Guarantee of Securities. SECTION 1601 GUARANTEE. This Section 1601 and Section 1602 apply to the Securities of any series to the extent that the form of the Guarantee to be endorsed on such Securities is not otherwise specifically established as contemplated by Section 301. The Guarantor hereby unconditionally guarantees to each Holder of a Security of each series authenticated and delivered by the Trustee the due and punctual payment of the principal (including any amount due in respect of original issue discount) of and any premium and interest on and Additional Amounts with respect to such Security, and the due and punctual payment of any sinking fund payments provided for pursuant to the terms of such Security, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, in accordance with the terms of such Security and of this Indenture. The Guarantor hereby agrees that its obligations hereunder shall be as if it were a principal debtor and not merely a surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Security of any series or this Indenture, any failure to enforce the provisions of any Security of any series or this Indenture, any waiver, modification, consent or indulgence granted to the Company with respect thereto, by the Holder of any Security of any series or the Trustee, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company, the benefit of discussion, protest or notice with respect to any Security or the indebtedness evidenced thereby or with respect of any sinking fund payment required pursuant to the terms of a Security issued under this Indenture and all demands whatsoever, and covenants that this Guarantee will not be discharged with respect to any Security except by payment in full of the principal thereof and any premium and interest or Additional Amounts thereon or as provided in Article IV, Section 802 or Article XIV. The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, the Maturity of the obligations guaranteed hereby may be accelerated as provided in Article V hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby. This Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment on any Company Security, in whole or in part, is rescinded or must otherwise be restored to the Company or the Guarantor upon the bankruptcy, liquidation or reorganization of the Company or otherwise. The Guarantor hereby waives, in favor of the Holders and the Trustee, any and all of its rights, protections, privileges and defenses provided by any applicable law to a guarantor and waives any right of set-off which the Guarantor may have against the Holder of a Security in respect of any amounts which are or may become payable by the Holder of a Security to the Company. The Guarantor shall be subrogated to all rights of each Holder of Securities against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; PROVIDED, HOWEVER, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and any premium and interest on all the Securities of the same series and of like tenor shall have been paid in full. The Guarantee shall be governed by and construed in accordance with the laws of the State of New York. The Guarantor agrees to pay any and all costs and expenses (including reasonable attorneys' fees and expenses) incurred by the Trustee or any Holders in enforcing any rights under the Guaranty. No past, present or future stockholder, officer, director, employee or incorporator of the Guarantor shall have any personal liability under the Guarantee set forth in this Section 1601 by reason of his or its status as such stockholder, officer, director, employee or incorporator. The Guarantee set forth in this Section 1601 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 or on behalf of the Trustee.
Appears in 1 contract
Samples: Indenture (Deere & Co)
Guarantee of Securities. SECTION 1601 GUARANTEEGuarantee. This Section 1601 and Section 1602 apply to the Securities of any series to the extent that the form of the Guarantee to be endorsed on such Securities is not otherwise specifically established as contemplated by Section 301Sections 301 and 204. The Guarantor hereby fully and unconditionally guarantees to the Trustee and each Holder of a Security of each series authenticated and delivered by the Trustee the due and punctual payment of the principal (including any amount due in respect of original issue discount) of and any premium and interest on and Additional Amounts with respect to such Security, and the due and punctual payment of any sinking fund payments provided for pursuant to the terms of such Security, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, in accordance with the terms of such Security and of this Indenture and the full and punctual payment of all other amounts payable by the Company under this Indenture. The Guarantor hereby agrees that its obligations hereunder shall be as if it were a principal debtor and not merely a surety, and shall be absolute absolute, irrevocable by the Guarantor and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Security of any series or this IndentureIndenture or to bring any action to enforce the same, any failure to enforce the provisions of any Security of any series or this Indenture, any waiver, modification, consent or indulgence granted to the Company with respect thereto, by the Holder of any Security of any series or the Trustee, or any other circumstances which may otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, the benefit of discussion, protest or notice with respect to any Security or the indebtedness evidenced thereby or with respect of any sinking fund payment required pursuant to the terms of a Security issued under this Indenture and all demands whatsoever, and covenants that this Guarantee will not be discharged with respect to any Security except by payment in full of the principal thereof and any premium premium, interest and interest or Additional Amounts (if any) thereon or as provided in Article IV, Section 802 or Article XIV. The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, the Maturity of the obligations guaranteed hereby may be accelerated as provided in Article V hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby. This Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment on any Company Security, in whole or in part, is rescinded or reduced in amount or must otherwise be restored or returned to the Company or the Guarantor upon the bankruptcy, liquidation or reorganization of the Company or otherwise. The Guarantor hereby waives, in favor of the Holders and the Trustee, any and all of its rights, protections, privileges and defenses provided by any applicable law to a guarantor and waives any right of set-off which the Guarantor may have against the Holder of a Security in respect of any amounts which are or may become payable by the Holder of a Security to the Company. The Guarantor shall be subrogated to all rights of each Holder of Securities against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; PROVIDEDprovided, HOWEVERhowever, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and any premium and interest on all the Securities of the same series and of like tenor shall have been paid in full. The Guarantee shall be governed by and construed in accordance with the laws of the State of New York. The Guarantor agrees to pay any and all costs and expenses (including reasonable attorneys' ’ fees and expenses) incurred by the Trustee or any Holders in enforcing any rights under the GuarantyGuarantee. No past, present or future stockholder, officer, director, employee or incorporator of the Guarantor shall have any personal liability under the Guarantee set forth in this Section 1601 by reason of his or its status as such stockholder, officer, director, employee or incorporator. The Guarantee set forth in this Section 1601 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 or on behalf of the Trustee.
Appears in 1 contract
Guarantee of Securities. SECTION 1601 GUARANTEE. This Section 1601 and Section 1602 apply Guarantee.
(a) Each Person who may become a “Guarantor” with respect to the Securities of any series of Securities to the extent that the form of the Guarantee to be endorsed on such Securities which this Article Sixteen is not otherwise specifically established as contemplated by Section 301. The Guarantor hereby made applicable, irrevocably and unconditionally guarantees (the “Guarantee”) to each Holder of a Security of each such series authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities of such series or the obligations of the Operating Partnership under this Indenture or the Securities of such series, that: (i) the principal of and premium, if any, and interest on the Securities of such series will be paid in full when due, whether at the Stated Maturity or Interest Payment Date, by acceleration, call for redemption, or otherwise; (ii) all other obligations of the Operating Partnership to the Holders of such series or the Trustee under this Indenture or the Securities of such series will be promptly paid in full, all in accordance with the terms of this Indenture and the Securities of such series; and (iii) in case of any extension of time of payment or renewal of any Securities of such series or any of such other obligations thereunder, they will be paid in full when due and punctual in accordance with the terms of the extension or renewal, whether at the Stated Maturity or Interest Payment Date, by acceleration, call for redemption, or otherwise. Failing payment when due of any amount so guaranteed for whatever reason, each Guarantor shall be obligated to pay the same before failure so to pay becomes an Event of Default with respect to Securities of any series. If the Operating Partnership defaults in the payment of the principal (including any amount due in respect of original issue discount) of and any premium and or premium, if any, or interest on and Additional Amounts with respect to such Security, and the due and punctual payment Securities of any sinking fund payments provided for pursuant to the terms of such Security, a series so guaranteed when and as the same shall become due and payabledue, whether at the Stated MaturityMaturity or Interest Payment Date, by declaration of acceleration, call for redemption redemption, or otherwise, without the necessity of action by the Trustee or any Holder, each Guarantor with respect to such series shall be required to promptly make such payment in accordance with the terms of such Security and of this Indenturefull. The obligations of all Guarantors under this Article Sixteen shall be joint and several.
(b) Each Guarantor hereby agrees with respect to Securities of any series that its obligations hereunder with regard to this Guarantee shall be as if it were a principal debtor and not merely a surety, as surety and shall be absolute full, irrevocable and unconditional, irrespective ofof the validity, and shall be unaffected by, any invalidity, irregularity regularity or unenforceability enforceability of any Security the Securities of any such series or this Indenture, the absence of any failure action to enforce the provisions same, any delays in obtaining or realizing upon or failures to obtain or realize upon collateral, the recovery of any Security of any series or this Indenturejudgment against the Operating Partnership, any waiver, modification, consent or indulgence granted action to enforce the Company with respect thereto, by the Holder of any Security of any series or the Trustee, same or any other circumstances which may that might otherwise constitute a legal or equitable discharge or defense of a surety or a guarantor. The Each Guarantor with respect to Securities of any series hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger insolvency or bankruptcy of the CompanyOperating Partnership, any right to require a proceeding first against the CompanyOperating Partnership or right to require the prior disposition of the assets of the Operating Partnership to meet its obligations, the benefit of discussionprotest, protest or notice with respect to any Security or the indebtedness evidenced thereby or with respect of any sinking fund payment required pursuant to the terms of a Security issued under this Indenture and all demands whatsoever, whatsoever and covenants that this Guarantee will not be discharged except by complete performance of all obligations contained in the Securities of such series and this Indenture as it relates to such series of Securities. Each Guarantee is a guaranty of payment and not of collection.
(c) If any Holder of Securities of a series or the Trustee is required by any court or otherwise to return to any of the Operating Partnership or a Guarantor with respect to Securities of that series, or any Security except custodian, trustee, or similar official acting in relation to any of the Operating Partnership or a Guarantor, any amount paid by any of the Operating Partnership or a Guarantor to the Trustee or such Holder with respect to Securities of that series, the Guarantee with respect to Securities of that series, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders of Securities of a series in respect of any obligations guaranteed hereby until payment in full of the principal thereof and any premium and interest or Additional Amounts thereon or as provided in Article IV, Section 802 or Article XIVall obligations of Securities of such series. The Each Guarantor further agrees that, as between the GuarantorGuarantors, on the one hand, and the Holders and the Trustee, on the other hand, (i) the Maturity maturity of the obligations guaranteed hereby may be accelerated as provided in Article V hereof Section 502 for the purposes of this a Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect as to the Operating Partnership of the obligations guaranteed hereby. This Guarantee shall continue so guaranteed, and (ii) in the event of any declaration of acceleration of those obligations as provided in Section 502, those obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors with respect to be effective or be reinstated, as the case may be, if at any time payment on any Company Security, in whole or in part, is rescinded or must otherwise be restored to the Company or the Guarantor upon the bankruptcy, liquidation or reorganization Securities of a series for purposes of the Company Guarantee.
(d) Each Guarantor and by its acceptance of a Security issued hereunder each Holder hereby confirms that it is the intention of all such parties that the Guarantee by each Guarantor set forth in Section 1601(a) not constitute a fraudulent transfer or otherwiseconveyance for purpose of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. The Guarantor hereby waivesTo effectuate the foregoing intention, in favor of the Holders and all Guarantors hereby irrevocably agree that the Trustee, any and all of its rights, protections, privileges and defenses provided by any applicable law to a guarantor and waives any right of set-off which the Guarantor may have against the Holder of a Security in respect of any amounts which are or may become payable by the Holder of a Security to the Company. The Guarantor shall be subrogated to all rights obligations of each Holder of Securities against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; PROVIDED, HOWEVER, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and any premium and interest on all the Securities of the same series and of like tenor shall have been paid in full. The Guarantee shall be governed by and construed in accordance with the laws of the State of New York. The Guarantor agrees to pay any and all costs and expenses (including reasonable attorneys' fees and expenses) incurred by the Trustee or any Holders in enforcing any rights under the Guaranty. No past, present or future stockholder, officer, director, employee or incorporator of the Guarantor shall have any personal liability Guarantors under the Guarantee set forth in this Section 1601 by reason 1601(a) shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of his such Guarantor, and after giving effect to any collections from or its status as such stockholder, officer, director, employee or incorporator. The Guarantee set forth in this Section 1601 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 payments made by or on behalf of any other Guarantor in respect of the Trusteeobligations of such other Guarantor under its Guarantee or pursuant to the next succeeding sentence, result in the obligations of such Guarantor under such Guarantee not constituting such a fraudulent transfer or conveyance. Each Guarantor that makes any payment or distribution under Section 1601(a) shall be entitled to a contribution from each other Guarantor equal to its Pro Rata Portion of such payment or distribution. For purposes of the foregoing, the “Pro Rata Portion” of any Guarantor means the percentage of net assets of all Guarantors held by such Guarantor, determined in accordance with GAAP.
(e) It is the intention of the parties that the obligations of the Guarantors shall be in, but not in excess of, the maximum amount permitted by applicable law. Accordingly, if the obligations in respect of the Guarantee would be annulled, avoided or subordinated to the creditors of any Guarantor by a court of competent jurisdiction in a proceeding actually pending before such court as a result of a determination both that such Guarantee was made without fair consideration and, immediately after giving effect thereto, such Guarantor was insolvent or unable to pay its debts as they mature or left with an unreasonably small capital, then the obligations of such Guarantor under such Guarantee shall be reduced by such court if and to the extent such reduction would result in the avoidance of such annulment, avoidance or subordination; provided, however, that any reduction pursuant to this paragraph shall be made in the smallest amount as is strictly necessary to reach such result. For purposes of this paragraph, “fair consideration,” “insolvency,” “unable to pay its debts as they mature,” “unreasonably small capital” and the effective times of reductions, if any, required by this paragraph shall be determined in accordance with applicable law.
(f) If the obligations of any Guarantor are reduced pursuant to Section 1601(d) or 1601(e) above, such reduction shall be applied proportionately with respect to all Securities (of whatever series) guaranteed under Section 1601, in accordance with the respective outstanding principal amount of such Securities so guaranteed (or, if any Securities are Original Issue Discount Securities, the accreted value of such Securities) and being then due upon the acceleration of the payment of such Securities.
Appears in 1 contract
Guarantee of Securities. SECTION 1601 GUARANTEE. This Section 1601 and Section 1602 apply Guarantee.
(a) Each Person who may become a “Guarantor” with respect to the Securities of any series of Securities to the extent that the form of the Guarantee to be endorsed on such Securities which this Article Sixteen is not otherwise specifically established as contemplated by Section 301. The Guarantor hereby made applicable, irrevocably and unconditionally guarantees (the “Guarantee”) to each Holder of a Security of each such series authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities of such series, the obligations of the Operating Partnership under this Indenture or the Securities of such series or irrespective of restrictions of any kind on the Operating Partnership’s performance of its obligations under the Securities, and waiving all rights of objection and defense arising from the Securities, that: (i) the principal of and premium, if any, and interest on the Securities of such series will be punctually paid in full when due, whether at the Stated Maturity or Interest Payment Date, by acceleration, call for redemption, or otherwise; (ii) all other obligations of the Operating Partnership to the Holders of such series or the Trustee under this Indenture or the Securities of such series will be promptly paid in full, all in accordance with the terms of this Indenture and the Securities of such series; and (iii) in case of any extension of time of payment or renewal of any Securities of such series or any of such other obligations thereunder, they will be paid in full when due and punctual in accordance with the terms of the extension or renewal, whether at the Stated Maturity or Interest Payment Date, by acceleration, call for redemption, or otherwise. Failing payment when due of any amount so guaranteed for whatever reason, each Guarantor shall be obligated to pay the same before failure so to pay becomes an Event of Default with respect to Securities of any series. If the Operating Partnership defaults in the payment of the principal (including any amount due in respect of original issue discount) of and any premium and or premium, if any, or interest on and Additional Amounts with respect to such Security, and the due and punctual payment Securities of any sinking fund payments provided for pursuant to the terms of such Security, a series so guaranteed when and as the same shall become due and payabledue, whether at the Stated MaturityMaturity or Interest Payment Date, by declaration of acceleration, call for redemption redemption, or otherwise, without the necessity of action by the Trustee or any Holder, each Guarantor with respect to such series shall be required to promptly make such payment in accordance with the terms of such Security and of this Indenturefull. The obligations of all Guarantors under this Article Sixteen shall be joint and several.
(b) Each Guarantor hereby agrees with respect to Securities of any series that its obligations hereunder with regard to this Guarantee shall be as if it were a principal debtor and not merely a surety, as surety and shall be absolute full, irrevocable and unconditional, irrespective ofof the validity, and shall be unaffected by, any invalidity, irregularity regularity or unenforceability enforceability of any Security the Securities of any such series or this Indenture, the absence of any failure action to enforce the provisions same, any delays in obtaining or realizing upon or failures to obtain or realize upon collateral, the recovery of any Security of any series or this Indenturejudgment against the Operating Partnership, any waiver, modification, consent or indulgence granted action to enforce the Company with respect thereto, by the Holder of any Security of any series or the Trustee, same or any other circumstances which may that might otherwise constitute a legal or equitable discharge or defense of a surety or a guarantor. The Each Guarantor with respect to Securities of any series hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger insolvency or bankruptcy of the CompanyOperating Partnership, any right to require a proceeding first against the CompanyOperating Partnership or right to require the prior disposition of the assets of the Operating Partnership to meet its obligations, the benefit of discussionprotest, protest or notice with respect to any Security or the indebtedness evidenced thereby or with respect of any sinking fund payment required pursuant to the terms of a Security issued under this Indenture and all demands whatsoever, whatsoever and covenants that this Guarantee will not be discharged except by complete performance of all obligations contained in the Securities of such series and this Indenture as it relates to such series of Securities. Each Guarantee is a guaranty of payment and not of collection. The obligations of any Guarantor under this Guarantee will constitute direct, unsecured and unsubordinated obligations of such Guarantor and any Guarantor undertakes that its obligations hereunder will rank pari passu with all other present or future direct, unsecured and unsubordinated obligations of the Guarantor, save for such obligations as may be mandatorily preferred by law.
(c) Any such Guarantee will be a guarantee of payment and not merely of collection and it shall continue in full force and effect by way of continuing security until all principal, premium, if any, and interest, if any, (including any Additional Amounts required to be paid in accordance with the terms and conditions of the series of Securities so guaranteed) have been paid in full and all other actual or contingent obligations of the Operating Partnership in relation to the series of Securities so guaranteed or under the Indenture have been satisfied in full. Notwithstanding the foregoing, if any payment received by any Holder is, on the subsequent bankruptcy or insolvency of the Operating Partnership, avoided under any applicable laws, including, among others, laws relating to bankruptcy or insolvency, such payment will not be considered as having discharged or diminished the liability of any Guarantor and any such Guarantee will continue to apply as if such payment had at all times remained owing by the Operating Partnership.
(d) If any Holder of Securities of a series or the Trustee is required by any court or otherwise to return to any of the Operating Partnership or a Guarantor with respect to Securities of that series, or any Security except custodian, trustee, or similar official acting in relation to any of the Operating Partnership or a Guarantor, any amount paid by any of the Operating Partnership or a Guarantor to the Trustee or such Holder with respect to Securities of that series, the Guarantee with respect to Securities of that series, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders of Securities of a series in respect of any obligations guaranteed hereby until payment in full of the principal thereof and any premium and interest or Additional Amounts thereon or as provided in Article IV, Section 802 or Article XIVall obligations of Securities of such series. The Each Guarantor further agrees that, as between the GuarantorGuarantors, on the one hand, and the Holders and the Trustee, on the other hand, (i) the Maturity maturity of the obligations guaranteed hereby may be accelerated as provided in Article V hereof Section 502 for the purposes of this a Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect as to the Operating Partnership of the obligations guaranteed hereby. This Guarantee shall continue so guaranteed, and (ii) in the event of any declaration of acceleration of those obligations as provided in Section 502, those obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors with respect to be effective or be reinstated, as the case may be, if at any time payment on any Company Security, in whole or in part, is rescinded or must otherwise be restored to the Company or the Guarantor upon the bankruptcy, liquidation or reorganization Securities of a series for purposes of the Company Guarantee.
(e) Each Guarantor and by its acceptance of a Security issued hereunder each Holder hereby confirms that it is the intention of all such parties that the Guarantee by each Guarantor set forth in Section 1601(a) not constitute a fraudulent transfer or otherwiseconveyance for purpose of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. The Guarantor hereby waivesTo effectuate the foregoing intention, in favor of the Holders and all Guarantors hereby irrevocably agree that the Trustee, any and all of its rights, protections, privileges and defenses provided by any applicable law to a guarantor and waives any right of set-off which the Guarantor may have against the Holder of a Security in respect of any amounts which are or may become payable by the Holder of a Security to the Company. The Guarantor shall be subrogated to all rights obligations of each Holder of Securities against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; PROVIDED, HOWEVER, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and any premium and interest on all the Securities of the same series and of like tenor shall have been paid in full. The Guarantee shall be governed by and construed in accordance with the laws of the State of New York. The Guarantor agrees to pay any and all costs and expenses (including reasonable attorneys' fees and expenses) incurred by the Trustee or any Holders in enforcing any rights under the Guaranty. No past, present or future stockholder, officer, director, employee or incorporator of the Guarantor shall have any personal liability Guarantors under the Guarantee set forth in this Section 1601 by reason 1601(a) shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of his such Guarantor, and after giving effect to any collections from or its status as such stockholder, officer, director, employee or incorporator. The Guarantee set forth in this Section 1601 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 payments made by or on behalf of any other Guarantor in respect of the Trusteeobligations of such other Guarantor under its Guarantee or pursuant to the next succeeding sentence, result in the obligations of such Guarantor under such Guarantee not constituting such a fraudulent transfer or conveyance. Each Guarantor that makes any payment or distribution under Section 1601(a) shall be entitled to a contribution from each other Guarantor equal to its Pro Rata Portion of such payment or distribution. For purposes of the foregoing, the “Pro Rata Portion” of any Guarantor means the percentage of net assets of all Guarantors held by such Guarantor, determined in accordance with GAAP.
(f) It is the intention of the parties that the obligations of the Guarantors shall be in, but not in excess of, the maximum amount permitted by applicable law. Accordingly, if the obligations in respect of the Guarantee would be annulled, avoided or subordinated to the creditors of any Guarantor by a court of competent jurisdiction in a proceeding actually pending before such court as a result of a determination both that such Guarantee was made without fair consideration and, immediately after giving effect thereto, such Guarantor was insolvent or unable to pay its debts as they mature or left with an unreasonably small capital, then the obligations of such Guarantor under such Guarantee shall be reduced by such court if and to the extent such reduction would result in the avoidance of such annulment, avoidance or subordination; provided, however, that any reduction pursuant to this paragraph shall be made in the smallest amount as is strictly necessary to reach such result. For purposes of this paragraph, “fair consideration,” “insolvency,” “unable to pay its debts as they mature,” “unreasonably small capital” and the effective times of reductions, if any, required by this paragraph shall be determined in accordance with applicable law.
(g) If the obligations of any Guarantor are reduced pursuant to Section 1601(e) or 1601(f) above, such reduction shall be applied proportionately with respect to all Securities (of whatever series) guaranteed under Section 1601, in accordance with the respective outstanding principal amount of such Securities so guaranteed (or, if any Securities are Original Issue Discount Securities, the accreted value of such Securities) and being then due upon the acceleration of the payment of such Securities.
Appears in 1 contract
Samples: Indenture (Rhino Equity LLC)
Guarantee of Securities. SECTION 1601 GUARANTEE. This Section 1601 and Section 1602 apply to the Securities of any series to the extent that the form of the Guarantee to be endorsed on such Securities is not otherwise specifically established as contemplated by Section 301. The Guarantor hereby unconditionally and irrevocably guarantees to each Holder of a Security of each series authenticated and delivered by the Trustee the due and punctual payment of the principal of (including any amount due in respect of original issue discountand premium, if any) of and any premium and interest on and Additional Amounts with respect to such Security, and the due and punctual payment of any sinking fund payments provided for pursuant to the terms of such Security, when and as the same shall become due and payable, whether at the Stated Maturity, by maturity or upon redemption or upon declaration of acceleration, call for redemption acceleration or otherwise, in accordance with according to the terms of such Security and of this Indenture. The Guarantor agrees that in case of default by the Company in the payment of any such principal (premium, if any) or interest, the Guarantor shall duly and punctually pay the same. The Guarantee set forth in this Section 311 is a guarantee of payment and not of collection. The Guarantor hereby agrees that its obligations hereunder shall be as if it were a principal debtor and not merely a surety, and shall be absolute and unconditionalunconditional irrespective of any extension of the time for payment of any such Security, irrespective of, and shall be unaffected byany modification of any such Security, any invalidity, irregularity or unenforceability of any such Security of any series or this Indenture, any failure to enforce the provisions of any Security of any series same or this Indenture, any waiver, modification, consent or indulgence granted to the Company with respect thereto, thereto by the Holder of any such Security of any series or the Trustee, recovery of judgment against the Company or any other circumstances which may otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a demand or proceeding first against the Company, the benefit of discussion, protest or notice with respect to any such Security or the indebtedness evidenced thereby or with respect of any sinking fund payment required pursuant to the terms of a Security issued under this Indenture and all demands whatsoever, and covenants that this Guarantee will not be discharged with respect as to any such Security except by payment in full of the principal thereof of (and any premium premium, if any) and interest or Additional Amounts thereon or as provided in Article IV, Section 802 or Article XIV. The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, the Maturity of the obligations guaranteed hereby may be accelerated as provided in Article V hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby. This Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment on any Company Security, in whole or in part, is rescinded or must otherwise be restored to the Company or the Guarantor upon the bankruptcy, liquidation or reorganization of the Company or otherwise. The Guarantor hereby waives, in favor of the Holders and the Trustee, any and all of its rights, protections, privileges and defenses provided by any applicable law to a guarantor and waives any right of set-off which the Guarantor may have against the Holder of a Security in respect of any amounts which are or may become payable by the Holder of a Security to the Company. The Guarantor shall be subrogated to all rights of each Holder of Securities the Holders against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of the Guarantee or this GuaranteeIndenture; PROVIDEDprovided, HOWEVERhowever, that the Guarantor shall not hereby waives any and all rights to which it may be entitled entitled, by operation of law or otherwise, upon making any payment hereunder (i) to enforcebe subrogated to the rights of a Holder against the Company with respect to such payment or otherwise to be reimbursed, indemnified or exonerated by the Company in respect thereof or (ii) to receive any payments arising out payment in the nature of contribution or based uponfor any other reason, from any other obligor with respect to such right of subrogation payment, in each case, until the principal of (and any premium premium, if any) and interest on all the Securities of the same series and of like tenor issued hereunder shall have been paid in full. The Guarantee shall be governed Guarantor, and by and construed in accordance with its acceptance hereof each Holder, hereby confirms that it is the laws intention of all such parties that the Guarantees not constitute a fraudulent transfer or conveyance for the purposes of title 11 of the State of New York. The Guarantor agrees to pay any and all costs and expenses (including reasonable attorneys' fees and expenses) incurred by United States Code, the Trustee Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any other applicable federal, state or foreign law similar to any of the foregoing. To effectuate the foregoing intention, the Holders in enforcing any rights under and the Guaranty. No past, present or future stockholder, officer, director, employee or incorporator Guarantor hereby irrevocably agree that the obligations of the Guarantor under this Section 311 shall have any personal liability be limited to such maximum amount as will, after giving effect to all other contingent and fixed liabilities of the Guarantor, result in the obligations of the Guarantor under the Guarantee set forth in this Section 1601 by reason of his Guarantees not constituting a fraudulent transfer or its status as such stockholder, officer, director, employee conveyance under applicable federal or incorporatorstate law. The Guarantee set forth in this Section 1601 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 or on behalf of the Trustee.
Appears in 1 contract
Samples: Indenture (CTR Manufacturing Inc)
Guarantee of Securities. SECTION 1601 GUARANTEE. This Section 1601 and Section 1602 apply Guarantee.
(a) Each Person who may become a “Guarantor” with respect to the Securities of any series of Securities to the extent that the form of the Guarantee to be endorsed on such Securities which this Article Sixteen is not otherwise specifically established as contemplated by Section 301. The Guarantor hereby made applicable, irrevocably and unconditionally guarantees (the “Guarantee”) to each Holder of a Security of each such series authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities of such series, the obligations of the Operating Partnership under this Indenture or the Securities of such series or irrespective of restrictions of any kind on the Operating Partnership’s performance of its obligations under the Securities, and waiving all rights of objection and defense arising from the Securities, that: (i) the principal of and premium, if any, and interest on the Securities of such series will be paid in full when due, whether at the Stated Maturity or Interest Payment Date, by acceleration, call for redemption, or otherwise; (ii) all other obligations of the Operating Partnership to the Holders of such series or the Trustee under this Indenture or the Securities of such series will be promptly paid in full, all in accordance with the terms of this Indenture and the Securities of such series; and (iii) in case of any extension of time of payment or renewal of any Securities of such series or any of such other obligations thereunder, they will be paid in full when due and punctual in accordance with the terms of the extension or renewal, whether at the Stated Maturity or Interest Payment Date, by acceleration, call for redemption, or otherwise. Failing payment when due of any amount so guaranteed for whatever reason, each Guarantor shall be obligated to pay the same before failure so to pay becomes an Event of Default with respect to Securities of any series. If the Operating Partnership defaults in the payment of the principal (including any amount due in respect of original issue discount) of and any premium and or premium, if any, or interest on and Additional Amounts with respect to such Security, and the due and punctual payment Securities of any sinking fund payments provided for pursuant to the terms of such Security, a series so guaranteed when and as the same shall become due and payabledue, whether at the Stated MaturityMaturity or Interest Payment Date, by declaration of acceleration, call for redemption redemption, or otherwise, without the necessity of action by the Trustee or any Holder, each Guarantor with respect to such series shall be required to promptly make such payment in accordance with the terms of such Security and of this Indenturefull. The obligations of all Guarantors under this Article Sixteen shall be joint and several.
(b) Each Guarantor hereby agrees with respect to Securities of any series that its obligations hereunder with regard to this Guarantee shall be as if it were a principal debtor and not merely a surety, as surety and shall be absolute full, irrevocable and unconditional, irrespective ofof the validity, and shall be unaffected by, any invalidity, irregularity regularity or unenforceability enforceability of any Security the Securities of any such series or this Indenture, the absence of any failure action to enforce the provisions same, any delays in obtaining or realizing upon or failures to obtain or realize upon collateral, the recovery of any Security of any series or this Indenturejudgment against the Operating Partnership, any waiver, modification, consent or indulgence granted action to enforce the Company with respect thereto, by the Holder of any Security of any series or the Trustee, same or any other circumstances which may that might otherwise constitute a legal or equitable discharge or defense of a surety or a guarantor. The Each Guarantor with respect to Securities of any series hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger insolvency or bankruptcy of the CompanyOperating Partnership, any right to require a proceeding first against the CompanyOperating Partnership or right to require the prior disposition of the assets of the Operating Partnership to meet its obligations, the benefit of discussionprotest, protest or notice with respect to any Security or the indebtedness evidenced thereby or with respect of any sinking fund payment required pursuant to the terms of a Security issued under this Indenture and all demands whatsoever, whatsoever and covenants that this Guarantee will not be discharged except by complete performance of all obligations contained in the Securities of such series and this Indenture as it relates to such series of Securities. The obligations of any Guarantor under this Guarantee will constitute direct, unsecured and unsubordinated obligations of such Guarantor and any Guarantor undertakes that its obligations hereunder will rank pari passu with all other present or future direct, unsecured and unsubordinated obligations of the Guarantor, save for such obligations as may be mandatorily preferred by law.
(c) Any such Guarantee will be a guarantee of payment and not merely of collection and it shall continue in full force and effect by way of continuing security until all principal, premium, if any, and interest, if any (including any Additional Amounts required to be paid in accordance with the terms and conditions of the series of Securities so guaranteed), have been paid in full and all other actual or contingent obligations of the Operating Partnership in relation to the series of Securities so guaranteed or under the Indenture have been satisfied in full. Notwithstanding the foregoing, if any payment received by any Holder is, on the subsequent bankruptcy or insolvency of the Operating Partnership, avoided under any applicable laws, including, among others, laws relating to bankruptcy or insolvency, such payment will not be considered as having discharged or diminished the liability of any Guarantor and any such Guarantee will continue to apply as if such payment had at all times remained owing by the Operating Partnership.
(d) If any Holder of Securities of a series or the Trustee is required by any court or otherwise to return to any of the Operating Partnership or a Guarantor with respect to Securities of that series, or any Security except custodian, trustee, or similar official acting in relation to any of the Operating Partnership or a Guarantor, any amount paid by any of the Operating Partnership or a Guarantor to the Trustee or such Holder with respect to Securities of that series, the Guarantee with respect to Securities of that series, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders of Securities of a series in respect of any obligations guaranteed hereby until payment in full of the principal thereof and any premium and interest or Additional Amounts thereon or as provided in Article IV, Section 802 or Article XIVall obligations of Securities of such series. The Each Guarantor further agrees that, as between the GuarantorGuarantors, on the one hand, and the Holders and the Trustee, on the other hand, (i) the Maturity maturity of the obligations guaranteed hereby may be accelerated as provided in Article V hereof Section 502 for the purposes of this a Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect as to the Operating Partnership of the obligations guaranteed hereby. This Guarantee shall continue so guaranteed, and (ii) in the event of any declaration of acceleration of those obligations as provided in Section 502, those obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors with respect to be effective or be reinstated, as the case may be, if at any time payment on any Company Security, in whole or in part, is rescinded or must otherwise be restored to the Company or the Guarantor upon the bankruptcy, liquidation or reorganization Securities of a series for purposes of the Company Guarantee.
(e) Each Guarantor and by its acceptance of a Security issued hereunder each Holder hereby confirms that it is the intention of all such parties that the Guarantee by each Guarantor set forth in Section 1601(a) not constitute a fraudulent transfer or otherwiseconveyance for purpose of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. The Guarantor hereby waivesTo effectuate the foregoing intention, in favor of the Holders and all Guarantors hereby irrevocably agree that the Trustee, any and all of its rights, protections, privileges and defenses provided by any applicable law to a guarantor and waives any right of set-off which the Guarantor may have against the Holder of a Security in respect of any amounts which are or may become payable by the Holder of a Security to the Company. The Guarantor shall be subrogated to all rights obligations of each Holder of Securities against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; PROVIDED, HOWEVER, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and any premium and interest on all the Securities of the same series and of like tenor shall have been paid in full. The Guarantee shall be governed by and construed in accordance with the laws of the State of New York. The Guarantor agrees to pay any and all costs and expenses (including reasonable attorneys' fees and expenses) incurred by the Trustee or any Holders in enforcing any rights under the Guaranty. No past, present or future stockholder, officer, director, employee or incorporator of the Guarantor shall have any personal liability Guarantors under the Guarantee set forth in this Section 1601 by reason 1601(a) shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of his such Guarantor, and after giving effect to any collections from or its status as such stockholder, officer, director, employee or incorporator. The Guarantee set forth in this Section 1601 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 payments made by or on behalf of any other Guarantor in respect of the Trusteeobligations of such other Guarantor under its Guarantee or pursuant to the next succeeding sentence, result in the obligations of such Guarantor under such Guarantee not constituting such a fraudulent transfer or conveyance. Each Guarantor that makes any payment or distribution under Section 1601(a) shall be entitled to a contribution from each other Guarantor equal to its Pro Rata Portion of such payment or distribution. For purposes of the foregoing, the “Pro Rata Portion” of any Guarantor means the percentage of net assets of all Guarantors held by such Guarantor, determined in accordance with GAAP.
(f) It is the intention of the parties that the obligations of the Guarantors shall be in, but not in excess of, the maximum amount permitted by applicable law. Accordingly, if the obligations in respect of the Guarantee would be annulled, avoided or subordinated to the creditors of any Guarantor by a court of competent jurisdiction in a proceeding actually pending before such court as a result of a determination both that such Guarantee was made without fair consideration and, immediately after giving effect thereto, such Guarantor was insolvent or unable to pay its debts as they mature or left with an unreasonably small capital, then the obligations of such Guarantor under such Guarantee shall be reduced by such court if and to the extent such reduction would result in the avoidance of such annulment, avoidance or subordination; provided, however, that any reduction pursuant to this paragraph shall be made in the smallest amount as is strictly necessary to reach such result. For purposes of this paragraph, “fair consideration,” “insolvency,” “unable to pay its debts as they mature,” “unreasonably small capital” and the effective times of reductions, if any, required by this paragraph shall be determined in accordance with applicable law.
(g) If the obligations of any Guarantor are reduced pursuant to Section 1601(e) or 1601(f) above, such reduction shall be applied proportionately with respect to all Securities (of whatever series) guaranteed under Section 1601, in accordance with the respective outstanding principal amount of such Securities so guaranteed (or, if any Securities are Original Issue Discount Securities, the accreted value of such Securities) and being then due upon the acceleration of the payment of such Securities.
Appears in 1 contract
Guarantee of Securities. SECTION 1601 GUARANTEE. This Section 1601 and Section 1602 apply 1401 Guarantee.
(1) Subject to the Securities provisions of any series to this Article Fourteen, the extent that the form of the Guarantee to be endorsed on such Securities is not otherwise specifically established as contemplated by Section 301. The Parent Guarantor hereby fully and unconditionally guarantees to each Holder of a Security of each series authenticated and delivered by the Trustee and to the due Trustee and punctual payment of its successors and assigns that: the principal of, premium thereon (including any amount due in respect of original issue discountif any) of and any premium and interest on and Additional Amounts with respect each series of Securities will be promptly paid in full when due, subject to such Security, and the due and punctual payment of any sinking fund payments provided for pursuant to the terms of such Security, when and as the same shall become due and payableapplicable grace period, whether at the Stated Maturitymaturity, by declaration of acceleration, call for redemption acceleration or otherwise, and interest on any overdue principal and interest on any overdue interest on each series of Securities and all other obligations of the Company to the Holders or the Trustee under this Indenture or such series of Securities will be promptly paid in full or performed, all in accordance with the terms of such Security hereof and of this Indenturethereof. The Parent Guarantor hereby agrees that its obligations hereunder shall be as if it were a principal debtor and not merely a surety, and shall be absolute and unconditional, irrespective ofof the validity, and shall be unaffected byregularity or enforceability of this Indenture or any series of Securities, any invalidity, irregularity or unenforceability the absence of any Security of any series or this Indenture, any failure action to enforce the same, any waiver or consent by any Holder or the Trustee with respect to any provisions of this Indenture or any Security series of Securities, the recovery of any series or this Indenturejudgment against the Company, any waiver, modification, consent or indulgence granted action to enforce the Company with respect thereto, by the Holder of any Security of any series or the Trustee, same or any other circumstances circumstance which may might otherwise constitute a legal or equitable discharge or defense of a surety or guarantorthe Parent Guarantor. The Parent Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, the benefit of discussionprotest, protest or notice with respect to any Security or the indebtedness evidenced thereby or with respect of any sinking fund payment required pursuant to the terms of a Security issued under this Indenture and all demands whatsoever, whatsoever and covenants that this the Guarantee will not be discharged with respect to any Security except by payment in full of the principal thereof and any premium and interest or Additional Amounts thereon or as provided in Article IV, Section 802 or Article XIV. The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, the Maturity complete performance of the obligations guaranteed hereby may be accelerated as provided contained in Article V hereof for the purposes this Indenture and each series of this Guarantee, notwithstanding Securities. If any stay, injunction Holder or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby. This Guarantee shall continue Trustee is required by any court or otherwise to be effective or be reinstated, as the case may be, if at any time payment on any Company Security, in whole or in part, is rescinded or must otherwise be restored return to the Company or the Parent Guarantor upon the bankruptcyor any custodian, liquidation trustee, liquidator or reorganization of other similar official acting in relation to the Company or otherwise. the Parent Guarantor, any amount paid by the Company or the Parent Guarantor to the Trustee or such Holder, the Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(2) The Parent Guarantor hereby waivesagrees that any claim against the Company that arises from the payment, in favor performance or enforcement of the Holders and Parent Guarantor’s obligations under the TrusteeGuarantee or this Indenture, any and all of its rightsincluding, protectionswithout limitation, privileges and defenses provided by any applicable law to a guarantor and waives any right of set-off which subrogation, shall be subject and subordinate to, and no payment with respect to any such claim of the Guarantor may have against the Holder of a Security in respect of any amounts which are or may become payable by the Holder of a Security to the Company. The Parent Guarantor shall be subrogated to made before, the payment in full in cash of all rights outstanding Securities of each Holder of Securities against the Company series in respect of any amounts paid to such Holder by the Guarantor pursuant to accordance with the provisions of provided therefor in this Guarantee; PROVIDED, HOWEVER, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and any premium and interest on all the Securities of the same series and of like tenor shall have been paid in full. Indenture.
(3) The Guarantee shall be governed evidenced solely by the execution and construed in accordance with the laws delivery of this Indenture and no notation of the State of New YorkGuarantee need be endorsed on any Security. The Parent Guarantor hereby agrees to pay any and all costs and expenses (including reasonable attorneys' fees and expenses) incurred by the Trustee or any Holders in enforcing any rights under the Guaranty. No past, present or future stockholder, officer, director, employee or incorporator of the Guarantor shall have any personal liability under that the Guarantee set forth in this Section 1601 by reason 1401 shall remain in full force and effect notwithstanding the absence of his or its status as the endorsement of any notation of such stockholderGuarantee on any Security. This instrument may be executed in any number of counterparts, officereach of which so executed shall be deemed to be an original, director, employee or incorporatorbut all such counterparts shall together constitute but one and the same instrument. The Guarantee set forth exchange of copies of this Indenture and of signature pages by electronic or .pdf transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in this Section 1601 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 or on behalf lieu of the Trustee.original Indenture for all purposes. Signatures of the parties hereto transmitted by electronic or .pdf transmission shall be deemed to be their original signatures for all purposes. [Signature page follows]
Appears in 1 contract
Guarantee of Securities. SECTION 1601 GUARANTEE. This Section 1601 and Section 1602 apply to the Securities of any series to the extent that the form of the Guarantee to be endorsed on such Securities is not otherwise specifically established as contemplated by Section 301. (a) The Guarantor hereby unconditionally and irrevocably guarantees to each Holder of a Security of each series authenticated and delivered by the Trustee the due and punctual payment of the principal of and interest (including any amount due in respect of original issue discountAdditional Amounts, if any) of and any premium and interest on and Additional Amounts with respect to such Security, and the due and punctual payment of any sinking fund payments provided for pursuant to the terms of such SecuritySecurities, when and as the same shall become due and payable, whether at the Stated Maturity, by maturity or upon redemption or upon declaration of acceleration, call for redemption acceleration or otherwise, in accordance with according to the terms of such Security Securities and of this Indenture. The Guarantor agrees that in case of default by the Company in the payment of any such principal or interest (including Additional Amounts, if any), the Guarantor shall duly and punctually pay the same. The Guarantee set forth in this Section 2.5 is a Guarantee of payment and not of collection. The Guarantor hereby agrees that its obligations hereunder shall be as if it were a principal debtor and not merely a surety, and shall be absolute and unconditionalunconditional irrespective of any extension of the time for payment of any such Securities, irrespective of, and shall be unaffected byany modification of any such Security, any invalidity, irregularity or unenforceability of any Security of any series such Securities or this Indenture, any failure to enforce the provisions of any Security of any series same or this Indenture, any waiver, modification, consent or indulgence granted to the Company with respect thereto, thereto by the Holder of any such Security of any series or the Trustee, Trustee or any other circumstances which may otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a demand or proceeding first against the Company, the benefit of discussion, protest or notice with respect to any such Security or the indebtedness evidenced thereby or with respect of any sinking fund payment required pursuant to the terms of a Security issued under this Indenture and all demands whatsoever, and covenants that this Guarantee will not be discharged with respect as to any such Security except by payment in full of the principal thereof and any premium of and interest or (including Additional Amounts thereon or as provided in Article IV, Section 802 or Article XIV. The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, the Maturity of the obligations guaranteed hereby may be accelerated as provided in Article V hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby. This Guarantee shall continue to be effective or be reinstated, as the case may beAmounts, if at any time payment any) on any Company such Security, in whole or in part, is rescinded or must otherwise be restored to the Company or the Guarantor upon the bankruptcy, liquidation or reorganization of the Company or otherwise. The Guarantor hereby waives, in favor of the Holders and the Trustee, any and all of its rights, protections, privileges and defenses provided by any applicable law to a guarantor and waives any right of set-off which the Guarantor may have against the Holder of a Security in respect of any amounts which are or may become payable by the Holder of a Security to the Company. The Guarantor shall be subrogated to all rights of each Holder of Securities the Holders against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of the Guarantee or this GuaranteeIndenture; PROVIDEDprovided, HOWEVERhowever, that the Guarantor shall not hereby waives any and all rights to which it may be entitled entitled, by operation of law or otherwise, upon making any payment hereunder (i) to enforcebe subrogated to the rights of a Holder against the Company with respect to such payment or otherwise to be reimbursed, indemnified or exonerated by the Company in respect thereof or (ii) to receive any payments arising out payment in the nature of contribution or based uponfor any other reason, from any other obligor with respect to such right of subrogation payment, in each case, until the principal of and any premium and interest (including Additional Amounts, if any) on all the Securities of the same series and of like tenor issued hereunder shall have been paid in full. The Guarantee shall be governed Guarantor, and by and construed in accordance with its acceptance hereof each Holder, hereby confirms that it is the laws intention of all such parties that the Guarantees not constitute a fraudulent transfer of conveyance for the purposes of title 11 of the State of New York. The Guarantor agrees to pay any and all costs and expenses (including reasonable attorneys' fees and expenses) incurred by United States Code, the Trustee Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any other applicable federal, state or foreign law similar to any of the foregoing. To effectuate the foregoing intention, the Holders in enforcing any rights under and the Guaranty. No past, present or future stockholder, officer, director, employee or incorporator Guarantor hereby irrevocably agree that the obligations of the Guarantor under this Section 2.5 shall have any personal liability be limited to such maximum amount as will, after giving effect to all other contingent and fixed liabilities of the Guarantor, result in the obligations of the Guarantor under the Guarantee set forth in this Section 1601 by reason of his Guarantees not constituting a fraudulent transfer or its status as such stockholder, officer, director, employee conveyance under applicable federal or incorporatorstate law. The Guarantee set forth in this Section 1601 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 or on behalf of the Trustee.
(b) For so long as any Securities are outstanding and subject to Section 12.9, the Guarantor will guarantee the delivery of the ADRs issuable upon conversion of the Securities pursuant to Article 12 hereunder.
Appears in 1 contract
