Guarantor and its successors and assigns. This guarantee constitutes a direct, unconditional and unsecured obligation of the Guarantor.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contraryEach Subsidiary Guarantor hereby unconditionally, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only tojointly and severally, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (each such guarantee being referred to herein as this "Subsidiary Guarantee," with all such guarantees being referred to herein as the "GuaranteeSubsidiary Guarantees") to each Holder of Securities authenticated and delivered by the Holders Trustee and to the Trustee and its successors and assigns, the due full and punctual payment prompt performance of the Company's obligations under this Indenture and the Securities and that:
(1) the principal of, of (and premium, if any, on) and interest on the Securities will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and all other amounts due interest on the overdue principal of and payable under this Indenture and interest on the Securities by the Partnership, when and as such principal, premiumSecurities, if any, to the extent lawful, and interest shall become all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of any Securities or of any such other obligations, the same will be promptly paid in full when due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities extension or renewal, whether at Stated Maturity by acceleration or otherwise; subject however, in the case of clauses (i) and this Indenture(ii) above, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) 13.4 hereof. Failing payment when due of any amount so guaranteed pursuant to the Guarantee, or any performance so guaranteed for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such . Each Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall shall, to the extent permitted by law be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorsa guarantor. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor hereby waves, to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited extent permitted by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims claim with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the its Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in the Securities, this Indenture and in this Subsidiary Guarantee. Each of If any Holder or the Trustee is required by any court or otherwise to return to the Company, any Subsidiary Guarantors further agrees that if at any time all Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of Subsidiary Guarantor, any amount paid by the Company or any Subsidiary GuarantorsGuarantor to the Trustee or such Holder, the Guarantee shallthis Subsidiary Guarantee, to the extent that such payment is or must be rescinded or returnedtheretofore discharged, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders reinstated in full force and the Trustee against the Partnership in respect of any amounts paid by such effect. Each Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, agrees it shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation in relation to the Holders in respect of any obligations guaranteed, hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between each Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (a) the maturity of the Securities obligations guaranteed hereby may be accelerated as provided in Article V hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (b) in the Guarantee event of any acceleration of such obligations as provided in Article V hereof, such obligations (whether or not due and payable) shall have been paid in full or dischargedforthwith become due and payable by each Subsidiary Guarantor for the purpose of this Subsidiary Guarantee.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contraryEach Guarantor hereby unconditionally, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only tojointly and severally, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (such guarantee to be referred to herein as the "Guarantee") ), subject to Section 11, to each of the Holders Lenders and to the Trustee the due Agent and punctual payment of their respective successors and assigns, that: (a) the principal ofof and interest on the Loans will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration or otherwise and premiuminterest on the overdue principal, if any, and interest on any interest, to the Securities extent lawful, of the Loans and all other amounts obligations of the Company to the Lenders or the Agent hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any of the Loans or of any such other obligations, the same will be promptly paid in full when due and payable under this Indenture and the Securities by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities and this Indentureextension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise, subject, however, in the case of clauses (a) and (b) above, to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee10.5. Each of the Subsidiary Guarantors Guarantor hereby agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Loans or this IndentureAgreement, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities Lenders with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorsa Guarantor. Each of the Subsidiary Guarantors Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the this Guarantee will not be discharged except by complete performance of the obligations contained in the Loans, this Agreement and in this Guarantee. Each of If any Lender or the Subsidiary Guarantors further agrees that if at Agent is required by any time all court or otherwise to return to the Company, any Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of Guarantor, any amount paid by the Subsidiary GuarantorsCompany or any Guarantor to the Agent or such Lender, the Guarantee shallthis Guarantee, to the extent that such payment is or must theretofore discharged, shall be rescinded or returnedreinstated in full force and effect. Each Guarantor further agrees that, be deemed to have continued in existence notwithstanding such applicationas between each Guarantor, on the one hand, and the Guarantee shall continue to be effective or be reinstatedLenders and the Agent, as on the case may beother hand, as though such application had not been made.
(fx) Each the maturity of the Subsidiary Guarantors shall obligations guaranteed hereby may be subrogated to all rights accelerated as provided in Section 7 for the purposes of the Holders and the Trustee against the Partnership this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any amounts paid acceleration of such obligations as provided in Section 7, such obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary each Guarantor pursuant to for the provisions purpose of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid in full or dischargedGuarantee.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (Bio Rad Laboratories Inc)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series Series designated, pursuant to Section 2.01 2.2.23, as entitled to the benefits of the Guarantee of each Guarantor identified in such designation and that has executed a Notation of the Subsidiary GuarantorsGuarantee with respect to such Series.
(b) For value received, each of the Subsidiary Guarantors Guarantor hereby jointly and severally, fully, unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, of and interest on the each Series of Securities for which such Guarantor has executed a Notation of Guarantee with respect to such Series and all other amounts due and payable under this Indenture and the Securities of such Series by the Partnership, when and as such principal, premium, if any, principal and interest shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the such Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.13.3.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary other Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership either Issuer or any Subsidiary other Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of any of the Subsidiary Guarantors. Each of the Subsidiary Guarantors Guarantor hereby agrees that that, in the event of a default in payment of the principal of, or premium, if any, of or interest on the SecuritiesSecurities entitled to the Guarantee of such Guarantor, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.7, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership Issuers or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors Guarantor hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership either Issuer or any of the Subsidiary Guarantors, and all demands whatsoever, whatsoever and (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guaranteeit. Each of the Subsidiary Guarantors Guarantor further agrees that that, if at any time all or any part of any payment theretofore applied by any Person person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including including, without limitation, the insolvency, bankruptcy or reorganization of the Partnership either Issuer or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(fe) Each of the Subsidiary Guarantors Guarantor shall be subrogated to all rights of the Holders and the Trustee against the Partnership Issuers in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, ; provided, however, that such Subsidiary Guarantor, Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities entitled to the Guarantee of such Guarantor and the Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Sources: Indenture (Daron Coal Company, LLC)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI Subject to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value receivedThirteen, each of the Subsidiary Guarantors Guarantor hereby fully, jointly and severally unconditionally and absolutely irrevocably guarantees (the such guarantee to be referred to herein as a "Guarantee") to each Holder of a Security authenticated and delivered by the Holders Trustee and to the Trustee the due and punctual payment its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities or the obligations of the Company or any other Guarantors to the Holders or the Trustee hereunder or thereunder, that: (a) the principal ofof and interest on the Securities (and any Additional Amounts payable thereon) and any other amounts owing in respect of the Securities shall be duly and punctually paid in full when due, whether at maturity, upon prepayment pursuant to the provisions of Article Eleven hereof and the Securities relating thereto, by acceleration or otherwise, and premiuminterest on the overdue principal and (to the extent permitted by law) interest and Additional Amounts, if any, and interest on the Securities and all other obligations of the Company or the Guarantors to the Holders or the Trustee hereunder or thereunder (including amounts due the Trustee under Section 6.07 hereof) and payable under this all other Indenture Obligations shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Securities or any of such other Indenture Obligations, the Securities by the Partnership, same shall be promptly paid in full when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities and this Indentureextension or renewal, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securitieswhether at maturity, to the subordination provisions contained in Article X.
(c) by acceleration or otherwise. Failing payment when due of any amount guaranteed pursuant so guaranteed, or failing performance of any other obligation of the Company to the GuaranteeHolders, for whatever reason, each of the Subsidiary Guarantors will Guarantor shall be jointly and severally obligated to pay pay, or to perform or cause the performance of, the same immediately. An Event of Default under this Indenture or the Securities shall constitute an event of default under this Guarantee, subject, and shall entitle the Holders of Securities to accelerate the obligations of the Guarantors hereunder in the case same manner and to the same extent as the obligations of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the GuaranteeCompany. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same same, whether or not a Guarantee is affixed to any particular Security, or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorsa guarantor. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for waives the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the its Guarantee will shall not be discharged except by complete performance of the obligations contained in the Securities, this Indenture and this Guarantee. This Guarantee is a guarantee of payment and not of collection. If any Holder or the Trustee is required by any court or otherwise to return to the Company or to any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Company or such Guarantor, any amount paid by the Company or such Guarantor to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (a) subject to this Article Thirteen, the maturity of the Subsidiary obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (b) in the event of any acceleration of such obligations as provided in Article Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors further agrees that if at for the purpose of this Guarantee. This Guarantee shall remain in full force and effect and continue to be effective should any time petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of any payment theretofore applied by any Person to the Guarantee isCompany's assets, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee and shall, to the fullest extent that such payment is or must be rescinded or returnedpermitted by law, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities, whether as a "voidable preference," "fraudulent transfer" or otherwise, all as though such application payment or performance had not been made.
(f) Each . In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. The Guarantors hereby agree that the obligations of each Guarantor hereunder at any time shall be limited to the Subsidiary maximum amount as will result in the obligations of such Guarantor hereunder not constituting a fraudulent transfer or conveyance. No stockholder, officer, director, employee or incorporator, past, present or future, or any Guarantor, as such, shall have any personal liability under this Guarantee by reason of his, her or its status as such stockholder, officer, director, employee or incorporator. The Guarantors shall be subrogated have the right to all seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under this Guarantee. 138
(b) To further evidence the Guarantee set forth in Section 13.01(a), each Guarantor hereby agrees that a notation of such Guarantee, substantially in the form included in Section 2.06, shall be endorsed on each Security authenticated and delivered by the Trustee against the Partnership in respect and such Guarantee shall be executed by either manual or facsimile signature of a legal representative of each Guarantor. The validity and enforceability of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, Guarantee shall not be entitled affected by the fact that it is not affixed to enforce any particular Security. Each Guarantor hereby agrees that its Guarantee set forth in Section 13.01(a) shall remain in full force and effect notwithstanding any failure to endorse on each Security an notation of such Guarantee. If a legal representative of a Guarantor whose signature is on this Indenture or a notation of Guarantee ceases to receive be a legal representative of such Guarantor at the time the Trustee authenticates the Security on which such Guarantee is endorsed or at any payments arising out of, or based upontime thereafter, such right Guarantor's Guarantee of subrogation until all such Security shall be valid nevertheless. 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 the Securities and the Guarantee shall have been paid in full or dischargedGuarantor.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contraryEach Subsidiary Guarantor hereby unconditionally, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only tojointly and severally, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (such guarantee to be referred to herein as the "Subsidiary Guarantee") to each Holder of Securities authenticated and delivered by the Holders Trustee and to the Trustee the due and punctual payment of its successors and assigns, that:
(1) the principal of, and premium, if any, and interest on the Securities will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and all other amounts due interest on the overdue principal of and payable under this Indenture and interest on the Securities by the Partnership, when and as such principal, premiumSecurities, if any, to the extent lawful, and interest shall become all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of any Securities or of any such other obligations, that same will be promptly paid in full when due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities extension or renewal, whether at stated maturity, by acceleration or otherwise, subject, however, in the case of clauses (1) and this Indenture(2) above, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) 10.04. Failing payment when due of any amount so guaranteed pursuant to the Guarantee, or any performance so guaranteed for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same Dail▇▇ ▇▇▇ernational Inc.: Indenture -56- Execution Copy 63 immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such . Each Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorsa guarantor. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor hereby, to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited extent permitted by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any right to require a proceeding first against the Company, protest, notice, notice of the Subsidiary Guarantorsintent to accelerate, notice of acceleration, and all other notices and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in the Securities, this Indenture and in this Subsidiary Guarantee. Each of If any Holder or the Trustee is required by any court or otherwise to return to the Company, any Subsidiary Guarantors further agrees that if at any time all Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of Subsidiary Guarantor, any amount paid by the Company or any Subsidiary GuarantorsGuarantor to the Trustee or such Holder, the Guarantee shallthis Subsidiary Guarantee, to the extent that such payment is or must be rescinded or returnedtheretofore discharged, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders reinstated in full force and the Trustee against the Partnership in respect of any amounts paid by such effect. Each Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, agrees it shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between each Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article Six, such obligations (whether or not due and payable) shall forthwith become due and payable by each Subsidiary Guarantor for the purpose of this Subsidiary Guarantee. The Company agrees to cause (a) each Person (other than an Unrestricted Subsidiary and any Exempt Foreign Subsidiary) that shall become a Material Subsidiary after the date of the Issue Date, and (b) each Subsidiary that is not a Subsidiary Guarantor on the Issue Date that after the Issue Date incurs any Indebtedness with respect to any Indebtedness of the Company or any other Subsidiary, to execute and deliver a supplement to this Indenture agreeing to be bound by its terms applicable to a Subsidiary Guarantor and pursuant to which such Person will guarantee the payment of the Securities on the same terms and conditions as the Guarantee shall have been paid in full or dischargedSubsidiary Guarantees by the Subsidiary Guarantors.
Appears in 1 contract
Sources: Indenture (Dailey International Inc)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contraryEach Subsidiary Guarantor hereby unconditionally, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only tojointly and severally, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (each such guarantee being referred to herein as this "Subsidiary Guarantee," with all such guarantees being referred to herein as the "GuaranteeSubsidiary Guarantees") to each Holder of Securities authenticated and delivered by the Holders Trustee and to the Trustee and its successors and assigns, the due full and punctual payment prompt performance of the Company's obligations under this Indenture and the Securities and that:
(a) the principal of, of (and premium, if any, on) and interest on the Securities will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and all other amounts due interest on the overdue principal of and payable under this Indenture and interest on the Securities by the Partnership, when and as such principal, premiumSecurities, if any, to the extent lawful, and interest shall become all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(b) in case of any extension of time of payment or renewal of any Securities or of any such other obligations, the same will be promptly paid in full when due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities extension or renewal, whether at Stated Maturity, by acceleration or otherwise; subject, however, in the case of clauses (a) and this Indenture(b) above, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) 12.4 hereof. Failing payment when due of any amount so guaranteed pursuant to the Guarantee, or any performance so guaranteed for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such . Each Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall shall, to the extent permitted by law, be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorsa guarantor. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor hereby waives, to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited extent permitted by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the its Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in the Securities, this Indenture and in this Subsidiary Guarantee. Each of If any Holder or the Trustee is required by any court or otherwise to return to the Company, any Subsidiary Guarantors further agrees that if at any time all Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of Subsidiary Guarantor, any amount paid by the Company or any Subsidiary GuarantorsGuarantor to the Trustee or such Holder, the Guarantee shallthis Subsidiary Guarantee, to the extent that such payment is or must be rescinded or returnedtheretofore discharged, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders reinstated in full force and the Trustee against the Partnership in respect of any amounts paid by such effect. Each Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, agrees it shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between each Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Securities obligations guaranteed hereby may be accelerated as provided in Article IV hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the Guarantee event of any acceleration of such obligations as provided in Article IV hereof, such obligations (whether or not due and payable) shall have been paid in full or dischargedforthwith become due and payable by each Subsidiary Guarantor for the purpose of this Subsidiary Guarantee.
Appears in 1 contract
Sources: Indenture (Comstock Resources Inc)
Unconditional Guarantee. (a) Notwithstanding any provision The Guarantor hereby unconditionally guarantees to each Holder of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, a Debt Security authenticated and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "Guarantee") to the Holders and to delivered by the Trustee the due and punctual payment of the principal of, of and premium, if any, and any interest on such Debt Security and the Securities and all other amounts due and payable under this Indenture and punctual payment of the Securities by sinking fund payments, if any, provided for pursuant to the Partnershipterms of such Debt Security, when and as such principal, premium, if any, and interest the same shall become due and payable, whether at the stated maturity or maturity, by declaration of acceleration, call for redemption or otherwise, according to in accordance with the terms of the Securities such Debt Security and of this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the . In case of the Guarantee failure of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated Company punctually to pay any such principal, premium, interest or sinking fund payment, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same immediatelyshall become due and payable, subjectwhether at maturity, in upon acceleration, redemption or otherwise, and as if such payment were made by the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. Company. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be fullas principal and not merely as surety, unconditional and shall be absolute, irrevocable and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) such Debt Security or this Indenture, the absence of any action failure to enforce the sameprovisions of any such Debt Security or this Indenture, or any waiver waiver, modification, consent or consent indulgence granted to the Company with respect thereto by any the Holder of such Debt Security or the Securities with respect to any provisions hereof or thereofTrustee, the recovery of any judgment against the Partnership or any Subsidiary Guarantor, Company or any action to enforce the same same, or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors . The Guarantor hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership Company, any right to require a proceeding first against the Company, protest or notice with respect to any of such Debt Security or the Subsidiary Guarantors, indebtedness evidenced thereby and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee Guarantees will not be discharged except by payment in full of the principal of and premium, if any, and interest on, and any sinking fund payments required with respect to, the Debt Securities and the complete performance of all other obligations contained in the GuaranteeDebt Securities. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors The Guarantor shall be subrogated to all rights of the Holders and the Trustee Holder of any Debt Security against the Partnership Company in respect of any amounts paid to such Holder by such Subsidiary the Guarantor pursuant to the provisions of this Indenture, the Guarantees; provided, however, that such Subsidiary Guarantor, the Guarantor shall not be entitled to enforce enforce, or to receive any payments arising out of, of or based upon, such right of subrogation until the principal of and premium, if any, and interest on, and any sinking fund payments required with respect to, all Debt Securities of the Securities and the Guarantee same series shall have been paid in full or dischargedfull.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision Each Guarantor hereby unconditionally guarantees, jointly and severally, to each Holder of this Article XI to a Security authenticated by the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "Guarantee") to the Holders Trustee and to the Trustee the due and punctual payment of its successors and assigns that: (i) the principal ofof and interest on the Securities will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration or otherwise, and premiuminterest on the overdue principal, if any, and interest on any overdue interest, to the extent lawful, on the Securities and all other amounts due and payable obligations of the Company to the Holders or the Trustee hereunder or under this Indenture and the Securities by the Partnershipwill be promptly paid in full or performed, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to all in accordance with the terms of the Securities hereof and this Indenture, subject to the limitations set forth in Section 11.03 thereof; and (ii) in the case of any extension of time of payment or renewal of any Securities or of any such other obligations, the Guarantee same will be promptly paid in full when due or performed in accordance with the terms of the Subordinated Securitiesextension or renewal, subject to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guaranteeapplicable grace period, for whatever reasonwhether at stated maturity, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediatelyby acceleration or otherwise, subject, however, in the case of the Guarantee of the Subordinated Securitiesclauses (i) and (ii) above, to the subordination provisions contained limitations set forth in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the GuaranteeSection 11.04. Each of the Subsidiary Guarantors Guarantor hereby agrees that its obligations Obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorssuch Guarantor. Each of the Subsidiary Guarantors Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the obligations contained in the Securities, this Indenture and in this Guarantee. Each of If any Holder or the Subsidiary Guarantors further agrees that if at Trustee is required by any time all court or otherwise to return to the Company or any part of Guarantor or any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee isCompany or a Guarantor, any amount paid by the Company or must be, rescinded a Guarantor to the Trustee or returned for any reason whatsoever, including without limitationsuch Holder, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shallGuarantee, to the extent that theretofore discharged, shall be reinstated in full force and effect. Each Guarantor further agrees that, as between such payment is or must be rescinded or returnedGuarantor, be deemed to have continued in existence notwithstanding such applicationon the one hand, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against Trustee, on the Partnership other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six for the purpose of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any amounts paid acceleration of such obligations as provided in Article Six, such obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor pursuant to for the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all purpose of the Securities and the Guarantee shall have been paid in full or dischargedGuarantee.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contraryEach Guarantor hereby unconditionally, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only tojointly and severally, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (such guarantee to be referred to herein as the "Guarantee") to each Holder of a Note authenticated and delivered by the Holders Trustee and to the Trustee and its successors and assigns, the due Notes and punctual payment the Obligations of the principal ofCompany hereunder, thereunder and under the Pledge Agreement, and premiumthat (without limiting the generality of the foregoing): (i) the principal of and interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration or otherwise and interest on the overdue principal, if any, and interest on any interest, to the Securities extent lawful, of the Notes and all other amounts obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; (ii) in case of any extension of time of payment or renewal of any Notes or of any such other obligations, the same will be promptly paid in full when due and payable under this Indenture and the Securities by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities and this Indentureextension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise and (iii) the obligations of the Company and its Subsidiaries under the Collateral Document shall be performed in accordance with the terms thereof; subject, however, in the case of clauses (i) and (ii) above, to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee10.5. Each of the Subsidiary Guarantors Guarantor hereby agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the SecuritiesNotes, this Indenture or the Guarantee (including Collateral Document, as the Guarantee of any Subsidiary Guarantor) or this Indenturecase may be, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorsa guarantor. Each of the Subsidiary Guarantors Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the this Guarantee will not be discharged except by complete performance of the obligations contained in the Notes, this Indenture, the Collateral Document and in this Guarantee. Each of If any Noteholder or the Subsidiary Guarantors further agrees that if at Trustee is required by any time all court or otherwise to return to the Company, any Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of Guarantor, any amount paid by the Subsidiary GuarantorsCompany or any Guarantor to the Trustee or such Noteholder, the Guarantee shallthis Guarantee, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid in full or discharged.theretofore
Appears in 1 contract
Sources: First Supplemental Indenture (Telehub Communications Corp)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI XII to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors XII shall be applicable only to, and inure solely to the benefit of, the Securities of any series Series designated, pursuant to Section 2.01 2.2.23, as entitled to the benefits of the Guarantee of each Guarantor identified in such designation and that has executed a Notation of the Subsidiary GuarantorsGuarantee with respect to such Series.
(b) For value received, each of the Subsidiary Guarantors Guarantor hereby jointly and severally, fully, unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the each Series of Securities for which such Guarantor has executed a Notation of Guarantee with respect to such Series and all other amounts due and payable under this Indenture and the Securities of such Series by the PartnershipCompany, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the such Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.12.3.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary other Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership Company or any Subsidiary other Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of any of the Subsidiary Guarantors. Each of the Subsidiary Guarantors Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, of or interest on the SecuritiesSecurities entitled to the Guarantee of such Guarantor, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.7, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership Company or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors Guarantor hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership Company or any of the Subsidiary Guarantors, and all demands whatsoever, whatsoever and (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guaranteeit. Each of the Subsidiary Guarantors Guarantor further agrees that if at any time all or any part of any payment theretofore applied by any Person person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(fe) Each of the Subsidiary Guarantors Guarantor shall be subrogated to all rights of the Holders and the Trustee against the Partnership Company in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, ; provided, however, that such Subsidiary Guarantor, Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities entitled to the Guarantee of such Guarantor and the Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Sources: Indenture (Broadstone Net Lease LLC)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI Subject to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value receivedTen, each of the Subsidiary Guarantors hereby fullyGuarantor unconditionally guarantees, unconditionally on a senior subordinated basis, jointly and absolutely guarantees severally (the such guarantee to be referred to herein as a "Guarantee") ), to each Holder and the Trustee, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company or any other Subsidiary Guarantor to the Holders and to or the Trustee the due and punctual payment of hereunder or thereunder, that: (a) the principal of, and premium, if any, and interest on the Securities Notes (and all other amounts due any Additional Interest payable thereon) shall be duly and payable under this Indenture punctually paid in full when due, whether at maturity, upon redemption at the option of Holders pursuant to the provisions of the Notes relating thereto, by acceleration or otherwise, and interest on the Securities overdue principal and (to the extent permitted by the Partnership, when and as such principal, premiumlaw) interest, if any, on the Notes and interest all other obligations of the Company or the Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder (including amounts due the Trustee under Section 7.07) and all other obligations shall become be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall be promptly paid in full when due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities and this Indentureextension or renewal, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securitieswhether at maturity, to the subordination provisions contained in Article X.
(c) by acceleration or otherwise. Failing payment when due of any amount guaranteed pursuant so guaranteed, or failing performance of any other obligation of the Company to the GuaranteeHolders under this Indenture or under the Notes, for whatever reason, each Subsidiary Guarantor shall be obligated to pay, or to perform or cause the performance of, the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under this Guarantee, and shall entitle the Holders of Notes to accelerate the obligations of the Subsidiary Guarantors will be jointly and severally obligated to pay hereunder in the same immediately, subject, in manner and to the case same extent as the obligations of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the GuaranteeCompany. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities Notes with respect to any provisions hereof or thereof, any release of any other Subsidiary Guarantor, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same same, whether or not a Guarantee is affixed to any particular Note, or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the a Subsidiary GuarantorsGuarantor. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for waives the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the its Guarantee will shall not be discharged except by complete performance of the obligations contained in the Notes, this Indenture and this Guarantee. Each This Guarantee is a guarantee of payment and not of collection. If any Holder or the Trustee is required by any court or otherwise to return to the Company or to any Subsidiary Guarantors further agrees that if at any time all Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee isCompany or such Subsidiary Guarantor, any amount paid by the Company or must besuch Subsidiary Guarantor to the Trustee or such Holder, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shallthis Guarantee, to the extent that such payment is or must theretofore discharged, shall be rescinded or returnedreinstated in full force and effect. Each Subsidiary Guarantor further agrees that, be deemed to have continued in existence notwithstanding such applicationas between it, on the one hand, and the Guarantee Holders of Notes and the Trustee, on the other hand, (a) subject to this Article Ten, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (b) in the event of any acceleration of such obligations as provided in Article Six, such obligations (whether or not due and payable) shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of forthwith become due and payable by the Subsidiary Guarantors shall be subrogated to all rights of for the Holders and the Trustee against the Partnership in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions purpose of this IndentureGuarantee. No stockholder, providedofficer, howeverdirector, that such employee or incorporator, past, present or future, or any Subsidiary Guarantor, as such, shall not have any personal liability under this Guarantee by reason of his, her or its status as such stockholder, officer, director, employee or incorporator. Each Subsidiary Guarantor that makes a payment or distribution of more than its proportionate share under a Guarantee shall be entitled to enforce or to receive any payments arising out ofa contribution from each other Subsidiary Guarantor in an amount pro rata, or based uponon the net assets of each Subsidiary Guarantor, such right of subrogation until all of the Securities and the Guarantee shall have been paid determined in full or dischargedaccordance with GAAP.
Appears in 1 contract
Sources: Indenture (Sitel Corp)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series Series designated, pursuant to Section 2.01 2.2.23, as entitled to the benefits of the Guarantee of each Guarantor identified in such designation and that has executed a Notation of the Subsidiary GuarantorsGuarantee with respect to such Series.
(b) For value received, each of the Subsidiary Guarantors hereby Guarantor hereby, jointly and severally, fully, unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, of and interest on the each Series of Securities for which such Guarantor has executed a Notation of Guarantee with respect to such Series and all other amounts due and payable under this Indenture and the Securities of such Series by the PartnershipIssuers, when and as such principal, premium, if any, principal and interest shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the such Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.12.3.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary other Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership either Issuer or any Subsidiary other Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of any of the Subsidiary Guarantors. Each of the Subsidiary Guarantors Guarantor hereby agrees that that, in the event of a default in payment of the principal of, or premium, if any, of or interest on the SecuritiesSecurities entitled to the Guarantee of such Guarantor, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.7, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership Issuers or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors Guarantor hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership either Issuer or any of the Subsidiary Guarantors, and all demands whatsoever, whatsoever and (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guaranteeit. Each of the Subsidiary Guarantors Guarantor further agrees that that, if at any time all or any part of any payment theretofore applied by any Person person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including including, without limitation, the insolvency, bankruptcy or reorganization of the Partnership either Issuer or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(fe) Each of the Subsidiary Guarantors Guarantor shall be subrogated to all rights of the Holders and the Trustee against the Partnership Issuers in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, ; provided, however, that such Subsidiary Guarantor, Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities entitled to the Guarantee of such Guarantor and the Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Sources: Indenture (Rentech Nitrogen Pasadena Holdings, LLC)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI Subject to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value receivedThirteen, each of the Subsidiary Guarantors Guarantor hereby fully, jointly and severally unconditionally and absolutely irrevocably guarantees (the such guarantee to be referred to herein as a "Guarantee") to each Holder of a Security authenticated and delivered by the Holders Trustee and to the Trustee the due and punctual payment its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities or the obligations of the Company or any other Guarantors to the Holders or the Trustee hereunder or thereunder, that: (a) the principal ofof and interest on the Securities (and any Additional Amounts payable thereon) and any other amounts owing in respect of the Securities shall be duly and punctually paid in full when due, whether at maturity, upon prepayment pursuant to the provisions of Article Eleven hereof and the Securities relating thereto, by acceleration or otherwise, and premiuminterest on the overdue principal and (to the extent permitted by law) interest and Additional Amounts, if any, and interest on the Securities and all other obligations of the Company or the Guarantors to the Holders or the Trustee hereunder or thereunder (including amounts due the Trustee under Section 6.07 hereof) and payable under this all other Indenture Obligations shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Securities or any of such other Indenture Obligations, the Securities by the Partnership, same shall be promptly paid in full when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities and this Indentureextension or renewal, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securitieswhether at maturity, to the subordination provisions contained in Article X.
(c) by acceleration or otherwise. Failing payment when due of any amount guaranteed pursuant so guaranteed, or failing performance of any other obligation of the Company to the GuaranteeHolders, for whatever reason, each of the Subsidiary Guarantors will Guarantor shall be jointly and severally obligated to pay pay, or to perform or cause the performance of, the same immediately. An Event of Default under this Indenture or the Securities shall constitute an event of default under this Guarantee, subject, and shall entitle the Holders of Securities to accelerate the obligations of the Guarantors hereunder in the case same manner and to the same extent as the obligations of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the GuaranteeCompany. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same same, whether or not a Guarantee is affixed to any particular Security, or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorsa guarantor. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for waives the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the its Guarantee will shall not be discharged except by complete performance of the obligations contained in the Securities, this Indenture and this Guarantee. This Guarantee is a guarantee of payment and not of collection. If any Holder or the Trustee is required by any court or otherwise to return to the Company or to any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Company or such Guarantor, any amount paid by the Company or such Guarantor to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (a) subject to this Article Thirteen, the maturity of the Subsidiary obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (b) in the event of any acceleration of such obligations as provided in Article Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors further agrees that if at for the purpose of this Guarantee. This Guarantee shall remain in full force and effect and continue to be effective should any time petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of any payment theretofore applied by any Person to the Guarantee isCompany's assets, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee and shall, to the fullest extent that such payment is or must be rescinded or returnedpermitted by law, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities, whether as a "voidable preference," "fraudulent transfer" or otherwise, all as though such application payment or performance had not been made.
(f) Each . In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. The Guarantors hereby agree that the obligations of each Guarantor hereunder at any time shall be limited to the Subsidiary maximum amount as will result in the obligations of such Guarantor hereunder not constituting a fraudulent transfer or conveyance. No stockholder, officer, director, employee or incorporator, past, present or future, or any Guarantor, as such, shall have any personal liability under this Guarantee by reason of his, her or its status as such stockholder, officer, director, employee or incorporator. The Guarantors shall be subrogated have the right to all seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under this Guarantee.
(b) To further evidence the Guarantee set forth in Section 13.01(a), each Guarantor hereby agrees that a notation of such Guarantee, substantially in the form included in Section 2.07, shall be endorsed on each Security authenticated and delivered by the Trustee against the Partnership in respect and such Guarantee shall be executed by either manual or facsimile signature of a legal representative of each Guarantor. The validity and enforceability of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, Guarantee shall not be entitled affected by the fact that it is not affixed to enforce any particular Security. Each Guarantor hereby agrees that its Guarantee set forth in Section 13.01(a) shall remain in full force and effect notwithstanding any failure to endorse on each Security an notation of such Guarantee. If a legal representative of a Guarantor whose signature is on this Indenture or a notation of Guarantee ceases to receive be a legal representative of such Guarantor at the time the Trustee authenticates the Security on which such Guarantee is endorsed or at any payments arising out of, or based upontime thereafter, such right Guarantor's Guarantee of subrogation until all such Security shall be valid nevertheless. 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 the Securities and the Guarantee shall have been paid in full or dischargedGuarantor.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contraryEach Guarantor hereby unconditionally, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only tojointly and severally, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (such guarantee to be referred to herein as the "Guarantee") to each Holder of a Note authenticated and delivered by the Holders Trustee and to the Trustee the due and punctual payment of its successors and assigns that: (i) the principal ofof and interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration or otherwise and premiuminterest on the overdue principal, if any, and interest on any interest, to the Securities extent lawful, of the Notes and all other amounts obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or of any such other obligations, the same will be promptly paid in full when due and payable under this Indenture and the Securities by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to in accordance with the terms of the Securities and this Indentureextension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise, subject, however, in the case of clauses (i) and (ii) above, to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee11.05. Each of the Subsidiary Guarantors Guarantor hereby agrees that its obligations Obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorsa guarantor. Each of the Subsidiary Guarantors Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the this Guarantee will not be discharged except by complete performance of the obligations contained in the Notes, this Indenture and in this Guarantee. Each of If any Noteholder or the Subsidiary Guarantors further agrees that if at Trustee is required by any time all court or otherwise to return to the Company, any Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of Guarantor, any amount paid by the Subsidiary GuarantorsCompany or any Guarantor to the Trustee or such Noteholder, the Guarantee shallthis Guarantee, to the extent that theretofore discharged, shall be reinstated in full force and effect as to such payment is or must be rescinded or returnedamount only. Each Guarantor further agrees that, be deemed to have continued in existence notwithstanding such applicationas between each Guarantor, on the one hand, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against Trustee, on the Partnership other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article Six for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any amounts paid acceleration of such obligations as provided in Article Six, such Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary each Guarantor pursuant to for the provisions purpose of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid in full or dischargedGuarantee.
Appears in 1 contract
Sources: Indenture (Landmark Theatre Corp)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contraryFor valuable consideration, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only toreceipt whereof is hereby acknowledged, and inure solely to induce the benefit of, the Securities of any series designated, pursuant Banks to Section 2.01 as entitled make Advances to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value receivedBorrowers, each of the Subsidiary Guarantors Domestic Borrower hereby fully, unconditionally and absolutely guarantees (the "Guarantee") to the Holders Banks and to the Trustee the due and punctual payment of Administrative Agent that the principal of, and premium, if any, of and interest on the Securities each Advance and all other amounts payable by each other Borrower hereunder shall be promptly paid in full when due and payable under this Indenture and the Securities by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, (whether at the stated maturity or maturity, by declaration of acceleration, call for redemption acceleration or otherwise, according to ) in accordance with the terms of the Securities hereof and this Indenturethereof, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subjectand, in the case of any extension of time of payment, in whole or in part, that all such amounts shall be promptly paid when due (whether at stated maturity, by acceleration or otherwise) in accordance with the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt terms of such Subsidiary Guarantor extension. In addition, each Domestic Borrower hereby unconditionally agrees that is notupon default in the payment when due (whether at stated maturity, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material acceleration or otherwise) of any dutyof such principal, agreement interest or obligation other amounts, such Domestic Borrower shall forthwith pay the same. Without limiting the generality of the Partnership or any of the Subsidiary Guarantors set forth in this Indentureforegoing, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or any of the Subsidiary Guarantors, and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder each Domestic Borrower's liability shall extend to each holder all amounts that constitute part of the obligations of any agreementother Borrower guaranteed under this Article VII and that would be owed by any such other Borrower to any Bank or the Administrative Agent under this Agreement or the Notes but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, instrument reorganization or document evidencing similar proceeding involving such Borrower. Notwithstanding the Guarantee foregoing, the liability of each Domestic Borrower under the foregoing guarantee shall at no time exceed the maximum amount of liability which could be asserted against such Domestic Borrower hereunder without notice to it and (iiia) covenants that rendering such Domestic Borrower "insolvent" within the Guarantee will not be discharged except by complete performance meaning of Section 101(32) of the Guarantee. Each Bankruptcy Code, Section 2 of the Subsidiary Guarantors further agrees that if at any time all Uniform Fraudulent Transfer Act (the "UFTA") or any part Section 2 of any payment theretofore applied by any Person to the Guarantee isUniform Fraudulent Conveyance Act (the "UFCA"), (b) leaving such Domestic Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization Section 5 of the Partnership UFCA, or any (c) leaving such Domestic Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Subsidiary GuarantorsBankruptcy Code, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each Section 4 of the Subsidiary Guarantors shall be subrogated to all rights UFTA or Section 6 of the Holders and the Trustee against the Partnership in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid in full or dischargedUFCA.
Appears in 1 contract
Sources: Credit Agreement (Metromail Corp)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contraryEach Guarantor hereby unconditionally, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only tojointly and severally, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (such guarantee to be referred to herein as the "Guarantee") ), subject to Section 11, to each of the Holders Lenders and to the Trustee the due Agent and punctual payment of their respective successors and assigns that (i) the principal ofof and interest on the Loans will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration or otherwise and premiuminterest on the overdue principal, if any, and interest on any interest, to the Securities extent lawful, of the Loans and all other amounts obligations of the Company to the Lenders or the Agent hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any of the Loans or of any such other obligations, the same will be promptly paid in full when due and payable under this Indenture and the Securities by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities and this Indentureextension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise, subject, however, in the case of clauses (i) and (ii) above, to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee10.5. Each of the Subsidiary Guarantors Guarantor hereby agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Loans or this IndentureAgreement, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities Lenders with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the a Subsidiary GuarantorsGuarantor. Each of the Subsidiary Guarantors Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the this Guarantee will not be discharged except by complete performance of the obligations contained in the Loans, this Agreement and in this Guarantee. Each of If any Lender or the Subsidiary Guarantors further agrees that if at Agent is required by any time all court or otherwise to return to the Company, any Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of Guarantor, any amount paid by the Subsidiary GuarantorsCompany or any Guarantor to the Agent or such Lender, the Guarantee shallthis Guarantee, to the extent that such payment is or must theretofore discharged, shall be rescinded or returnedreinstated in full force and effect. Each Guarantor further agrees that, be deemed to have continued in existence notwithstanding such applicationas between each Guarantor, on the one hand, and the Guarantee shall continue to be effective or be reinstatedLenders and the Agent, as on the case may beother hand, as though such application had not been made.
(fx) Each the maturity of the Subsidiary Guarantors shall obligations guaranteed hereby may be subrogated to all rights accelerated as provided in Section 7 for the purposes of the Holders and the Trustee against the Partnership this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any amounts paid acceleration of such obligations as provided in Section 7, such obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary each Guarantor pursuant to for the provisions purpose of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid in full or dischargedGuarantee.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (T Sf Communications Corp)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI Subject to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value receivedThirteen, each of the Subsidiary Guarantors Guarantor hereby fully, jointly and severally unconditionally and absolutely irrevocably guarantees (the "such guarantee to be referred to herein as a “Guarantee"”) to each Holder of a Security authenticated and delivered by the Holders Trustee and to the Trustee the due and punctual payment its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities or the obligations of the Company or any other Guarantors to the Holders or the Trustee hereunder or thereunder, that: (a) the principal ofof and interest on the Securities (and any Additional Amounts payable thereon) and any other amounts owing in respect of the Securities shall be duly and punctually paid in full when due, whether at maturity, upon prepayment pursuant to the provisions of Article Eleven hereof and the Securities relating thereto, by acceleration or otherwise, and premiuminterest on the overdue principal and (to the extent permitted by law) interest and Additional Amounts, if any, and interest on the Securities and all other obligations of the Company or the Guarantors to the Holders or the Trustee hereunder or thereunder (including amounts due the Trustee under Section 6.07 hereof) and payable under this all other Indenture Obligations shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Securities or any of such other Indenture Obligations, the Securities by the Partnership, same shall be promptly paid in full when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities and this Indentureextension or renewal, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securitieswhether at maturity, to the subordination provisions contained in Article X.
(c) by acceleration or otherwise. Failing payment when due of any amount guaranteed pursuant so guaranteed, or failing performance of any other obligation of the Company to the GuaranteeHolders, for whatever reason, each of the Subsidiary Guarantors will Guarantor shall be jointly and severally obligated to pay pay, or to perform or cause the performance of, the same immediately. An Event of Default under this Indenture or the Securities shall constitute an event of default under this Guarantee, subject, and shall entitle the Holders of Securities to accelerate the obligations of the Guarantors hereunder in the case same manner and to the same extent as the obligations of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the GuaranteeCompany. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same same, whether or not a Guarantee is affixed to any particular Security, or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorsa guarantor. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for waives the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the its Guarantee will shall not be discharged except by complete performance of the obligations contained in the Securities, this Indenture and this Guarantee. This Guarantee is a guarantee of payment and not of collection. If any Holder or the Trustee is required by any court or otherwise to return to the Company or to any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Company or such Guarantor, any amount paid by the Company or such Guarantor to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (a) subject to this Article Thirteen, the maturity of the Subsidiary obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (b) in the event of any acceleration of such obligations as provided in Article Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors further agrees that if at for the purpose of this Guarantee. This Guarantee shall remain in full force and effect and continue to be effective should any time petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of any payment theretofore applied by any Person to the Guarantee isCompany’s assets, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee and shall, to the fullest extent that such payment is or must be rescinded or returnedpermitted by law, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such application payment or performance had not been made.
(f) Each . In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. The Guarantors hereby agree that the obligations of each Guarantor hereunder at any time shall be limited to the Subsidiary maximum amount as will result in the obligations of such Guarantor hereunder not constituting a fraudulent transfer or conveyance. No stockholder, officer, director, employee or incorporator, past, present or future, or any Guarantor, as such, shall have any personal liability under this Guarantee by reason of his, her or its status as such stockholder, officer, director, employee or incorporator. The Guarantors shall be subrogated have the right to all seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under this Guarantee.
(b) To further evidence the Guarantee set forth in Section 13.01(a), each Guarantor hereby agrees that a notation of such Guarantee, substantially in the form included in Section 2.07, shall be endorsed on each Security authenticated and delivered by the Trustee against the Partnership in respect and such Guarantee shall be executed by either manual or facsimile signature of a legal representative of each Guarantor. The validity and enforceability of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, Guarantee shall not be entitled affected by the fact that it is not affixed to enforce any particular Security. Each Guarantor hereby agrees that its Guarantee set forth in Section 13.01(a) shall remain in full force and effect notwithstanding any failure to endorse on each Security an notation of such Guarantee. If a legal representative of a Guarantor whose signature is on this Indenture or a notation of Guarantee ceases to receive be a legal representative of such Guarantor at the time the Trustee authenticates the Security on which such Guarantee is endorsed or at any payments arising out of, or based upontime thereafter, such right Guarantor’s Guarantee of subrogation until all such Security shall be valid nevertheless. 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 the Securities and the Guarantee shall have been paid in full or dischargedGuarantor.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series Series designated, pursuant to Section 2.01 2.2.23, as entitled to the benefits of the Guarantee of each Guarantor identified in such designation and that has executed a Notation of the Subsidiary GuarantorsGuarantee with respect to such Series.
(b) For value received, each of the Subsidiary Guarantors hereby Guarantor hereby, jointly and severally, fully, unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, of and interest on the each Series of Securities for which such Guarantor has executed a Notation of Guarantee with respect to such Series and all other amounts due and payable under this Indenture and the Securities of such Series by the PartnershipIssuers, when and as such principal, premium, if any, principal and interest shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the such Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.10.3.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary other Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership either Issuer or any Subsidiary other Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of any of the Subsidiary Guarantors. Each of the Subsidiary Guarantors Guarantor hereby agrees that that, in the event of a default in payment of the principal of, or premium, if any, of or interest on the SecuritiesSecurities entitled to the Guarantee of such Guarantor, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.7, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership Issuers or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors Guarantor hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership either Issuer or any of the Subsidiary Guarantors, and all demands whatsoever, whatsoever and (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guaranteeit. Each of the Subsidiary Guarantors Guarantor further agrees that that, if at any time all or any part of any payment theretofore applied by any Person person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including including, without limitation, the insolvency, bankruptcy or reorganization of the Partnership either Issuer or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(fe) Each of the Subsidiary Guarantors Guarantor shall be subrogated to all rights of the Holders and the Trustee against the Partnership Issuers in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, Indenture and the Guarantee; provided, however, that such Subsidiary Guarantor, Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities entitled to the Guarantee of such Guarantor and the Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI XIV to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors XIV shall be applicable only to, and inure solely to the benefit of, the Debt Securities of any series designated, pursuant to Section 2.01 2.03, as entitled to the benefits of the Guarantee of each of the one or more Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Debt Securities and all other amounts due and payable under this Indenture and the Debt Securities by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Debt Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.14.03.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. . The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such each Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder hereunder, shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Debt Securities, the Guarantee (including the Guarantee of any other Subsidiary Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Debt Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any other Subsidiary Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Debt Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.04, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI XIV shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (iA) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Debt Securities or this Indenture, (iiB) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iiiC) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Debt Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (ivD) the assignment or the purported assignment of any property as security for the Debt Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (vE) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Debt Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (viF) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (viiG) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Debt Securities, the Guarantee or this Indenture in any such proceeding, (viiiH) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ixI) the unenforceability of the Debt Securities, the Guarantee or this Indenture or (xJ) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (iA) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or any of the Subsidiary Guarantors, and all demands whatsoever, (iiB) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iiiC) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Debt Securities and the Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series Series designated, pursuant to Section 2.01 2.2.23, as entitled to the benefits of the Guarantee of each Guarantor identified in such designation and that has executed a Notation of the Subsidiary GuarantorsGuarantee with respect to such Series.
(b) For value received, each of the Subsidiary Guarantors hereby Guarantor hereby, jointly and severally, fully, unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, of and interest on the each Series of Securities for which such Guarantor has executed a Notation of Guarantee with respect to such Series and all other amounts due and payable under this Indenture and the Securities of such Series by the PartnershipIssuer, when and as such principal, premium, if any, principal and interest shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the such Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.10.3.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary other Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership either Issuer or any Subsidiary other Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of any of the Subsidiary Guarantors. Each of the Subsidiary Guarantors Guarantor hereby agrees that that, in the event of a default in payment of the principal of, or premium, if any, of or interest on the SecuritiesSecurities entitled to the Guarantee of such Guarantor, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.7, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership Issuer or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors Guarantor hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership either Issuer or any of the Subsidiary Guarantors, and all demands whatsoever, whatsoever and (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guaranteeit. Each of the Subsidiary Guarantors Guarantor further agrees that that, if at any time all or any part of any payment theretofore applied by any Person person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including including, without limitation, the insolvency, bankruptcy or reorganization of the Partnership either Issuer or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(fe) Each of the Subsidiary Guarantors Guarantor shall be subrogated to all rights of the Holders and the Trustee against the Partnership Issuer in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, ; provided, however, that such Subsidiary Guarantor, Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities entitled to the Guarantee of such Guarantor and the Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors Guarantor hereby fully, unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Debt Securities and all other amounts due and payable under this Indenture and the Debt Securities by the PartnershipIssuer, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Debt Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X..
(cb) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors Guarantor will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. . The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors Guarantor and will rank pari passu in right of payment with all Debt of such Subsidiary the Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors The Guarantor hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Debt Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Debt Securities with respect to any provisions hereof or thereof, the recovery of any judgment against either of the Partnership or any Subsidiary GuarantorIssuer, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each any of the Subsidiary Guarantors Guarantor. The Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Debt Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.04, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary the Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary GuarantorIssuer.
(dc) The obligations of each of the Subsidiary Guarantors Guarantor under this Article XI XIV shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (iA) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership Issuer or any of the Subsidiary Guarantors Guarantor contained in the Debt Securities or this Indenture, (iiB) any impairment, modification, release or limitation of the liability of either the Partnership, any of Issuer or the Subsidiary Guarantors Guarantor or any either of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iiiC) the assertion or exercise by the PartnershipIssuer, any of the Subsidiary Guarantors Guarantor or the Trustee of any rights or remedies under the Debt Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (ivD) the assignment or the purported assignment of any property as security for the Debt Securities, including all or any part of the rights of either the Partnership Issuer or any of the Subsidiary Guarantors Guarantor under this Indenture, (vE) the extension of the time for payment by the Partnership Issuer or any of the Subsidiary Guarantors Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Debt Securities or this Indenture or of the time for performance by the Partnership Issuer or any of the Subsidiary Guarantors Guarantor of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (viF) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership Issuer or any of the Subsidiary Guarantors Guarantor set forth in this Indenture, (viiG) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership Issuer or any of the Subsidiary Guarantors Guarantor or any either of their respective assets, or the disaffirmance of the Debt Securities, the Guarantee or this Indenture in any such proceeding, (viiiH) the release or discharge of the Partnership Issuer or any of the Subsidiary Guarantors Guarantor from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ixI) the unenforceability of the Debt Securities, the Guarantee or this Indenture or (xJ) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(ed) Each of the Subsidiary Guarantors The Guarantor hereby (iA) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership Issuer or any of the Subsidiary GuarantorsGuarantor, and all demands whatsoever, (iiB) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iiiC) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors The Guarantor further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of either the Partnership Issuer or any of the Subsidiary GuarantorsGuarantor, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(fe) Each of the Subsidiary Guarantors The Guarantor shall be subrogated to all rights of the Holders and the Trustee against the Partnership Issuer in respect of any amounts paid by such Subsidiary the Guarantor pursuant to the provisions of this Indenture, ; provided, however, that such Subsidiary the Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Debt Securities and the Guarantee shall have been paid in full or discharged.
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Sources: Indenture (MPLX Operations LLC)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors Each Guarantor hereby fully, unconditionally and absolutely guarantees (the such guarantee is referred to herein as a "GuaranteeGUARANTEE") ), jointly and severally, to the Holders each Holder of a Security and to the Trustee Trustee, the prompt payment when due and punctual payment of the principal of, and premium, if any, and interest on the Securities and all other amounts due and payable under this Indenture and the Securities (whether by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, whether acceleration or otherwise) at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to place and in the manner provided in the terms of the Securities and in this Indenture of: (i) the principal of, (premium, if any), interest, if any, and Additional Amounts, if any, on each of the Securities at the respective times provided in the terms of the Securities and in this Indenture, subject whether at maturity, by acceleration or otherwise and whether any such amounts are allowed or allowable in any bankruptcy or insolvency of the Company, (ii) interest on any overdue amounts specified in the terms of the Securities and in this Indenture, and (iii) all other amounts payable by the Company hereunder or under the Securities including without limitation, amounts payable to the Trustee or the Holders under Section 7.06 and Article Six, all in accordance with the terms hereof and the terms of the Securities, subject, however, in the case of clauses (i), (ii) and (iii) above, to the limitations set forth in Section 11.03 and (ii) in the 14.03. In case of any extension of time of payment or renewal of any Securities or of any such other payment obligations, each Guarantor hereby agrees to pay promptly such Securities in full when due in accordance with the Guarantee terms of the Subordinated Securitiesextension or renewal, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guaranteewhether at stated maturity, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) by acceleration or otherwise. This is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right guarantee of payment with all Debt and not of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guaranteecollection. Each of the Subsidiary Guarantors Guarantor hereby agrees that its obligations hereunder shall be full, unconditional and absoluteabsolute unconditional, irrespective of the any lack of validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Securities or this Indenture, the absence of any action failure to enforce the same, any waiver or consent to the Company with respect thereto by any Holder of or the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary GuarantorTrustee, or any action to enforce the same or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) . Each of the Subsidiary Guarantors Guarantor hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the this Guarantee will not be discharged except by complete performance of the obligations contained in the Securities, this Indenture and in this Guarantee. Each of If any Holder or the Subsidiary Guarantors further agrees that if at Trustee is required by any time all court or otherwise to return to the Company, any Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of Guarantor, any amount paid by the Subsidiary GuarantorsCompany or any Guarantor to the Trustee or such Holder, the Guarantee shallthis Guarantee, to the extent that such payment is or must theretofore discharged, shall be rescinded or returnedreinstated in full force and effect. Each Guarantor further agrees that, be deemed to have continued in existence notwithstanding such applicationas between each Guarantor, on the one hand, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against Trustee, on the Partnership other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article Six hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purpose of this Guarantee. Each Guarantor further agrees to pay all reasonable external attorneys' fees, costs and expenses incurred by the Trustee in connection with the collection of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce payable hereunder or to receive any payments arising out of, or based upon, such right of subrogation until all enforcement of the Securities and the Guarantee shall have been paid in full or dischargedGuarantee.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contraryEach Subsidiary Guarantor hereby unconditionally, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only tojointly and severally, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (each such guarantee being referred to herein as this "Subsidiary Guarantee," with all such guarantees being referred to herein as the "GuaranteeSubsidiary Guarantees") to each Holder of Securities authenticated and delivered by the Holders Trustee and to the Trustee and its successors and assigns, the due full and punctual payment prompt performance of the Company's obligations under this Indenture and the Securities and that:
(a) the principal of, of (and premium, if any, on) and interest on the Securities will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and all other amounts due interest on the overdue principal of and payable under this Indenture and interest on the Securities by the Partnership, when and as such principal, premiumSecurities, if any, to the extent lawful, and interest shall become all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(b) in case of any extension of time of payment or renewal of any Securities or of any such other obligations, the same will be promptly paid in full when due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities extension or renewal, whether at Stated Maturity, by acceleration or otherwise: subject, however, in the case of clauses (a) and this Indenture(b) above, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) 13.4 hereof. Failing payment when due of any amount so guaranteed pursuant to the Guarantee, or any performance so guaranteed for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such . Each Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall shall, to the extent permitted by law, be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorsa guarantor. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor hereby waives, to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited extent permitted by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the its Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in the Securities, this Indenture and in this Subsidiary Guarantee. Each of If any Holder or the Trustee is required by any court or otherwise to return to the Company, any Subsidiary Guarantors further agrees that if at any time all Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of Subsidiary Guarantor, any amount paid by the Company or any Subsidiary GuarantorsGuarantor to the Trustee or such Holder, the Guarantee shallthis Subsidiary Guarantee, to the extent that such payment is or must be rescinded or returnedtheretofore discharged, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders reinstated in full force and the Trustee against the Partnership in respect of any amounts paid by such 85 100 effect. Each Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, agrees it shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between each Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Securities obligations guaranteed hereby may be accelerated as provided in Article V hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the Guarantee event of any acceleration of such obligations as provided in Article V hereof, such obligations (whether or not due and payable) shall have been paid in full or dischargedforthwith become due and payable by each Subsidiary Guarantor for the purpose of this Subsidiary Guarantee.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 301, as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "“Guarantee"”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Securities and all other amounts due and payable under this Indenture and the Securities by the PartnershipIssuers, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.1603.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. . The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary other Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership Issuers or any Subsidiary other Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06507, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership Issuers or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (iA) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership Issuers or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (iiB) any impairment, modification, release or limitation of the liability of the PartnershipIssuers, any of the Subsidiary Guarantors or any either of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amendedbankruptcy law, or other statute or from the decision of any court, (iiiC) the assertion or exercise by the PartnershipIssuers, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (ivD) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership Issuers or any of the Subsidiary Guarantors under this Indenture, (vE) the extension of the time for payment by the Partnership Issuers or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership Issuers or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (viF) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership Issuers or any of the Subsidiary Guarantors set forth in this Indenture, (viiG) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership Issuers or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viiiH) the release or discharge of the Partnership Issuers or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ixI) the unenforceability of the Securities, the Guarantee or this Indenture or (xJ) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (iA) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership Issuers or any of the Subsidiary Guarantors, and all demands whatsoever, (iiB) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iiiC) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Issuers or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership Issuers in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid in full or discharged.
Appears in 1 contract
Unconditional Guarantee. Each Guarantor hereby unconditionally, jointly and severally, guarantees (such guarantee to be referred to herein as the “Guarantee”) to each of the Lenders and to the Agent and their respective successors and assigns, that: (a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "Guarantee") to the Holders and to the Trustee the due and punctual payment of the principal ofof and interest on the Loans will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration or otherwise and premiuminterest on the overdue principal, if any, and interest on any interest, to the Securities extent lawful, of the Loans and all other amounts obligations of the Company to the Lenders or the Agent hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any of the Loans or of any such other obligations, the same will be promptly paid in full when due and payable under this Indenture and the Securities by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities and this Indentureextension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise, subject, however, in the case of clauses (a) and (b) above, to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee9.5. Each of the Subsidiary Guarantors Guarantor hereby agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Loans or this IndentureAgreement, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities Lenders with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any action to enforce the same or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorsa Guarantor. Each of the Subsidiary Guarantors Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the this Guarantee will not be discharged except by complete performance of the obligations contained in the Loans, this Agreement and in this Guarantee. Each of If any Lender or the Subsidiary Guarantors further agrees that if at Agent is required by any time all court or otherwise to return to the Company, any Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of Guarantor, any amount paid by the Subsidiary GuarantorsCompany or any Guarantor to the Agent or such Lender, the Guarantee shallthis Guarantee, to the extent that such payment is or must theretofore discharged, shall be rescinded or returnedreinstated in full force and effect. Each Guarantor further agrees that, be deemed to have continued in existence notwithstanding such applicationas between each Guarantor, on the one hand, and the Guarantee shall continue to be effective or be reinstatedLenders and the Agent, as on the case may beother hand, as though such application had not been made.
(f1) Each the maturity of the Subsidiary Guarantors shall obligations guaranteed hereby may be subrogated to all rights accelerated as provided in Section 7 for the purposes of the Holders and the Trustee against the Partnership this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any amounts paid acceleration of such obligations as provided in Section 7, such obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary each Guarantor pursuant to for the provisions purpose of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid in full or dischargedGuarantee.
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors Each Guarantor hereby fully, unconditionally and absolutely guarantees (such guarantee to be referred to herein as a "GUARANTEE"), on a senior basis jointly and severally, to each Holder of a Note authenticated and delivered by the "Guarantee") to the Holders Trustee and to the Trustee and its successors and assigns, the due and punctual payment Notes or the obligations of the Company hereunder or thereunder, that: (i) the principal ofof and interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration or otherwise and premiuminterest on the overdue principal, if any, and interest on any interest, to the Securities extent lawful, of the Notes and all other amounts obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or of any such other obligations, the same will be promptly paid in full when due and payable under this Indenture and the Securities by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities and this Indentureextension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise, subject, however, in the case of clauses (i) and (ii) above, to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee11.3. Each of the Subsidiary Guarantors Guarantor hereby agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any and action to enforce the same or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorsa guarantor. Each of the Subsidiary Guarantors Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the this Guarantee will not be discharged except by complete performance of the obligations contained in the Notes, this Indenture and in this Guarantee. Each of If any Holder or the Subsidiary Guarantors further agrees that if at Trustee is required by any time all court or otherwise to return to the Company, any Guarantor, or any part of any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of Guarantor, any amount paid by the Subsidiary GuarantorsCompany or any Guarantor to the Trustee or such Holder, the Guarantee shallthis Guarantee, to the extent that such payment is or must theretofore discharged, shall be rescinded or returnedreinstated in full force and effect. Each Guarantor further agrees that, be deemed to have continued in existence notwithstanding such applicationas between each Guarantor, on the one hand, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against Trustee, on the Partnership other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any amounts paid acceleration of such obligations as provided in Article VI, such obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary each Guarantor pursuant to for the provisions purpose of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid in full or dischargedGuarantee.
Appears in 1 contract
Sources: Indenture (Commemorative Brands Inc)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI to the contraryEach Subsidiary Guarantor, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only tojointly and severally, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "such guarantee to be referred to herein as a “Guarantee"”) to each Holder of a Security authenticated and delivered by the Holders Trustee and to the Trustee the due and punctual payment of its successors and assigns that: (i) the principal amount of, and premium, if any, and interest on the Securities will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration or otherwise and interest on the overdue principal and interest on any overdue interest, to the extent lawful, of the Securities and all other amounts due and payable under this Indenture and Obligations of the Company to the Holders of the Securities by or the PartnershipTrustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Securities or of any such other Obligations, the same will be promptly paid in full when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to performed in accordance with the terms of the Securities and this Indentureextension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise, subject, however, in the case of clauses (i) and (ii) above, to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such 10.03. Each Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary GuarantorCompany, or any and action to enforce the same or any other circumstances circumstance which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantorsa guarantor. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or Company, any of right to require a proceeding first against the Subsidiary GuarantorsCompany, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred whatsoever and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the this Guarantee will not be discharged except by complete performance of the obligations contained in the Securities, this Indenture and in this Guarantee. Each If any Holder of the Subsidiary Guarantors further agrees that if at Securities or the Trustee is required by any time all court or otherwise to return to the Company or any part of Subsidiary Guarantor, or any payment theretofore applied by any Person custodian, trustee, liquidator or other similar official acting in relation to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership Company or any of Subsidiary Guarantor, any amount paid by the Company or any Subsidiary GuarantorsGuarantor to the Trustee or such Holder, the Guarantee shallthis Guarantee, to the extent that such payment is or must theretofore discharged, shall be rescinded or returnedreinstated in full force and effect. Each Subsidiary Guarantor further agrees that, be deemed to have continued in existence notwithstanding such applicationas between each Subsidiary Guarantor, on the one hand, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration against the Company in respect of the obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article Six, such obligations (whether or not due and payable) shall have been paid in full or dischargedforthwith become due and payable by each Subsidiary Guarantor for the purpose of this Guarantee.
Appears in 1 contract
Sources: Indenture (Independent Gasoline & Oil Co of Rochester)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI XIV to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors XIV shall be applicable only to, and inure solely to the benefit of, the Debt Securities of any series designated, pursuant to Section 2.01 2.03, as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "Guarantee") to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Debt Securities and all other amounts due and payable under this Indenture and the Debt Securities by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Debt Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.14.03.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. . The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder hereunder, shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Debt Securities, the Guarantee (including the Guarantee of any other Subsidiary Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Debt Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any other Subsidiary Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Debt Securities, whether at the Stated Maturity stated maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.04, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI XIV shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (iA) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Debt Securities or this Indenture, (iiB) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any either of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iiiC) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Debt Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (ivD) the assignment or the purported assignment of any property as security for the Debt Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (vE) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Debt Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (viF) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (viiG) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Debt Securities, the Guarantee or this Indenture in any such proceeding, (viiiH) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ixI) the unenforceability of the Debt Securities, the Guarantee or this Indenture or (xJ) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (iA) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or any of the Subsidiary Guarantors, and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid in full or discharged.,
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision The Guarantor hereby unconditionally guarantees to each Holder of this Article XI to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities a Security of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally authenticated and absolutely guarantees (the "Guarantee") to the Holders and to delivered by the Trustee or Authenticating Agent the due and punctual payment of the principal of, of and premium, if any, and interest on such Security and the Securities and all other amounts due and payable under this Indenture and punctual payment of the Securities by sinking fund payments, if any, provided for pursuant to the Partnershipterms of such Security, when and as such principal, premium, if any, and interest the same shall become due and payable, whether at the stated maturity maturity, by acceleration or by declaration of acceleration, call for redemption or otherwise, according to in accordance with the terms of the Securities such Security and of this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the . In case of the Guarantee failure of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated Company punctually to pay any such principal, premium, interest or sinking fund payment, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same immediatelyshall become due and payable, subjectwhether at maturity, in upon acceleration or redemption or otherwise, and as if such payment were made by the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. Company. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be fullas principal and not merely as surety, unconditional and absoluteshall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) such Security or this Indenture, the absence of any action failure to enforce the sameprovisions of any such Security or this Indenture, or any waiver waiver, modification, consent or consent indulgence granted to the Company with respect thereto, by any the Holder of such Security or the Securities with respect to any provisions hereof or thereofTrustee, the recovery of any judgment against the Partnership or any Subsidiary Guarantor, Company or any action to enforce the same same, or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors . The Guarantor hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership Company, any right to require a proceeding first against the Company, protest or notice with respect to any of such Security or the Subsidiary Guarantors, indebtedness evidenced thereby and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the this Guarantee will not be discharged except by payment in full of the principal of and premium, if any, and interest on, and any sinking fund payments required with respect to, the Securities and the complete performance of all other obligations contained in the GuaranteeSecurities. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors The Guarantor shall be subrogated to all rights of the Holders and the Trustee Holder of any Security against the Partnership Company in respect of any amounts paid to such Holder by such Subsidiary the Guarantor pursuant to the provisions of this Indenture, Guarantee; provided, however, that such Subsidiary Guarantor, the Guarantor shall not be entitled to enforce enforce, or to receive any payments arising out of, of or based upon, such right of subrogation until the principal of and premium, if any, and interest on, and any sinking fund payments required with respect to, all of the Securities and the Guarantee shall have been paid in full or dischargedfull.
Appears in 1 contract
Sources: Indenture (Mellon Financial Corp)
Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI XIV to the contrary, the provisions of this Article XI relating to the Subsidiary Guarantors XIV shall be applicable only to, and inure solely to the benefit of, the Debt Securities of any series designated, pursuant to Section 2.01 2.03, as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "Guarantee") to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Debt Securities and all other amounts due and payable under this Indenture and the Debt Securities by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Debt Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.14.03.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. . The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder hereunder, shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Debt Securities, the Guarantee (including the Guarantee of any other Subsidiary Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Debt Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any other Subsidiary Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Debt Securities, whether at the Stated Maturity stated maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.066.04, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI XIV shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (iA) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Debt Securities or this Indenture, (iiB) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any either of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iiiC) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Debt Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (ivD) the assignment or the purported assignment of any property as security for the Debt Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (vE) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Debt Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (viF) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (viiG) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Debt Securities, the Guarantee or this Indenture in any such proceeding, (viiiH) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ixI) the unenforceability of the Debt Securities, the Guarantee or this Indenture or (xJ) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (iA) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or any of the Subsidiary Guarantors, and all demands whatsoever, (iiB) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iiiC) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Partnership in respect of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid in full or discharged.the
Appears in 1 contract
Unconditional Guarantee. (a) Notwithstanding any provision Guarantor fully and irrevocably guarantees the payment and performance of this Article XI to the contrary, Obligations when due. Guarantor is hereby made fully responsible for the provisions acts and omissions of this Article XI relating to Star China that constitute a breach of the Subsidiary Guarantors Transaction Documents. This Guaranty shall be applicable only toa full, unconditional, irrevocable, absolute and continuing guarantee of payment and performance and not a guarantee of collection, and inure solely to Guarantor shall remain liable on the benefit of, Obligations hereunder until the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits payment in full of the Guarantee of each of the Subsidiary GuarantorsObligations.
(b) For value receivedThe Obligations of Guarantor hereunder shall not be released, each discharged, diminished or impaired by (i) the renewal, extension, modification or alteration by Star China and the Chinese Parties, with or without the knowledge or consent of Guarantor, of the Subsidiary Guarantors hereby fullyTransaction Documents or of any liability or obligation of Star China thereunder or of any document or instrument under which the Obligations arise, unconditionally and absolutely guarantees (the "Guarantee") to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Securities and all other amounts due and payable under this Indenture and the Securities by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Securities and this Indenture, subject to the limitations set forth in Section 11.03 and (ii) any forbearance or compromise granted to Star China by the Chinese Parties when dealing with Star China except to the extent of such forbearance or compromise, (iii) any change in corporate structure or ownership of Star China or the case bankruptcy, insolvency, liquidation, receivership, dissolution, winding-up or termination of Star China or the fact that at any time Star China does not exist, (iv) the inaccuracy of any of the Guarantee representations and warranties of Star China under any of the Subordinated SecuritiesTransaction Documents, (v) any neglect, delay, omission, failure or refusal of Star China to take or prosecute any action in connection with the Transaction Documents, or (vi) the full or partial release of Star China on any liability or obligation, except that Guarantor shall be released pro tanto to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to extent the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, Chinese Parties expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any Subsidiary Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities release Star China from liability with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership or any Subsidiary Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary GuarantorObligations.
(d) The obligations Guarantor waives notice of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromiseacceptance of this Guaranty, settlement, release, waiver(ii) the creation, renewal, extension, indulgence modification, alteration or modification of, existence of any liability or any change in, any obligation of Star China constituting part of the obligations Obligations, and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) any breach of or default in the assertion or exercise by the Partnership, any performance of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantorObligations.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of If Star China fails to perform Obligations requiring payment, filing of claims with a court in whole or in part, when such Obligations are due, Guarantor shall promptly pay such Obligations in cash. Guarantor shall pay such amount within ten (10) Business Days (as defined in the event JV Contract) of receipt of demand for payment from the mergerChinese Parties. The Chinese Parties may enforce Guarantor’s obligations under this Guaranty after suing Star China or joining Star China in any suit against Guarantor, insolvency or bankruptcy of the Partnership enforcing any rights and remedies against Star China or otherwise pursuing or asserting any claims or rights against Star China or any other person or entity or any of the Subsidiary Guarantors, and all demands whatsoever, (ii) acknowledges that any agreement, instrument its or document evidencing the Guarantee their property which may also be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person liable with respect to the Guarantee is, or must be, rescinded or returned matters for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment which Guarantor is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been madeliable under this Section 1.
(f) Each of Guarantor reserves the Subsidiary Guarantors shall be subrogated right to all rights of the Holders and the Trustee against the Partnership in respect assert defenses which Star China may have to payment or performance of any amounts paid by such Subsidiary Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and the Guarantee shall have been paid in full or dischargedObligation.
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Unconditional Guarantee. (a) Notwithstanding any provision of this Article XI Subject to the contrary, the provisions of this Article XI relating 11 the Guarantors, jointly and severally, hereby unconditionally guarantee to each Holder of a Note authenticated and delivered by the Subsidiary Guarantors shall be applicable only toTrustee, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01 as entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantees (the "Guarantee") to the Holders and to the Trustee Trustee, the due and punctual payment of the principal of, and premium, if any, of and interest on the Securities and all other amounts due and payable under this Indenture and the Securities by the Partnershipsuch Note, when and as such principal, premium, if any, and interest the same shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption thereof or otherwise, according to in accordance with the terms of the Securities such Note and of this Indenture, subject to the limitations set forth in Section 11.03 and (ii) in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately, subject, in the case of the Guarantee of the Subordinated Securities, to the subordination provisions contained in Article X. . The Guarantee hereunder (other than the Guarantee of Subordinated Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees agree that its their obligations hereunder shall be full, unconditional absolute and absoluteunconditional, irrespective of the validityof, regularity and shall be unaffected by, any invalidity, irregularity or enforceability of the Securities, the Guarantee (including the Guarantee unenforceability of any Subsidiary Guarantor) such Note or this Indenture, the absence of any action failure to enforce the sameprovisions of any such Note or this Indenture, any waiver waiver, modification or consent by any Holder of indulgence granted to the Securities Issuer with respect to any provisions hereof thereto, by the holder of such Note or thereofthe Trustee, the recovery of any judgment against the Partnership or any Subsidiary Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Partnership, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors under this Indenture, (v) the extension of the time for payment by the Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities, the Guarantee or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary . The Guarantors hereby (i) waives waive diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency merger or bankruptcy of the Partnership Issuer, any right to require a proceeding first against the Issuer, the benefit of discussion, protest or notice with respect to any of such Note or the Subsidiary Guarantors, Indebtedness evidenced thereby and all demands whatsoever, (ii) acknowledges and covenant that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that the this Guarantee will not be discharged as to any such Note except by complete performance payment in full of the Guaranteeprincipal of and interest thereon. Each of the Subsidiary Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary The Guarantors shall be subrogated to all rights of the Holders and the Trustee Holder of any Notes against the Partnership Issuer in respect of any amounts paid to the Holder by such Subsidiary Guarantor the Guarantors pursuant to the provisions of this IndentureGuarantee; PROVIDED, provided, howeverHOWEVER, that such Subsidiary Guarantor, the Guarantors shall not be entitled to enforce enforce, or to receive any payments arising out of, of or based upon, such right of subrogation until the principal of and interest on all of the Securities and the Guarantee Notes shall have been paid in full full. The Guarantees set forth in this Section 11.01 shall not be valid or dischargedbecome obligatory for any purpose with respect to a Note until the certificate of authentication on such Note shall have been signed by or on behalf of the Trustee.
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Sources: Indenture (Mortgage & Realty Trust)