Unconditional Guarantees. For value received, the Guarantors hereby fully, irrevocably, unconditionally and absolutely guarantee to the Owners and to the Trustee the due and punctual payment of the Company Obligations, when and as such Company Obligations shall become due and payable according to the terms of the Indenture and this Agreement. The guarantees by the Guarantors set forth in this Section 2 of Exhibit A are referred to herein as the “Guarantees.” Without limiting the generality of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part of the Company Obligations and would be owed by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such Guarantor. Each Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Company Obligations, the Guarantees or this Agreement, the absence of any action to enforce the same, any waiver or consent by any party with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantor. The Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or such Guarantor, and all demands and notices whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its Guarantee will not be discharged except by complete performance of the Guarantees. Each Guarantor further agrees that to the fullest extent permitted by applicable law, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such Guarantor, 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 Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made. The Guarantors shall be subrogated to all rights of the Owners, the Issuer and the Trustee against the Company in respect of any amounts paid by the Guarantors pursuant to the provisions of the Indenture and this Agreement; provided, however, that the Guarantors shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Company Obligations until all of the Bonds and the Guarantees thereof shall have been indefeasibly paid in full or discharged. A director, officer, employee, stockholder, partner or member, as such, of the Guarantors shall not have any liability for any obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation. No failure to exercise and no delay in exercising, on the part of the Trustee, the Issuer or the Owners, any right, power, privilege or remedy under this Section 2 of Exhibit A and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A shall limit the right of the Trustee, the Issuer or the Owners to take any action to accelerate the maturity of the Bonds pursuant to Section 9.02 of the Indenture or to pursue any rights or remedies hereunder or under applicable law.
Appears in 5 contracts
Samples: Lease Agreement (NuStar Energy L.P.), Lease Agreement (NuStar Energy L.P.), Lease Agreement (NuStar Energy L.P.)
Unconditional Guarantees. For value received, the Guarantors hereby fully, irrevocably, unconditionally and absolutely guarantee Subject to the Owners and to the Trustee the due and punctual payment of the Company Obligations, when and as such Company Obligations shall become due and payable according to the terms of the Indenture and this Agreement. The guarantees by the Guarantors any other provisions set forth in this Section 2 of Exhibit A are the Authorizing Resolution or supplemental indenture relating to a particular Series, each Guarantor hereby unconditionally, jointly and severally, guarantees (each such guarantee to be referred to herein as the “Guarantees.” Without limiting "Guarantee") to each Holder of Securities of such Series authenticated and delivered by the generality Trustee and to the Trustee and its successors and assigns, that: (i) the principal of 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 interest on the overdue principal, if any, and interest on any interest of the foregoing, the Guarantors’ liability shall extend to Securities of such Series and all amounts that constitute part other obligations of the Company Obligations and would be owed by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence Holders or the Trustee hereunder or thereunder, except obligations to pay principal and interest 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 a bankruptcyany extension of time of payment or renewal of any Securities of such Series or of any such other obligations, reorganization or similar proceeding involving the Company. Failing payment same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any amount guaranteed pursuant applicable grace period, whether at stated maturity, by acceleration or otherwise, subject, however, in the case of clauses (i) and (ii) above, to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu limitations set forth in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such GuarantorSection 9.04. Each Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Company Obligations, the Guarantees Securities of such Series or this AgreementIndenture, the absence of any action to enforce the same, any waiver or consent by any party Holder of the Securities of such Series with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantora guarantor. The Each Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or such GuarantorCompany, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and notices whatsoevercovenants that, (ii) acknowledges that any agreementsubject to Section 9.03, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its this Guarantee will not be discharged except by complete performance of the Guaranteesobligations contained in the Securities of the applicable Series, this Indenture and in this Guarantee. If any Holder or the Trustee is required by any court or otherwise to return to the Company, any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Company or any Guarantor, any amount paid by the Company or any 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 to the fullest extent permitted by applicable lawthat, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such as between each Guarantor, such Guarantee shall, to on the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such applicationone hand, and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made. The Guarantors shall be subrogated to all rights of the Owners, the Issuer Holders and the Trustee against the Company in respect of any amounts paid by the Guarantors pursuant to the provisions of the Indenture and this Agreement; provided, however, that the Guarantors shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Company Obligations until all of the Bonds and the Guarantees thereof shall have been indefeasibly paid in full or discharged. A director, officer, employee, stockholder, partner or member, as such, of the Guarantors shall not have any liability for any obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation. No failure to exercise and no delay in exercisingTrustee, on the part of the Trusteeother hand, the Issuer or the Owners, any right, power, privilege or remedy under this Section 2 of Exhibit A and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A shall limit the right of the Trustee, the Issuer or the Owners to take any action to accelerate (x) the maturity of the Bonds pursuant to Section 9.02 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 Indenture obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article Six, such obligations (whether or to pursue any rights or remedies hereunder or under applicable lawnot due and payable) shall forthwith become due and payable by each Guarantor for the purpose of this Guarantee.
Appears in 4 contracts
Samples: Indenture (Horton D R Inc /De/), Collins & Aikman Products Co, Collins & Aikman Products Co
Unconditional Guarantees. For value received(FORM OF GUARANTEE) FOR VALUE RECEIVED, the Guarantors Guarantor, hereby fully, irrevocably, unconditionally and absolutely guarantee guarantees to the Owners and to holder of the Trustee Security upon which this Guarantee is endorsed the due and punctual payment of the Company Obligationsprincipal of, sinking fund payment, if any, premium, if any, or interest on said Security, when and as such Company Obligations the same shall become due and payable payable, whether at maturity, upon redemption or otherwise, according to the terms thereof and of the Indenture and this Agreementreferred to therein. The guarantees by Guarantor agrees to determine, at least one business day prior to the Guarantors set forth in this Section 2 date upon which a payment of Exhibit A are referred principal of, sinking fund payment, if any, premium, if any, or interest on said Security is due and payable, whether the Company has available the funds to herein make such payment as the “Guarantees.” Without limiting the generality same shall become due and payable. In case of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part failure of the Company Obligations punctually to pay any such principal, sinking fund payment, if any, premium, if any, or interest, the Guarantor hereby agrees to cause any such payment to be made punctually when and would be owed as the same shall become due and payable, whether at maturity, upon redemption, or otherwise, and as if such payment were made by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such Guarantor. Each The Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be fullunconditional, irrevocable, unconditional and absolute, irrespective of the validity, regularity regularity, or enforceability of the Company Obligations, the Guarantees said Security or this Agreementsaid Indenture, the absence of any action to enforce the same, any waiver or consent by any party the Holder of said Security with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, Company or any action to enforce the same same, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantora guarantor. The Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency merger or bankruptcy of the Company Company, any right to require a proceeding first against the Company, protest or such Guarantornotice with respect to said Security or indebtedness evidenced thereby, and all demands whatsoever and notices whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its this Guarantee will not be discharged except by complete performance of the Guarantees. Each Guarantor further agrees that to the fullest extent permitted by applicable law, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such Guarantor, such Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued obligations contained in existence notwithstanding such application, said Security and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been madein this Guarantee. The Guarantors Guarantor shall be subrogated to all rights of the Owners, the Issuer and the Trustee holder of said Security against the Company in respect of any amounts paid by the Guarantors Guarantor pursuant to the provisions of the Indenture and this AgreementGuarantee; provided, however, that the Guarantors Guarantor shall not not, without the consent of the holders of all of the Securities then outstanding, be entitled to enforce or to receive any payments arising out of, of or based upon, upon such right of subrogation with respect to any until the principal of the Company Obligations until and premium, if any, and interest on all of the Bonds and the Guarantees Securities shall have been paid in full or payment thereof shall have been indefeasibly paid provided for in full accordance with said Indenture. Notwithstanding anything to the contrary contained herein, if following any payment of principal or discharged. A director, officer, employee, stockholder, partner or member, as such, interest by the Company on the Securities to the holders of the Guarantors Securities it is determined by a final decision of a court of competent jurisdiction that such payment shall not have be avoided by a trustee in bankruptcy (including any liability for any debtor-in-possession) as a preference under 11 U.S.C. Section 547 and such payment is paid by such holder to such trustee in bankruptcy, then and to the extent of such repayment, the obligations of the Guarantors under the Indenture Guarantor hereunder shall remain in full force and effect. This Guarantee shall not be valid or this Agreement or become obligatory for any claim based on, in purpose with respect to a Security until the certificate of authentication on such Security shall have been signed by the Trustee (or the Authentication Agent). This Guarantee shall be governed by reason of such obligations or their creation. No failure to exercise and no delay in exercising, on the part laws of the Trustee, the Issuer or the Owners, any right, power, privilege or remedy under this Section 2 State of Exhibit A and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A shall limit the right of the Trustee, the Issuer or the Owners to take any action to accelerate the maturity of the Bonds pursuant to Section 9.02 of the Indenture or to pursue any rights or remedies hereunder or under applicable lawNew York.
Appears in 2 contracts
Samples: Indenture (Mediaone Finance Trust Ii), Indenture (Mediaone Finance Trust Vi)
Unconditional Guarantees. For value received(FORM OF GUARANTEE) FOR VALUE RECEIVED, the Guarantors Guarantor hereby fully, irrevocably, fully and unconditionally and absolutely guarantee guarantees to the Owners and to holder of the Trustee Security upon which this Guarantee is endorsed the due and punctual payment of the Company Obligationsprincipal of, sinking fund payment, if any, premium, if any, or interest on said Security, when and as such Company Obligations the same shall become due and payable payable, whether at the maturity, upon redemption or otherwise, according to the terms thereof and of the Indenture and this Agreementreferred to therein. The guarantees by Guarantor agrees to determine, at least one Business Day prior to the Guarantors set forth in this Section 2 date upon which a payment of Exhibit A are referred principal of, sinking fund payment, if any, premium, if any, or interest on said Security is due and payable, whether the Company has available the funds to herein make such payment as the “Guarantees.” Without limiting the generality same shall become due and payable. In case of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part failure of the Company Obligations punctually to pay any such principal, sinking fund payment, if any, premium, if any, or interest, the Guarantor hereby agrees to cause any such payment to be made punctually when and would be owed as the same shall become due and payable, whether at maturity, upon redemption, or otherwise, and as if such payment were made by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such Guarantor. Each The Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be fullunconditional, irrevocable, unconditional and absolute, irrespective of the validity, regularity regularity, or enforceability of the Company Obligations, the Guarantees said Security or this Agreementsaid Indenture, the absence of any action to enforce the same, any waiver or consent by any party the holder of said Security with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, Company or any action to enforce the same same, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantora guarantor. The Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency merger or bankruptcy of the Company Company, any right to require a proceeding first against the Company, protest or such Guarantornotice with respect to said Security or indebtedness evidenced thereby, and all demands whatsoever and notices whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its this Guarantee will not be discharged except by complete performance of the Guarantees. Each Guarantor further agrees that to the fullest extent permitted by applicable law, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such Guarantor, such Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued obligations contained in existence notwithstanding such application, said Security and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been madein this Guarantee. The Guarantors Guarantor shall be subrogated to all rights of the Owners, the Issuer and the Trustee holder of said Security against the Company in respect of any amounts paid by the Guarantors Guarantor pursuant to the provisions of the Indenture and this AgreementGuarantee; provided, however, that the Guarantors Guarantor shall not not, without the consent of the holders of all of the Securities then outstanding, be entitled to enforce or to receive any payments arising out of, of or based upon, upon such right of subrogation with respect to any until the principal of the Company Obligations until and premium, if any, and interest on all of the Bonds and the Guarantees Securities shall have been paid in full or payment thereof shall have been indefeasibly paid provided for in full accordance with said Indenture. Notwithstanding anything to the contrary contained herein, if following any payment of principal or discharged. A director, officer, employee, stockholder, partner or member, as such, interest by the Company on the Securities to the holders of the Guarantors Securities it is determined by a final decision of a court of competent jurisdiction that such payment shall not have be avoided by a trustee in bankruptcy (including any liability for any debtor-in-possession) as a preference under 11 U.S.C. Section 547 and such payment is paid by such holder to such trustee in bankruptcy, then and to the extent of such repayment, the obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, Guarantor hereunder shall remain in respect of or by reason of such full force and effect. The obligations or their creation. No failure to exercise and no delay in exercising, on the part of the Trustee, the Issuer or the Owners, any right, power, privilege or remedy Guarantor under this Section 2 of Exhibit A and Guarantee are, to the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies extent provided in law or equity. Nothing contained the Indenture, subordinate and junior in this Section 2 of Exhibit A shall limit the right of payment to the Trusteeprior payment in full of all Senior Indebtedness, and this Guarantee is issued subject to the Issuer or the Owners to take any action to accelerate the maturity of the Bonds pursuant to Section 9.02 provisions of the Indenture with respect thereto. Each holder of the Security upon which this Guarantee is endorsed, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his or her behalf to pursue take such action as may be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c) appoints the Trustee his or her attorney-in-fact for any rights and all such purposes. Each holder of the Security upon which this Guarantee is endorsed, by his or remedies hereunder her acceptance thereof, hereby waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now outstanding or under applicable lawhereafter incurred, and waives reliance by each holder upon said provisions. This Guarantee shall not be valid or become obligatory for any purpose with respect to a Security until the Certificate of Authentication on such Security shall have been signed by the Trustee (or the Authentication Agent). This Guarantee shall be governed by the laws of the State of New York.
Appears in 2 contracts
Samples: Indenture (Countrywide Home Loans Inc), Countrywide Home Loans Inc
Unconditional Guarantees. For value received, the Guarantors hereby fully, irrevocably, unconditionally and absolutely guarantee Subject to the Owners and to the Trustee the due and punctual payment of the Company Obligations, when and as such Company Obligations shall become due and payable according to the terms of the Indenture and this Agreement. The guarantees by the Guarantors any other provisions set forth in this Section 2 of Exhibit A are the Authorizing Resolution or supplemental indenture relating to a particular Series, each Guarantor, jointly and severally, hereby unconditionally guarantees on a senior basis (each such guarantee to be referred to herein as the “Guarantees.” Without limiting Guarantee”) to each Holder of Securities of such Series authenticated and delivered by the generality Trustee and to the Trustee and its successors and assigns irrespective of the foregoingvalidity and enforceability of this Indenture, that: (i) the principal of 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 interest on the overdue principal, if any, and interest on any interest of the Securities of such Series and all other obligations of the Issuer to the Holders or the Trustee hereunder or thereunder, except obligations to pay principal and interest 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 Guarantors’ liability shall extend same will be promptly paid in full when due or to all amounts that constitute part be performed in accordance with the terms of the Company Obligations extension 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 would be owed by the Company under the Agreement but for the fact that they are unenforceable(ii) above, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu limitations set forth in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such GuarantorSection 9.04. Each Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Company Obligations, the Guarantees Securities of such Series or this AgreementIndenture, the absence of any action to enforce the same, any waiver or consent by any party Holder of the Securities of such Series with respect to any provisions hereof or thereof, the recovery of any judgment against the CompanyIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantora guarantor. The Each Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or such GuarantorIssuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and notices whatsoevercovenants that, (ii) acknowledges that any agreementsubject to Section 9.03, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its this Guarantee will not be discharged except by complete performance of the Guaranteesobligations contained in the Securities of the applicable Series, this Indenture and in this Guarantee. If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or such Guarantor, any amount paid by the Issuer 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 to the fullest extent permitted by applicable lawthat, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such as between each Guarantor, such Guarantee shall, to on the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such applicationone hand, and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made. The Guarantors shall be subrogated to all rights of the Owners, the Issuer Holders and the Trustee against the Company in respect of any amounts paid by the Guarantors pursuant to the provisions of the Indenture and this Agreement; provided, however, that the Guarantors shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Company Obligations until all of the Bonds and the Guarantees thereof shall have been indefeasibly paid in full or discharged. A director, officer, employee, stockholder, partner or member, as such, of the Guarantors shall not have any liability for any obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation. No failure to exercise and no delay in exercisingTrustee, on the part of the Trusteeother hand, the Issuer or the Owners, any right, power, privilege or remedy under this Section 2 of Exhibit A and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A shall limit the right of the Trustee, the Issuer or the Owners to take any action to accelerate (x) the maturity of the Bonds pursuant to Section 9.02 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 Indenture obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article Six, such obligations (whether or to pursue any rights or remedies hereunder or under applicable lawnot due and payable) shall forthwith become due and payable by each Guarantor for the purpose of this Guarantee.
Appears in 2 contracts
Samples: Toll Brothers Inc, Toll Brothers Inc
Unconditional Guarantees. For value receivedThe Guarantee relating to any series of Securities issued and authenticated hereunder shall be, unless otherwise set forth in an Officers' Certificate pursuant to Section 2.01, substantially as set forth below: "FOR VALUE RECEIVED, the Guarantors Guarantor hereby fully, irrevocably, fully and unconditionally and absolutely guarantee guarantees to the Owners and to holder of the Trustee Security upon which this Guarantee is endorsed the due and punctual payment of the Company Obligationsprincipal of, sinking fund payment, if any, premium, if any, or interest on said Security, when and as such Company Obligations the same shall become due and payable payable, whether at the maturity, upon redemption or otherwise, according to the terms thereof and of the Indenture and this Agreementreferred to therein. The guarantees by Guarantor agrees to determine, at least one Business Day prior to the Guarantors set forth in this Section 2 date upon which a payment of Exhibit A are referred principal of, sinking fund payment, if any, premium, if any, or interest on said Security is due and payable, whether the Company has available the funds to herein make such payment as the “Guarantees.” Without limiting the generality same shall become due and payable. In case of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part failure of the Company Obligations punctually to pay any such principal, sinking fund payment, if any, premium, if any, or interest, the Guarantor hereby agrees to cause any such payment to be made punctually when and would be owed as the same shall become due and payable, whether at maturity, upon redemption, or otherwise, and as if such payment were made by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such Guarantor. Each The Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be fullunconditional, irrevocable, unconditional and absolute, irrespective of the validity, regularity regularity, or enforceability of the Company Obligations, the Guarantees said Security or this Agreementsaid Indenture, the absence of any action to enforce the same, any waiver or consent by any party the holder of said Security with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, Company or any action to enforce the same same, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantora guarantor. The Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency merger or bankruptcy of the Company Company, any right to require a proceeding first against the Company, protest or such Guarantornotice with respect to said Security or indebtedness evidenced thereby, and all demands whatsoever and notices whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its this Guarantee will not be discharged except by complete performance of the Guarantees. Each Guarantor further agrees that to the fullest extent permitted by applicable law, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such Guarantor, such Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued obligations contained in existence notwithstanding such application, said Security and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been madein this Guarantee. The Guarantors Guarantor shall be subrogated to all rights of the Owners, the Issuer and the Trustee holder of said Security against the Company in respect of any amounts paid by the Guarantors Guarantor pursuant to the provisions of the Indenture and this AgreementGuarantee; provided, however, that the Guarantors Guarantor shall not not, without the consent of the holders of all of the Securities then outstanding, be entitled to enforce or to receive any payments arising out of, of or based upon, upon such right of subrogation with respect to any until the principal of the Company Obligations until and premium, if any, and interest on all of the Bonds and the Guarantees Securities shall have been paid in full or payment thereof shall have been indefeasibly paid provided for in full accordance with said Indenture. Notwithstanding anything to the contrary contained herein, if following any payment of principal or discharged. A director, officer, employee, stockholder, partner or member, as such, interest by the Company on the Securities to the holders of the Guarantors Securities it is determined by a final decision of a court of competent jurisdiction that such payment shall not have be avoided by a trustee in bankruptcy (including any liability for any debtor-in-possession) as a preference under 11 U.S.C. Section 547 and such payment is paid by such holder to such trustee in bankruptcy, then and to the extent of such repayment, the obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, Guarantor hereunder shall remain in respect of or by reason of such full force and effect. The obligations or their creation. No failure to exercise and no delay in exercising, on the part of the Trustee, the Issuer or the Owners, any right, power, privilege or remedy Guarantor under this Section 2 of Exhibit A and Guarantee are, to the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies extent provided in law or equity. Nothing contained the Indenture, subordinate and junior in this Section 2 of Exhibit A shall limit the right of payment to the Trusteeprior payment in full of all Senior Indebtedness, and this Guarantee is issued subject to the Issuer or the Owners to take any action to accelerate the maturity of the Bonds pursuant to Section 9.02 provisions of the Indenture with respect thereto. Each holder of the Security upon which this Guarantee is endorsed, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his or her behalf to pursue take such action as may be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c) appoints the Trustee his or her attorney-in-fact for any rights and all such purposes. Each holder of the Security upon which this Guarantee is endorsed, by his or remedies hereunder her acceptance thereof, hereby waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now outstanding or under applicable lawhereafter incurred, and waives reliance by each holder upon said provisions. This Guarantee shall not be valid or become obligatory for any purpose with respect to a Security until the Certificate of Authentication on such Security shall have been signed by the Trustee (or the Authentication Agent). This Guarantee shall be governed by the laws of the State of New York.
Appears in 2 contracts
Samples: Indenture (Countrywide Financial Corp), Municipal Mortgage & Equity LLC
Unconditional Guarantees. For value received(FORM OF GUARANTEE) FOR VALUE RECEIVED, the Guarantors Guarantor hereby fully, irrevocably, fully and unconditionally and absolutely guarantee guarantees to the Owners and to holder of the Trustee Security upon which this Guarantee is endorsed the due and punctual payment of the Company Obligationsprincipal of, sinking fund payment, if any, premium, if any, or interest on said Security, when and as such Company Obligations the same shall become due and payable payable, whether at maturity, upon redemption or otherwise, according to the terms thereof and of the Indenture and this Agreementreferred to therein. The guarantees by Guarantor agrees to determine, at least one Business Day prior to the Guarantors set forth in this Section 2 date upon which a payment of Exhibit A are referred principal of, sinking fund payment, if any, premium, if any, or interest on said Security is due and payable, whether the Company has available the funds to herein make such payment as the “Guarantees.” Without limiting the generality same shall become due and payable. In case of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part failure of the Company Obligations punctually to pay any such principal, sinking fund payment, if any, premium, if any, or interest, the Guarantor hereby agrees to cause any such payment to be made punctually when and would be owed as the same shall become due and payable, whether at maturity, upon redemption, or otherwise, and as if such payment were made by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such Guarantor. Each The Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be fullunconditional, irrevocable, unconditional and absolute, irrespective of the validity, regularity regularity, or enforceability of the Company Obligations, the Guarantees said Security or this Agreementsaid Indenture, the absence of any action to enforce the same, any waiver or consent by any party the holder of said Security with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, Company or any action to enforce the same same, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantora guarantor. The Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency merger or bankruptcy of the Company Company, any right to require a proceeding first against the Company, protest or such Guarantornotice with respect to said Security or indebtedness evidenced thereby, and all demands whatsoever and notices whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its this Guarantee will not be discharged except by complete performance of the Guarantees. Each Guarantor further agrees that to the fullest extent permitted by applicable law, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such Guarantor, such Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued obligations contained in existence notwithstanding such application, said Security and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been madein this Guarantee. The Guarantors Guarantor shall be subrogated to all rights of the Owners, the Issuer and the Trustee holder of said Security against the Company in respect of any amounts paid by the Guarantors Guarantor pursuant to the provisions of the Indenture and this AgreementGuarantee; provided, however, that the Guarantors Guarantor shall not not, without the consent of the holders of all of the Securities then outstanding, be entitled to enforce or to receive any payments arising out of, of or based upon, upon such right of subrogation with respect to any until the principal of the Company Obligations until and premium, if any, and interest on all of the Bonds and the Guarantees Securities shall have been paid in full or payment thereof shall have been indefeasibly paid provided for in full accordance with said Indenture. Notwithstanding anything to the contrary contained herein, if following any payment of principal or discharged. A director, officer, employee, stockholder, partner or member, as such, interest by the Company on the Securities to the holders of the Guarantors Securities it is determined by a final decision of a court of competent jurisdiction that such payment shall not have be avoided by a trustee in bankruptcy (including any liability for any debtor-in-possession) as a preference under 11 U.S.C. Section 547 and such payment is paid by such holder to such trustee in bankruptcy, then and to the extent of such repayment, the obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, Guarantor hereunder shall remain in respect of or by reason of such full force and effect. The obligations or their creation. No failure to exercise and no delay in exercising, on the part of the Trustee, the Issuer or the Owners, any right, power, privilege or remedy Guarantor under this Section 2 of Exhibit A and Guarantee are, to the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies extent provided in law or equity. Nothing contained the Indenture, subordinate and junior in this Section 2 of Exhibit A shall limit the right of payment to the Trusteeprior payment in full of all Senior Indebtedness, and this Guarantee is issued subject to the Issuer or the Owners to take any action to accelerate the maturity of the Bonds pursuant to Section 9.02 provisions of the Indenture with respect thereto. Each holder of the Security upon which this Guarantee is endorsed, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his or her behalf to pursue take such action as may be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c) appoints the Trustee his or her attorney-in-fact for any rights and all such purposes. Each holder of the Security upon which this Guarantee is endorsed, by his or remedies hereunder her acceptance thereof, hereby waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now outstanding or under applicable lawhereafter incurred, and waives reliance by each holder upon said provisions. This Guarantee shall not be valid or become obligatory for any purpose with respect to a Security until the certificate of authentication on such Security shall have been signed by the Trustee (or the Authentication Agent). This Guarantee shall be governed by the laws of the State of New York.
Appears in 2 contracts
Samples: Indenture (Countrywide Financial Corp), Indenture (Countrywide Capital Ii)
Unconditional Guarantees. For value received, the Guarantors hereby fully, irrevocably, unconditionally and absolutely guarantee Subject to the Owners and to the Trustee the due and punctual payment of the Company Obligations, when and as such Company Obligations shall become due and payable according to the terms of the Indenture and this Agreement. The guarantees by the Guarantors any other provisions set forth in this Section 2 of Exhibit A are the Authorizing Resolution or supplemental indenture relating to a particular Series, each Guarantor hereby unconditionally, jointly and severally, guarantees (each such guarantee to be referred to herein as the “Guarantees.” Without limiting "Guarantee") to each Holder of Securities of such Series authenticated and delivered by the generality Trustee and to the Trustee and its successors and assigns, that: (i) the principal of 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 interest on the overdue principal, if any, and interest on any interest of the foregoing, the Guarantors’ liability shall extend to Securities of such Series and all amounts that constitute part other obligations of the Company Obligations and would be owed by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence Holders or the Trustee hereunder or thereunder, except obligations to pay principal and interest in 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 a bankruptcyany extension of time of payment or renewal of any Securities of such Series or of any such other obligations, reorganization or similar proceeding involving the Company. Failing payment same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any amount guaranteed pursuant applicable grace period, whether at stated maturity, by acceleration or otherwise, subject, however, in the case of clauses (i) and (ii) above, to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu limitations set forth in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such GuarantorSection 9.04. Each Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Company Obligations, the Guarantees Securities of such Series or this AgreementIndenture, the absence of any action to enforce the same, any waiver or consent by any party Holder of the Securities of such Series with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantora guarantor. The Each Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or such GuarantorCompany, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and notices whatsoevercovenants that, (ii) acknowledges that any agreementsubject to Section 9.03, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its this Guarantee will not be discharged except by complete performance of the Guaranteesobligations contained in the Securities of the applicable Series, this Indenture and in this Guarantee. If any Holder or the Trustee is required by any court or otherwise to return to the Company, any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Company or any Guarantor, any amount paid by the Company or any 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 to the fullest extent permitted by applicable lawthat, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such as between each Guarantor, such Guarantee shall, to on the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such applicationone hand, and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made. The Guarantors shall be subrogated to all rights of the Owners, the Issuer Holders and the Trustee against the Company in respect of any amounts paid by the Guarantors pursuant to the provisions of the Indenture and this Agreement; provided, however, that the Guarantors shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Company Obligations until all of the Bonds and the Guarantees thereof shall have been indefeasibly paid in full or discharged. A director, officer, employee, stockholder, partner or member, as such, of the Guarantors shall not have any liability for any obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation. No failure to exercise and no delay in exercisingTrustee, on the part of the Trusteeother hand, the Issuer or the Owners, any right, power, privilege or remedy under this Section 2 of Exhibit A and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A shall limit the right of the Trustee, the Issuer or the Owners to take any action to accelerate (x) the maturity of the Bonds pursuant to Section 9.02 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 Indenture obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article Six, such obligations (whether or to pursue any rights or remedies hereunder or under applicable lawnot due and payable) shall forthwith become due and payable by each Guarantor for the purpose of this Guarantee.
Appears in 2 contracts
Samples: Indenture (Horton D R Inc /De/), HPH Homebuilders 2000 Lp
Unconditional Guarantees. For value receivedEach Subsidiary Guarantor hereby unconditionally, jointly and severally, Guarantees to each Holder of a Note authenticated by the Guarantors hereby fully, irrevocably, unconditionally and absolutely guarantee to the Owners Trustee and to the Trustee and its successors and assigns that: the due principal of, interest and punctual payment Liquidated Damages, if any, 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 and interest on any overdue interest on the Notes and all other obligations of the Company Obligations, when and as such Company Obligations shall become due and payable according to the Holders or the Trustee hereunder or under the Notes will be promptly paid in full or performed, all in accordance with the terms of hereof and thereof; subject, however, to the Indenture and this Agreement. The guarantees by the Guarantors limitations set forth in this Section 2 of Exhibit A are referred to herein as the “Guarantees.” Without limiting the generality of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part of the Company Obligations and would be owed by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise)10.3. Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such Guarantor. Each Subsidiary Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Company Obligations, the Guarantees Notes or this AgreementIndenture, the absence of any action to enforce the same, any waiver or consent by any party Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the a Subsidiary Guarantor. The Guarantor hereby agrees that in Each Subsidiary Guarantor, to the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or such GuarantorCompany, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and notices whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantees may be transferred and covenants that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its Subsidiary Guarantee will not be discharged except by complete performance of the Guaranteesobligations contained in the Notes and this Indenture. Each Guarantor further agrees that If any Holder or the Trustee is required by any court or otherwise to return to the fullest extent permitted by applicable law, if at any time all Company or any part of any payment theretofore applied by any Person to any Guarantee isSubsidiary Guarantor, or must beany custodian, rescinded trustee, liquidator or returned for other similar official acting in relation to the Company or any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such Subsidiary Guarantor, any amount paid by the Company or any Subsidiary Guarantor to the Trustee or such Guarantee shallHolder, and each Subsidiary 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 Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made. The Guarantors shall be subrogated to all rights of the Owners, the Issuer Holders and the Trustee against the Company in respect of any amounts paid by the Guarantors pursuant to the provisions of the Indenture and this Agreement; provided, however, that the Guarantors shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Company Obligations until all of the Bonds and the Guarantees thereof shall have been indefeasibly paid in full or discharged. A director, officer, employee, stockholder, partner or member, as such, of the Guarantors shall not have any liability for any obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation. No failure to exercise and no delay in exercisingTrustee, on the part of the Trusteeother hand, the Issuer or the Owners, any right, power, privilege or remedy under this Section 2 of Exhibit A and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A shall limit the right of the Trustee, the Issuer or the Owners to take any action to accelerate (x) the maturity of the Bonds pursuant to Section 9.02 obligations Guaranteed hereby may be accelerated as provided in Article 6 hereof for the purpose of the Indenture Subsidiary Guarantee, notwithstanding any stay, injunction or to pursue other prohibition preventing such acceleration in respect of the obligations Guaranteed hereby, and (y) in the event of any rights acceleration of such obligations as provided in Article 6, such obligations (whether or remedies hereunder or under applicable lawnot due and payable) shall become due and payable by each Subsidiary Guarantor for the purpose of the Subsidiary Guarantee.
Appears in 1 contract
Samples: Clearview Cinema Group Inc
Unconditional Guarantees. For value receivedEach Guarantor hereby unconditionally, jointly and severally, guarantees to each Holder of a Note authenticated by the Guarantors hereby fully, irrevocably, unconditionally and absolutely guarantee to the Owners Trustee and to the Trustee and its successors and assigns that: the due principal of, premium, if any, interest and punctual payment Liquidated Damages, if any, 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 and interest on any overdue interest on the Notes and all other obligations of the Company Obligations, when and as such Company Obligations shall become due and payable according to the Holders or the Trustee hereunder or under the Notes will be promptly paid in full or performed, all in accordance with the terms of hereof and thereof; subject, however, to the Indenture and this Agreement. The guarantees by the Guarantors limitations set forth in this Section 2 of Exhibit A are referred to herein as the “Guarantees.” Without limiting the generality of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part of the Company Obligations and would be owed by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such Guarantor11.3. Each Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Company Obligations, the Guarantees Notes or this AgreementIndenture, the absence of any action to enforce the same, any waiver or consent by any party Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the a Guarantor. The Each Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or such GuarantorCompany, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and notices whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantees may be transferred and covenants that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Subsidiary Guarantees without notice to them and (iii) covenants that its Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Company or any Guarantor, any amount paid by the Company or any Guarantor to the Trustee or such Holder, the Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor further agrees that to the fullest extent permitted by applicable lawthat, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such as between each Guarantor, such Guarantee shall, to on the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such applicationone hand, and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made. The Guarantors shall be subrogated to all rights of the Owners, the Issuer Holders and the Trustee against the Company in respect of any amounts paid by the Guarantors pursuant to the provisions of the Indenture and this Agreement; provided, however, that the Guarantors shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Company Obligations until all of the Bonds and the Guarantees thereof shall have been indefeasibly paid in full or discharged. A director, officer, employee, stockholder, partner or member, as such, of the Guarantors shall not have any liability for any obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation. No failure to exercise and no delay in exercisingTrustee, on the part of the Trusteeother hand, the Issuer or the Owners, any right, power, privilege or remedy under this Section 2 of Exhibit A and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A shall limit the right of the Trustee, the Issuer or the Owners to take any action to accelerate (x) the maturity of the Bonds pursuant to Section 9.02 obligations guaranteed hereby may be accelerated as provided in Article VI for the purpose of the Indenture Subsidiary Guarantees, notwithstanding any stay, injunction or to pursue other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any rights acceleration of such obligations as provided in Article VI, such obligations (whether or remedies hereunder or under applicable lawnot due and payable) shall become due and payable by each Guarantor for the purpose of the Subsidiary Guarantees.
Appears in 1 contract
Samples: Salton Inc
Unconditional Guarantees. For value received, the Guarantors hereby fully, irrevocably, unconditionally and absolutely guarantee Subject to the Owners and to the Trustee the due and punctual payment of the Company Obligations, when and as such Company Obligations shall become due and payable according to the terms of the Indenture and this Agreement. The guarantees by the Guarantors any other provisions set forth in this Section 2 of Exhibit A are the Authorizing Resolution or supplemental indenture relating to a particular Series, each Guarantor hereby unconditionally, jointly and severally, guarantees (each such guarantee to be referred to herein as the “Guarantees.” Without limiting "Guarantee") to each Holder of Securities of such Series authenticated and delivered by the generality Trustee and to the Trustee and its successors and assigns, that: (i) the principal of 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 interest on the overdue principal, if any, and interest on any interest of the foregoing, the Guarantors’ liability shall extend to Securities of such Series and all amounts that constitute part other obligations of the Company Obligations and would be owed by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence Holders or the Trustee hereunder or thereunder, except obligations to pay principal and interest 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 a bankruptcyany extension of time of payment or renewal of any Securities of such Series or of any such other obligations, reorganization or similar proceeding involving the Company. Failing payment same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any amount guaranteed pursuant applicable grace period, whether at stated maturity, by acceleration or otherwise, subject, however, in the case of clauses (i) and (ii) above, to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu limitations set forth in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such GuarantorSection 9.04. Each Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Company Obligations, the Guarantees Securities of such Series or this AgreementIndenture, the absence of any action to enforce the same, any waiver or consent by any party Holder of the Securities of such Series with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantora guarantor. The Each Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or such GuarantorCompany, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and notices whatsoevercovenants that, subject to Section 9.03 (ii) acknowledges that any agreementin the case of Guarantors), instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its this Guarantee will not be discharged except by complete performance of the Guaranteesobligations contained in the Securities of the applicable Series, this Indenture and in this Guarantee. If any Holder or the Trustee is required by any court or otherwise to return to the Company, any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Company or any Guarantor, any amount paid by the Company or any 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 to the fullest extent permitted by applicable lawthat, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such as between each Guarantor, such Guarantee shall, to on the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such applicationone hand, and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made. The Guarantors shall be subrogated to all rights of the Owners, the Issuer Holders and the Trustee against the Company in respect of any amounts paid by the Guarantors pursuant to the provisions of the Indenture and this Agreement; provided, however, that the Guarantors shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Company Obligations until all of the Bonds and the Guarantees thereof shall have been indefeasibly paid in full or discharged. A director, officer, employee, stockholder, partner or member, as such, of the Guarantors shall not have any liability for any obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation. No failure to exercise and no delay in exercisingTrustee, on the part of the Trusteeother hand, the Issuer or the Owners, any right, power, privilege or remedy under this Section 2 of Exhibit A and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A shall limit the right of the Trustee, the Issuer or the Owners to take any action to accelerate (x) the maturity of the Bonds pursuant to Section 9.02 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 Indenture obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article Six, such obligations (whether or to pursue any rights or remedies hereunder or under applicable lawnot due and payable) shall forthwith become due and payable by each Guarantor for the purpose of this Guarantee.
Appears in 1 contract
Samples: Collins & Aikman Products Co
Unconditional Guarantees. For value received, the Guarantors each Guarantor hereby fully, irrevocably, unconditionally and absolutely guarantee guarantees to the Owners Holders of Securities of each series to which this Article Fourteen has been made applicable as provided in Section 3.1(22) and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on such Securities, and all other amounts due and payable under this Indenture and such Securities by the Company to the Trustee or such Holders (including, without limitation, all costs and expenses (including reasonable legal fees and disbursements) incurred by the Trustee or such Holders in connection with the enforcement of this Indenture and the Guarantees) (collectively, the “Indenture Obligations”), when and as such Company Obligations principal, premium, if any, interest, if any, and other amounts shall become due and payable payable, whether at the Stated Maturity, upon redemption or by declaration of acceleration or otherwise, according to the terms of the Indenture such Securities and this AgreementIndenture. The guarantees by the Guarantors set forth in this Section 2 of Exhibit A Article Fourteen are referred to herein as the “Guarantees.” ". Without limiting the generality of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part of the Company Indenture Obligations and would be owed by the Company to the Trustee or such Holders under the Agreement this Indenture and such Securities but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each the applicable Guarantor and will rank pari passu in right of payment with all unsecured indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such Guarantor. Each Guarantor hereby agrees that that, to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Company Obligationssuch Securities, the Guarantees or this AgreementIndenture, the absence of any action to enforce the same, any waiver or consent by any party Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the such Guarantor. The Such Guarantor hereby agrees that in the event of a default in payment of the Company Obligations principal of, or premium, if any, or interest on such Securities, or any other amounts payable under this AgreementIndenture and such Securities by the Company to the Trustee or the Holders thereof, whether at the maturityStated Maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners such Holders or, subject to Section 9.04 of the Indenture5.7 hereof, by the Ownerssuch Holders, on the terms and conditions set forth in the this Indenture, directly against the Guarantors such Guarantor to enforce the Guarantees its Guarantee without first proceeding against the CompanyCompany or any other Guarantor. To the fullest extent permitted by applicable law, the obligations of each Guarantor the Guarantors under this Section 2 of Exhibit A Article Fourteen shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such any Guarantor contained in the Indenture any of such Securities or this AgreementIndenture, (ii) any impairment, modification, release or limitation of the liability of the Company, such any Guarantor 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 Company, such Guarantor, the Trustee or the Issuer any such Holder of any rights or remedies under the Indenture any of such Securities or this Agreement 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 any of the Bondssuch Securities, including all or any part of the rights of the Company or such any Guarantor under the Indenture or this AgreementIndenture, (v) the extension of the time for payment by the Company or such any Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture such Securities or this Agreement Indenture or of the time for performance by the Company or such any Guarantor 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 Company or such any Guarantor set forth in the Indenture or this AgreementIndenture, (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 readjustment, rehabilitation or relief of, or other similar proceeding affecting, the Company or any of the Guarantors Guarantor or any of their respective assets, or the disaffirmance of any of the Bondssuch Securities, the Guarantees or the this Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such any Guarantor 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 any of the Bondssuch Securities, the Guarantees, the Indenture Guarantees or this AgreementIndenture, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such any Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such any Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency amalgamation, insolvency, winding up or bankruptcy of the Company or such any Guarantor, and all demands and notices whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its Guarantee will not be discharged except by complete performance of the Guarantees. Each Guarantor further agrees that to To the fullest extent permitted by applicable law, each Guarantor further agrees that if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such any Guarantor, 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 Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made. The Guarantors shall be subrogated to all rights of the Owners, the Issuer Holders and the Trustee against the Company in respect of any amounts paid by the Guarantors pursuant to the provisions of the Indenture and this AgreementIndenture; provided, however, that the Guarantors shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Company Obligations such Securities until all of the Bonds such Securities and the Guarantees thereof shall have been indefeasibly paid in full or discharged. A director, officer, employee, stockholder, partner employee or membershareholder, as such, of the Guarantors a Guarantor shall not have any liability for any obligations of the Guarantors such Guarantor under the this Indenture or this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation. No To the fullest extent permitted by applicable law, no failure to exercise and no delay in exercising, on the part of the Trustee, the Issuer Trustee or the OwnersHolders, any right, power, privilege or remedy under this Section 2 of Exhibit A Article Fourteen and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A Article Fourteen shall limit the right of the Trustee, the Issuer Trustee or the Owners Holders to take any action to accelerate the maturity of the Bonds such Securities pursuant to Section 9.02 of the Indenture Article Five or to pursue any rights or remedies hereunder or under applicable law.
Appears in 1 contract
Samples: Second Supplemental Indenture (Weatherford International LTD)
Unconditional Guarantees. For value receivedEach of Fedders Corporation and the Subsidiary Guarantors hereby, jointly and severally, irrevocably and unconditionally guarantees to each Holder of a Security authenticated by the Guarantors hereby fully, irrevocably, unconditionally and absolutely guarantee to the Owners Trustee and to the Trustee and its successors and assigns that: the due principal of and punctual payment premium, if any, interest or Additional Interest, if any, on the Securities will be promptly paid in full when due, subject to any applicable grace period, whether on the Final Maturity Date, by acceleration, call for redemption, upon a Change of Control Offer, upon an Asset Sale Offer or otherwise, and interest on the overdue principal and interest on any overdue interest on the Securities and expenses, indemnification or otherwise, and all other obligations of the Company (all such obligations guaranteed by Fedders Corporation and the Subsidiary Guarantors being called herein the "Guaranteed Obligations"), when and as such Company Obligations shall become due and payable according to the Holders or the Trustee hereunder or under the Securities will be promptly paid in full or performed, all in accordance with the terms of hereof and thereof; subject, however, to the Indenture and this Agreement. The guarantees by the Guarantors limitations set forth in this Section 2 of Exhibit A are referred to herein as the “Guarantees.” Without limiting the generality of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part of the Company Obligations and would be owed by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such Guarantor10.03. Each Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absolutecontinuing, irrespective of the validity, regularity or enforceability of the Company Obligations, the Guarantees Securities or this AgreementIndenture, the absence of any action to enforce the same, any waiver or consent by any party Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantor. The such Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, released or limited by any occurrence or condition whatsoever, including, without limitation(a) remain in full force and effect until payment in full of all the Guaranteed Obligations, (ib) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Company or be binding upon such Guarantor contained in the Indenture or this Agreementand its successors, transferees and assigns and (iic) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement or their delay in or failure inure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 affectingand be enforceable by the Trustee, the Company or any Holders of the Guarantors or any of Securities and their respective assetssuccessors, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantortransferees and assigns. To the fullest extent permitted by applicable law, each Each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or such GuarantorCompany, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and notices whatsoever, (ii) acknowledges covenants that any agreement, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its Guarantee will not be discharged except by complete performance of the Guaranteed Obligations, and these Guarantees. If any Holder or the Trustee is required by any court or otherwise to return to the Company, any Guarantor, or any Custodian, trustee, liquidator or other similar official acting in relation to the Company or any Guarantor, any amount paid by the Company or such Guarantor to the Trustee or such Holder, the Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor further agrees that to that, as between it, on the fullest extent permitted by applicable law, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such Guarantor, 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 applicationone hand, and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made. The Guarantors shall be subrogated to all rights of the Owners, the Issuer Holders and the Trustee against the Company in respect of any amounts paid by the Guarantors pursuant to the provisions of the Indenture and this Agreement; provided, however, that the Guarantors shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Company Obligations until all of the Bonds and the Guarantees thereof shall have been indefeasibly paid in full or discharged. A director, officer, employee, stockholder, partner or member, as such, of the Guarantors shall not have any liability for any obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation. No failure to exercise and no delay in exercisingTrustee, on the part of the Trusteeother hand, the Issuer or the Owners, any right, power, privilege or remedy under this Section 2 of Exhibit A and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A shall limit the right of the Trustee, the Issuer or the Owners to take any action to accelerate (x) the maturity of the Bonds pursuant to Section 9.02 Guaranteed Obligations hereby may be accelerated as provided in Article Six for the purpose of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Indenture Guaranteed Obligations, and (y) in the event of any acceleration of the Guaranteed obligations as provided in Article Six, such Guaranteed Obligations (whether or to pursue any rights or remedies hereunder or under applicable lawnot due and payable) shall forthwith become due and payable by such Guarantor for the purpose of these Guarantees.
Appears in 1 contract
Samples: Fedders Corp /De
Unconditional Guarantees. For value receivedEach Guarantor hereby unconditionally, the Guarantors hereby fullyjointly and severally, irrevocably, unconditionally and absolutely irrevocably guarantees (each such guarantee to be referred to herein as a Guarantee) to each Holder and its successors and assigns, that: (i) the Owners principal of, interest on and the Conversion Obligation (but only to the Trustee extent payable in cash or property other than Capital Stock of the due Company), if any, with respect to the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, upon conversion or repurchase, by acceleration or otherwise and punctual payment interest on the overdue principal, if any, and interest on any interest of the Notes and all other obligations of the Company Obligationsto 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 and as such Company Obligations shall become due and payable according to or performed in accordance with the terms of the Indenture and this Agreement. The guarantees extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise, subject, however, to the Guarantors limitations set forth in this Section 2 of Exhibit A are referred to herein as the “Guarantees.” Without limiting the generality of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part of the Company Obligations and would be owed by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such Guarantor7.04. Each Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Company Obligations, Notes or the Guarantees or this AgreementIndenture, the absence of any action to enforce the same, any waiver or consent by any party Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantora guarantor. The Each Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or such GuarantorCompany, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and notices whatsoevercovenants that, (ii) acknowledges that any agreementsubject to Section 7.03, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its this Guarantee will not be discharged except by complete performance of the Guaranteesobligations of the Company contained in the Notes and the Indenture with respect to the Notes. If any Holder or the Trustee is required by any court or otherwise to return to the Company, any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Company or any Guarantor, any amount paid by the Company or any 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 to the fullest extent permitted by applicable lawthat, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such as between each Guarantor, such Guarantee shall, to on the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such applicationone hand, and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made. The Guarantors shall be subrogated to all rights of the Owners, the Issuer Holders and the Trustee against the Company in respect of any amounts paid by the Guarantors pursuant to the provisions of the Indenture and this Agreement; provided, however, that the Guarantors shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Company Obligations until all of the Bonds and the Guarantees thereof shall have been indefeasibly paid in full or discharged. A director, officer, employee, stockholder, partner or member, as such, of the Guarantors shall not have any liability for any obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation. No failure to exercise and no delay in exercisingTrustee, on the part of the Trusteeother hand, the Issuer or the Owners, any right, power, privilege or remedy under this Section 2 of Exhibit A and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A shall limit the right of the Trustee, the Issuer or the Owners to take any action to accelerate (x) the maturity of the Bonds pursuant to Section 9.02 obligations guaranteed hereby may be accelerated as provided in the Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Indenture obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in the Indenture, such obligations (whether or to pursue any rights or remedies hereunder or under applicable lawnot due and payable) shall forthwith become due and payable by each Guarantor for the purpose of this Guarantee.
Appears in 1 contract
Samples: Standard Pacific Corp /De/
Unconditional Guarantees. For value receivedEach Guarantor hereby unconditionally, the Guarantors hereby fullyjointly and severally, irrevocably, unconditionally and absolutely irrevocably guarantees (each such guarantee to be referred to herein as a Guarantee) to each Holder of the Owners Notes and its successors and assigns, that: (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 Trustee overdue principal, if any, and interest on any interest of the due Notes and punctual payment all other obligations of the Company Obligationsto 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 and as such Company Obligations shall become due and payable according to or performed in accordance with the terms of the Indenture and this Agreement. The guarantees extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise, subject, however, to the Guarantors limitations set forth in this Section 2 of Exhibit A are referred to herein as the “Guarantees.” Without limiting the generality of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part of the Company Obligations and would be owed by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such Guarantor2.04. Each Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Company Obligations, Notes or the Guarantees or this AgreementIndenture, the absence of any action to enforce the same, any waiver or consent by any party Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantora guarantor. The Each Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or such GuarantorCompany, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and notices whatsoevercovenants that, (ii) acknowledges that any agreementsubject to Section 2.03, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its this Guarantee will not be discharged except by complete performance of the Guaranteesobligations of the Company contained in the respective Notes and the Indenture with respect to the respective Series of Notes. If any Holder or the Trustee is required by any court or otherwise to return to the Company, any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Company or any Guarantor, any amount paid by the Company or any 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 to the fullest extent permitted by applicable lawthat, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such as between each Guarantor, such Guarantee shall, to on the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such applicationone hand, and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made. The Guarantors shall be subrogated to all rights of the Owners, the Issuer Holders and the Trustee against the Company in respect of any amounts paid by the Guarantors pursuant to the provisions of the Indenture and this Agreement; provided, however, that the Guarantors shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Company Obligations until all of the Bonds and the Guarantees thereof shall have been indefeasibly paid in full or discharged. A director, officer, employee, stockholder, partner or member, as such, of the Guarantors shall not have any liability for any obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation. No failure to exercise and no delay in exercisingTrustee, on the part of the Trusteeother hand, the Issuer or the Owners, any right, power, privilege or remedy under this Section 2 of Exhibit A and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A shall limit the right of the Trustee, the Issuer or the Owners to take any action to accelerate (x) the maturity of the Bonds pursuant to Section 9.02 obligations guaranteed hereby may be accelerated as provided in the Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Indenture obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in the Indenture, such obligations (whether or to pursue any rights or remedies hereunder or under applicable lawnot due and payable) shall forthwith become due and payable by each Guarantor for the purpose of this Guarantee.
Appears in 1 contract
Samples: Eleventh Supplemental Indenture (Standard Pacific Corp /De/)
Unconditional Guarantees. For value receivedEach Guarantor hereby unconditionally, jointly and severally, guarantees to each Holder of a Note authenticated by the Guarantors hereby fully, irrevocably, unconditionally and absolutely guarantee to the Owners Trustee and to the Trustee and its successors and assigns that: the due principal of, premium, if any, interest and punctual payment Liquidated Damages, if any, 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 and interest on any overdue interest on the Notes and all other obligations of the Company Obligations, when and as such Company Obligations shall become due and payable according Issuer to the Holders or the Trustee hereunder or under the Notes will be promptly paid in full or performed, all in accordance with the terms of hereof and thereof; subject, however, to the Indenture and this Agreement. The guarantees by the Guarantors limitations set forth in this Section 2 of Exhibit A are referred to herein as the “Guarantees.” 11.3. Without limiting the generality of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part of the Company Obligations and would be owed by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu in right of payment with all indebtedness of such Guarantor that is notCott hereunder, by its terms, expressly subordinated in right of payment to Cott also unconditionally guarantees the Guarantee of such Guarantoreach other Guarantor hereunder. Each Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Company Obligations, the Guarantees Notes or this AgreementIndenture, the absence of any action to enforce the same, any waiver or consent by any party Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the CompanyIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the a Guarantor. The Each Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or such GuarantorIssuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and notices whatsoever, (ii) acknowledges covenants that any agreement, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or any Guarantor, any amount paid by the Issuer or any Guarantor to the Trustee or such Holder, the Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor further agrees that to the fullest extent permitted by applicable lawthat, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such as between each Guarantor, such Guarantee shall, to on the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such applicationone hand, and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made. The Guarantors shall be subrogated to all rights of the Owners, the Issuer Holders and the Trustee against the Company in respect of any amounts paid by the Guarantors pursuant to the provisions of the Indenture and this Agreement; provided, however, that the Guarantors shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Company Obligations until all of the Bonds and the Guarantees thereof shall have been indefeasibly paid in full or discharged. A director, officer, employee, stockholder, partner or member, as such, of the Guarantors shall not have any liability for any obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation. No failure to exercise and no delay in exercisingTrustee, on the part of the Trusteeother hand, the Issuer or the Owners, any right, power, privilege or remedy under this Section 2 of Exhibit A and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A shall limit the right of the Trustee, the Issuer or the Owners to take any action to accelerate (x) the maturity of the Bonds pursuant to Section 9.02 obligations guaranteed hereby may be accelerated as provided in Article VI for the purpose of the Indenture Guarantees, notwithstanding any stay, injunction or to pursue other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any rights acceleration of such obligations as provided in Article VI, such obligations (whether or remedies hereunder or under applicable lawnot due and payable) shall become due and payable by each Guarantor for the purpose of the Guarantees.
Appears in 1 contract
Samples: Cott Corp /Cn/
Unconditional Guarantees. For value receivedEach Guarantor hereby unconditionally, the Guarantors hereby fullyjointly and severally, irrevocably, unconditionally and absolutely irrevocably guarantees (each such guarantee to be referred to herein as a Guarantee) to each Holder of the Owners Notes and its successors and assigns, that: (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 Trustee overdue principal, if any, and interest on any interest of the due Notes and punctual payment all other obligations of the Company Obligationsto 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 and as such Company Obligations shall become due and payable according to or performed in accordance with the terms of the Indenture and this Agreement. The guarantees extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise, subject, however, to the Guarantors limitations set forth in this Section 2 of Exhibit A are referred to herein as the “Guarantees.” Without limiting the generality of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part of the Company Obligations and would be owed by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such Guarantor2.04. Each Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Company Obligations, Notes or the Guarantees or this AgreementIndenture, the absence of any action to enforce the same, any waiver or consent by any party Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantora guarantor. The Each Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or such GuarantorCompany, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and notices whatsoevercovenants that, (ii) acknowledges that any agreementsubject to Section 2.03, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its this Guarantee will not be discharged except by complete performance of the Guaranteesobligations of the Company contained in the Notes and the Indenture with respect to the Notes. If any Holder or the Trustee is required by any court or otherwise to return to the Company, any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Company or any Guarantor, any amount paid by the Company or any 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 to the fullest extent permitted by applicable lawthat, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such as between each Guarantor, such Guarantee shall, to on the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such applicationone hand, and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made. The Guarantors shall be subrogated to all rights of the Owners, the Issuer Holders and the Trustee against the Company in respect of any amounts paid by the Guarantors pursuant to the provisions of the Indenture and this Agreement; provided, however, that the Guarantors shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Company Obligations until all of the Bonds and the Guarantees thereof shall have been indefeasibly paid in full or discharged. A director, officer, employee, stockholder, partner or member, as such, of the Guarantors shall not have any liability for any obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation. No failure to exercise and no delay in exercisingTrustee, on the part of the Trusteeother hand, the Issuer or the Owners, any right, power, privilege or remedy under this Section 2 of Exhibit A and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A shall limit the right of the Trustee, the Issuer or the Owners to take any action to accelerate (x) the maturity of the Bonds pursuant to Section 9.02 obligations guaranteed hereby may be accelerated as provided in the Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Indenture obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in the Indenture, such obligations (whether or to pursue any rights or remedies hereunder or under applicable lawnot due and payable) shall forthwith become due and payable by each Guarantor for the purpose of this Guarantee.
Appears in 1 contract
Samples: Second Supplemental Indenture (Standard Pacific Corp /De/)
Unconditional Guarantees. For value received, the Guarantors each Guarantor hereby fully, irrevocably, unconditionally and absolutely guarantee guarantees to the Owners Holders of Securities of each series to which this Article Fourteen has been made applicable as provided in Section 3.1(22) and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on such Securities, and all other amounts due and payable under this Indenture and such Securities by the Company to the Trustee or such Holders (including, without limitation, all costs and expenses (including reasonable legal fees and disbursements) incurred by the Trustee or such Holders in connection with the enforcement of this Indenture and the Guarantees) (collectively, the “Indenture Obligations”), when and as such Company Obligations principal, premium, if any, interest, if any, and other amounts shall become due and payable payable, whether at the Stated Maturity, upon redemption or by declaration of acceleration or otherwise, according to the terms of the Indenture such Securities and this AgreementIndenture. The guarantees by the Guarantors set forth in this Section 2 of Exhibit A Article Fourteen are referred to herein as the “Guarantees.” ”. Without limiting the generality of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part of the Company Indenture Obligations and would be owed by the Company to the Trustee or such Holders under the Agreement this Indenture and such Securities but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each the applicable Guarantor and will rank pari passu in right of payment with all unsecured indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such Guarantor. Each Guarantor hereby agrees that that, to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Company Obligationssuch Securities, the Guarantees or this AgreementIndenture, the absence of any action to enforce the same, any waiver or consent by any party Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the such Guarantor. The Such Guarantor hereby agrees that in the event of a default in payment of the Company Obligations principal of, or premium, if any, or interest on such Securities, or any other amounts payable under this AgreementIndenture and such Securities by the Company to the Trustee or the Holders thereof, whether at the maturityStated Maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners such Holders or, subject to Section 9.04 of the Indenture5.7 hereof, by the Ownerssuch Holders, on the terms and conditions set forth in the this Indenture, directly against the Guarantors such Guarantor to enforce the Guarantees its Guarantee without first proceeding against the CompanyCompany or any other Guarantor. To the fullest extent permitted by applicable law, the obligations of each Guarantor the Guarantors under this Section 2 of Exhibit A Article Fourteen shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such any Guarantor contained in the Indenture any of such Securities or this AgreementIndenture, (ii) any impairment, modification, release or limitation of the liability of the Company, such any Guarantor 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 Company, such Guarantor, the Trustee or the Issuer any such Holder of any rights or remedies under the Indenture any of such Securities or this Agreement 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 any of the Bondssuch Securities, including all or any part of the rights of the Company or such any Guarantor under the Indenture or this AgreementIndenture, (v) the extension of the time for payment by the Company or such any Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture such Securities or this Agreement Indenture or of the time for performance by the Company or such any Guarantor 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 Company or such any Guarantor set forth in the Indenture or this AgreementIndenture, (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 readjustment, rehabilitation or relief of, or other similar proceeding affecting, the Company or any of the Guarantors Guarantor or any of their respective assets, or the disaffirmance of any of the Bondssuch Securities, the Guarantees or the this Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such any Guarantor 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 any of the Bondssuch Securities, the Guarantees, the Indenture Guarantees or this AgreementIndenture, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such any Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such any Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or such any Guarantor, and all demands and notices whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its Guarantee will not be discharged except by complete performance of the Guarantees. Each Guarantor further agrees that to To the fullest extent permitted by applicable law, each Guarantor further agrees that if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such any Guarantor, 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 Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made. The Guarantors shall be subrogated to all rights of the Owners, the Issuer Holders and the Trustee against the Company in respect of any amounts paid by the Guarantors pursuant to the provisions of the Indenture and this AgreementIndenture; provided, however, that the Guarantors shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Company Obligations such Securities until all of the Bonds such Securities and the Guarantees thereof shall have been indefeasibly paid in full or discharged. A director, officer, employee, employee or stockholder, partner or member, as such, of the Guarantors a Guarantor shall not have any liability for any obligations of the Guarantors such Guarantor under the this Indenture or this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation. No To the fullest extent permitted by applicable law, no failure to exercise and no delay in exercising, on the part of the Trustee, the Issuer Trustee or the OwnersHolders, any right, power, privilege or remedy under this Section 2 of Exhibit A Article Fourteen and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A Article Fourteen shall limit the right of the Trustee, the Issuer Trustee or the Owners Holders to take any action to accelerate the maturity of the Bonds such Securities pursuant to Section 9.02 of the Indenture Article Five or to pursue any rights or remedies hereunder or under applicable law.
Appears in 1 contract
Samples: Third Supplemental Indenture (Weatherford International Ltd./Switzerland)
Unconditional Guarantees. For value received(FORM OF GUARANTEE) FOR VALUE RECEIVED, the Guarantors Guarantor, hereby fully, irrevocably, irrevocably and unconditionally and absolutely guarantee guarantees to the Owners registered holder of this Debt Security upon which this Guarantee is endorsed that: (i) principal of, premium, if any, interest and any other payments on said security will be promptly paid in full when due, subject to any applicable grace period, whether on the stated maturity, on an interest payment date, by acceleration, by call for redemption, upon repurchase or purchase pursuant to the Trustee Indenture referred to therein or otherwise, and interest on the due overdue principal and punctual payment premium, if any, and interest on any interest or any other payment, to the extent lawful (in each case including interest accruing on or after filing of any petition in bankruptcy or reorganization relating to the Issuer or the Guarantor, whether or not a claim for post-filing interest is allowed in each proceeding) and all other obligations of the Company ObligationsIssuer to the registered holder of this Debt Security under this Debt Security or the Indenture will be promptly paid in full when due 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 said Debt Security or of any such other obligations, the same will be promptly paid in full when and as such Company Obligations shall become due and payable according to or performed in accordance with the terms of the Indenture and this Agreement. The guarantees extension or renewal, subject to any applicable grace period, whether at maturity, on an interest payment date, by the Guarantors set forth in this Section 2 of Exhibit A are referred to herein as the “Guarantees.” Without limiting the generality of the foregoingacceleration, the Guarantors’ liability shall extend to all amounts that constitute part of the Company Obligations and would be owed by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding required repurchase or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such Guarantor. Each Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Company Obligations, the Guarantees or this Agreement, the absence of any action to enforce the same, any waiver or consent by any party with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantor. The Guarantor hereby agrees that in the event its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of, and unaffected by, any invalidity, irregularity or unenforceability of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption Debt Security or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by any failure to enforce the Owners, on the terms and conditions set forth in provisions of this Debt Security or the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, modification or indulgence granted to the Issuer with respect thereto by the holders of this Debt Security or modification ofthe Trustee, or any change in, any of the obligations and liabilities of the Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might may otherwise constitute a defense available to, or a legal or equitable discharge of, of a surety or guarantor; provided that, notwithstanding the foregoing, no such Guarantor. To waiver, modification, indulgence or circumstance shall without the fullest extent permitted by applicable law, each written consent to the Guarantor hereby (i) waives diligence, presentment, demand increase the principal amount of payment, notice of acceptance, filing of claims with a court in this Debt Security or the event interest rate thereon or This Guarantee is dated the date of the merger, insolvency or bankruptcy of the Company or such Guarantor, and all demands and notices whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its Guarantee will not be discharged except by complete performance of the GuaranteesDebt Security upon which it is endorsed. Each Guarantor further agrees that to the fullest extent permitted by applicable law, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned If for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such Guarantor, such this Guarantee shall, to the extent that such payment is or must be rescinded or returned, shall be deemed to have continued be unenforceable, the Guarantor hereby irrevocably and unconditionally agrees as a primary obligor to indemnify fully the registered holder of this Debt Security upon which this Guarantee is endorsed for and against any amounts owed by the Issuer in existence notwithstanding such application, respect of this Debt Security and the Guarantees shall continue to Indenture that otherwise would be effective or be reinstated, as the case may be, as though such application had not been madepayable under this Guarantee. The Guarantors Guarantor shall be subrogated to all rights of the Owners, holder of said Security against the Issuer and the Trustee against the Company in respect of any amounts paid by the Guarantors Guarantor pursuant to the provisions of the Indenture and this AgreementGuarantee; provided, however, that the Guarantors Guarantor shall not not, without the consent of the holders of all of the Securities then outstanding, be entitled to enforce or to receive any payments arising out of, of or based upon, upon such right of subrogation with respect to any until the principal of the Company Obligations until and premium, if any, and interest on all of the Bonds and the Guarantees Securities shall have been paid in full or payment thereof shall have been indefeasibly paid provided for in full accordance with said Indenture. Notwithstanding anything to the contrary contained herein, if following any payment of principal or discharged. A director, officer, employee, stockholder, partner or member, as such, interest by the Issuer on the Securities to the holders of the Guarantors Securities it is determined by a final decision of a court of competent jurisdiction that such payment shall not have be avoided by a trustee in bankruptcy (including any liability for any debtor-in-possession) as a preference under 11 U.S.C. Section 547 and such payment is paid by such holder to such trustee in bankruptcy, then and to the extent of such repayment, the obligations of the Guarantors Guarantor hereunder shall remain in full force and effect. Notwithstanding anything to the contrary contained herein, upon consummation of the Merger, the Company will assume all of the Issuer's obligations on this Debt Security and under the Indenture Indenture, and the Company will be automatically and unconditionally released and discharged from its obligations under this Guarantee. This Guarantee shall not be valid or this Agreement or become obligatory for any claim based on, in purpose with respect to a Security until the certificate of authentication on such Security shall have been signed by the Trustee (or the Authentication Agent). This Guarantee shall be governed by reason of such obligations or their creation. No failure to exercise and no delay in exercising, on the part laws of the Trustee, the Issuer or the Owners, any right, power, privilege or remedy under this Section 2 State of Exhibit A and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A shall limit the right of the Trustee, the Issuer or the Owners to take any action to accelerate the maturity of the Bonds pursuant to Section 9.02 of the Indenture or to pursue any rights or remedies hereunder or under applicable lawNew York.
Appears in 1 contract
Samples: Consumers Energy Co
Unconditional Guarantees. For value received, the Guarantors hereby fully, irrevocably, unconditionally and absolutely guarantee Subject to the Owners and to the Trustee the due and punctual payment of the Company Obligations, when and as such Company Obligations shall become due and payable according to the terms of the Indenture and this Agreement. The guarantees by the Guarantors any other provisions set forth in this Section 2 of Exhibit A are the Board Resolution or supplemental indenture relating to a particular series, each Guarantor hereby unconditionally, jointly and severally, guarantees (each such guarantee to be referred to herein as the “Guarantees.” Without limiting "Guarantee") to each Holder of Securities of such Series authenticated and delivered by the generality Trustee and to the Trustee and its successors and assigns, that: (i) the principal of and interest on the Securities of such se- ries will be promptly paid in full when due, whether at Maturity, by accxxxxation or otherwise and interest on the overdue principal, if any, and interest on any interest of the foregoing, the Guarantors’ liability shall extend to Securities of such series and all amounts that constitute part other obligations of the Company Obligations and would be owed by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence 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 of such series or of any such other obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal whether at Maturity, by acceleration or otherwise, subject, however, in the case of clauses (i) and (ii) above, to the limitations set forth in Section 1404; provided, however, that notwithstanding anything contained herein to the contrary, no Guarantor shall be liable under this Indenture until it becomes a bankruptcy, reorganization direct or similar proceeding involving indirect Subsidiary of the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such Guarantor. Each Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Company Obligations, the Guarantees Securities of such series or this AgreementIndenture, the absence of any action to enforce the same, any waiver or consent by any party Holder of the Securities of such series with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantora guarantor. The Each Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or such GuarantorCompany, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and notices whatsoevercovenants that, (ii) acknowledges that any agreementsubject to Section 1403, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its this Guarantee will not be discharged except by complete performance of the Guaranteesobligations contained in the Securities of the applicable series, this Indenture and in this Guarantee. If any Holder or the Trustee is required by any court or otherwise to return to the Company, any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Company or any Guarantor, any amount paid by the Company or any 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 to the fullest extent permitted by applicable lawthat, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such as between each Guarantor, such Guarantee shall, to on the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such applicationone hand, and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made. The Guarantors shall be subrogated to all rights of the Owners, the Issuer Holders and the Trustee against the Company in respect of any amounts paid by the Guarantors pursuant to the provisions of the Indenture and this Agreement; provided, however, that the Guarantors shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Company Obligations until all of the Bonds and the Guarantees thereof shall have been indefeasibly paid in full or discharged. A director, officer, employee, stockholder, partner or member, as such, of the Guarantors shall not have any liability for any obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation. No failure to exercise and no delay in exercisingTrustee, on the part of the Trusteeother hand, the Issuer or the Owners, any right, power, privilege or remedy under this Section 2 of Exhibit A and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A shall limit the right of the Trustee, the Issuer or the Owners to take any action to accelerate (x) the maturity of the Bonds pursuant to Section 9.02 obligations guaranteed hereby may be accelerated as provided in Article Five for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Indenture obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article Five, such obligations (whether or to pursue any rights or remedies hereunder or under applicable lawnot due and payable) shall forthwith become due and payable by each Guarantor for the purpose of this Guarantee.
Appears in 1 contract
Samples: Fred Meyer Inc
Unconditional Guarantees. For value received(FORM OF GUARANTEE) FOR VALUE RECEIVED, the Guarantors Guarantor hereby fully, irrevocably, unconditionally and absolutely guarantee guarantees to the Owners and to holder of the Trustee Debt Security upon which this Guarantee is endorsed the due and punctual payment of the Company Obligationsprincipal or interest on said Debt Security, when and as such Company Obligations the same shall become due and payable payable, whether at maturity, upon redemption or otherwise, according to the terms thereof and of the Indenture and this Agreementreferred to therein. The guarantees by Guarantor agrees to determine, at least one Business Day prior to the Guarantors set forth in this Section 2 date upon which a payment of Exhibit A are referred principal of or interest on said Debt Security is due and payable, whether the Company has available the funds to herein make such payment as the “Guarantees.” Without limiting the generality same shall become due and payable. In case of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part failure of the Company Obligations punctually to pay any such principal, premium, if any, or interest, the Guarantor hereby agrees to cause any such payment to be made punctually when and would be owed as the same shall become due and payable, whether at maturity, upon redemption, or otherwise, and as if such payment were made by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such Guarantor. Each The Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be fullunconditional, irrevocable, unconditional and absolute, irrespective of the validity, regularity regularity, or enforceability of the Company Obligations, the Guarantees said Debt Security or this Agreementsaid Indenture, the absence of any action to enforce the same, any waiver or consent by any party the Holder of said Debt Security with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, Company or any action to enforce the same same, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantora guarantor. The Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency merger or bankruptcy of the Company Company, any right to require a proceeding first against the Company, protest or such Guarantornotice with respect to said Debt Security or indebtedness evidenced thereby, and all demands whatsoever and notices whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its this Guarantee will not be discharged except by complete performance of the Guarantees. Each Guarantor further agrees that to the fullest extent permitted by applicable law, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such Guarantor, such Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued obligations contained in existence notwithstanding such application, said Security and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been madein this Guarantee. The Guarantors Guarantor shall be subrogated to all rights of the Owners, the Issuer and the Trustee holder of said Debt Security against the Company in respect of any amounts paid by the Guarantors Guarantor pursuant to the provisions of the Indenture and this AgreementGuarantee; provided, however, that the Guarantors Guarantor shall not not, without the consent of the holders of all of the Debt Securities then outstanding, be entitled to enforce or to receive any payments arising out of, of or based upon, upon such right of subrogation with respect to any until the principal of the Company Obligations until and premium, if any, and interest on all of the Bonds and the Guarantees Debt Securities shall have been paid in full or payment thereof shall have been indefeasibly paid provided for in full accordance with said Indenture. Notwithstanding anything to the contrary contained herein, if following any payment of principal or discharged. A director, officer, employee, stockholder, partner or member, as such, interest by the Company on the Debt Securities to the holders of the Guarantors Debt Securities it is determined by a final decision of a court of competent jurisdiction that such payment shall not have be avoided by a trustee in bankruptcy (including any liability for any debtor-in-possession) as a preference under 11 U.S.C. Section 547 and such payment is paid by such holder to such trustee in bankruptcy, then and to the extent of such repayment, the obligations of the Guarantors under the Indenture Guarantor hereunder shall remain in full force and effect. This Guarantee shall not be valid or this Agreement or become obligatory for any claim based on, in purpose with respect to a Debt Security until the certificate of authentication on such Security shall have been signed by the Trustee (or the Authentication Agent). This Guarantee shall be governed by reason of such obligations or their creation. No failure to exercise and no delay in exercising, on the part laws of the Trustee, the Issuer or the Owners, any right, power, privilege or remedy under this Section 2 State of Exhibit A and the Guarantees shall operate as a waiver New York without regard to conflicts of laws principles thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A shall limit the right of the Trustee, the Issuer or the Owners to take any action to accelerate the maturity of the Bonds pursuant to Section 9.02 of the Indenture or to pursue any rights or remedies hereunder or under applicable law.
Appears in 1 contract
Unconditional Guarantees. For value received(FORM OF GUARANTEE) FOR VALUE RECEIVED, the Guarantors Guarantor hereby fully, irrevocably, unconditionally and absolutely guarantee guarantees to the Owners and to holder of the Trustee Security upon which this Guarantee is endorsed the due and punctual payment of the Company Obligationsprincipal of, sinking fund payment, if any, premium, if any, or interest on said Security, when and as such Company Obligations the same shall become due and payable payable, whether at maturity, upon redemption or otherwise, according to the terms thereof and of the Indenture and this Agreementreferred to therein. The guarantees by Guarantor agrees to determine, at least one Business Day prior to the Guarantors set forth in this Section 2 date upon which a payment of Exhibit A are referred principal of, sinking fund payment, if any, premium, if any, or interest on said Security is due and payable, whether the Company has available the funds to herein make such payment as the “Guarantees.” Without limiting the generality same shall become due and payable. In case of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part failure of the Company Obligations punctually to pay any such principal, sinking fund payment, if any, premium, if any, or interest, the Guarantor hereby agrees to cause any such payment to be made punctually when and would be owed as the same shall become due and payable, whether at maturity, upon redemption, or otherwise, and as if such payment were made by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such Guarantor. Each The Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be fullunconditional, irrevocable, unconditional and absolute, irrespective of the validity, regularity regularity, or enforceability of the Company Obligations, the Guarantees said Security or this Agreementsaid Indenture, the absence of any action to enforce the same, any waiver or consent by any party the holder of said Security with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, Company or any action to enforce the same same, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantora guarantor. The Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency merger or bankruptcy of the Company Company, any right to require a proceeding first against the Company, protest or such Guarantornotice with respect to said Security or indebtedness evidenced thereby, and all demands whatsoever and notices whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its this Guarantee will not be discharged except by complete performance of the Guarantees. Each Guarantor further agrees that to the fullest extent permitted by applicable law, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such Guarantor, such Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued obligations contained in existence notwithstanding such application, said Security and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been madein this Guarantee. The Guarantors Guarantor shall be subrogated to all rights of the Owners, the Issuer and the Trustee holder of said Security against the Company in respect of any amounts paid by the Guarantors Guarantor pursuant to the provisions of the Indenture and this AgreementGuarantee; provided, however, that the Guarantors Guarantor shall not not, without the consent of the holders of all of the Securities then outstanding, be entitled to enforce or to receive any payments arising out of, of or based upon, upon such right of subrogation with respect to any until the principal of the Company Obligations until and premium, if any, and interest on all of the Bonds and the Guarantees Securities shall have been paid in full or payment thereof shall have been indefeasibly paid provided for in full accordance with said Indenture. Notwithstanding anything to the contrary contained herein, if following any payment of principal or discharged. A director, officer, employee, stockholder, partner or member, as such, interest by the Company on the Securities to the holders of the Guarantors Securities it is determined by a final decision of a court of competent jurisdiction that such payment shall not have be avoided by a trustee in bankruptcy (including any liability for any debtor-in-possession) as a preference under 11 U.S.C. Section 547 and such payment is paid by such holder to such trustee in bankruptcy, then and to the extent of such repayment, the obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, Guarantor hereunder shall remain in respect of or by reason of such full force and effect. The obligations or their creation. No failure to exercise and no delay in exercising, on the part of the Trustee, the Issuer or the Owners, any right, power, privilege or remedy Guarantor under this Section 2 of Exhibit A and Guarantee are, to the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies extent provided in law or equity. Nothing contained the Indenture, subordinate and junior in this Section 2 of Exhibit A shall limit the right of payment to the Trusteeprior payment in full of all Senior Indebtedness, and this Guarantee is issued subject to the Issuer or the Owners to take any action to accelerate the maturity of the Bonds pursuant to Section 9.02 provisions of the Indenture with respect thereto. Each holder of the Security upon which this Guarantee is endorsed, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his or her behalf to pursue take such action as may be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c) appoints the Trustee his or her attorney-in-fact for any rights and all such purposes. Each holder of the Security upon which this Guarantee is endorsed, by his or remedies hereunder her acceptance thereof, hereby waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now outstanding or under applicable lawhereafter incurred, and waives reliance by each holder upon said provisions. This Guarantee shall not be valid or become obligatory for any purpose with respect to a Security until the certificate of authentication on such Security shall have been signed by the Trustee (or the Authentication Agent). This Guarantee shall be governed by the laws of the State of New York.
Appears in 1 contract
Samples: Indenture (Countrywide Capital Ii)
Unconditional Guarantees. For value received, the Guarantors hereby fully, irrevocably, unconditionally and absolutely guarantee Subject to the Owners and to the Trustee the due and punctual payment of the Company Obligations, when and as such Company Obligations shall become due and payable according to the terms of the Indenture and this Agreement. The guarantees by the Guarantors any other provisions set forth in this Section 2 of Exhibit A are the Authorizing Resolution or supplemental indenture relating to a particular Series, each Guarantor hereby unconditionally, jointly and severally, guarantees (each such guarantee to be referred to herein as the “Guarantees.” Without limiting "Guarantee") to each Holder of Securities of such Series authenticated and delivered by the generality Trustee and to the Trustee and its successors and assigns, that: (i) the principal of 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 interest on the overdue principal, if any, and interest on any interest of the foregoing, the Guarantors’ liability shall extend to Securities of such Series and all amounts that constitute part other obligations of the Company Obligations and would be owed by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence Holders or the Trustee hereunder or thereunder, except obligations to pay principal and interest 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 a bankruptcyany extension of time of payment or renewal of any Securities of such Series or of any such other obligations, reorganization or similar proceeding involving the Company. Failing payment same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any amount guaranteed pursuant applicable grace period, whether at stated maturity, by acceleration or otherwise, subject, however, in the case of clauses (i) and (ii) above, to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu limitations set forth in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such GuarantorSection 9.04. Each Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absoluteunconditional, irrespective of the validity, regularity or enforceability of the Company Obligations, the Guarantees Securities of such Series or this AgreementIndenture, the absence of any action to enforce the same, any waiver or consent by any party Holder of the Securities of such Series with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantora guarantor. The Each Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, 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 Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor 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 Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement 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 any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor 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 Company or such Guarantor set forth in the Indenture or this Agreement, (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 Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor 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 any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or such GuarantorCompany, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and notices whatsoevercovenants that, subject to Section 9.03 (ii) acknowledges that any agreementin the case of Subsidiary Guarantors), instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its this Guarantee will not be discharged except by complete performance of the Guaranteesobligations contained in the Securities of the applicable Series, this Indenture and in this Guarantee. If any Holder or the Trustee is required by any court or otherwise to return to the Company, any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Company or any Guarantor, any amount paid by the Company or any 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 to the fullest extent permitted by applicable lawthat, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such as between each Guarantor, such Guarantee shall, to on the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such applicationone hand, and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made. The Guarantors shall be subrogated to all rights of the Owners, the Issuer Holders and the Trustee against the Company in respect of any amounts paid by the Guarantors pursuant to the provisions of the Indenture and this Agreement; provided, however, that the Guarantors shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Company Obligations until all of the Bonds and the Guarantees thereof shall have been indefeasibly paid in full or discharged. A director, officer, employee, stockholder, partner or member, as such, of the Guarantors shall not have any liability for any obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation. No failure to exercise and no delay in exercisingTrustee, on the part of the Trusteeother hand, the Issuer or the Owners, any right, power, privilege or remedy under this Section 2 of Exhibit A and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A shall limit the right of the Trustee, the Issuer or the Owners to take any action to accelerate (x) the maturity of the Bonds pursuant to Section 9.02 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 Indenture obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article Six, such obligations (whether or to pursue any rights or remedies hereunder or under applicable lawnot due and payable) shall forthwith become due and payable by each Guarantor for the purpose of this Guarantee.
Appears in 1 contract
Samples: Collins & Aikman Products Co
