Guarantees, etc To endorse or guarantee the payment of any notes or other obligations of any person; to make contracts of guaranty or suretyship, or otherwise assume liability for payment thereof; and to mortgage and pledge the Trust property or any part thereof to secure any of or all such obligations;
Limitation on Issuances of Guarantees by Restricted Subsidiaries The Company will not permit any Restricted Subsidiary, directly or indirectly, to Guarantee any Indebtedness of the Company which is pari passu with or subordinate in right of payment to the Notes ("Guaranteed Indebtedness"), unless (i) such Restricted Subsidiary simultaneously executes and delivers a supplemental indenture to this Indenture providing for a Guarantee (a "Subsidiary Guarantee") of payment of the Notes by such Restricted Subsidiary and (ii) such Restricted Subsidiary waives and will not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against the Company or any other Restricted Subsidiary as a result of any payment by such Restricted Subsidiary under its Subsidiary Guarantee; provided that this paragraph shall not be applicable to any Guarantee of any Restricted Subsidiary that existed at the time such Person became a Restricted Subsidiary and was not Incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary. If the Guaranteed Indebtedness is (A) pari passu with the Notes, then the Guarantee of such Guaranteed Indebtedness shall be pari passu with, or subordinated to, the Subsidiary Guarantee or (B) subordinated to the Notes, then the Guarantee of such Guaranteed Indebtedness shall be subordinated to the Subsidiary Guarantee at least to the extent that the Guaranteed Indebtedness is subordinated to the Notes. Notwithstanding the foregoing, any Subsidiary Guarantee by a Restricted Subsidiary may provide by its terms that it shall be automatically and unconditionally released and discharged upon (i) any sale, exchange or transfer, to any Person not an Affiliate of the Company, of all of the Company's and each Restricted Subsidiary's Capital Stock in, or all or substantially all the assets of, such Restricted Subsidiary (which sale, exchange or transfer is not prohibited by this Indenture) or (ii) the release or discharge of the Guarantee which resulted in the creation of such Subsidiary Guarantee, except a discharge or release by or as a result of payment under such Guarantee.
Limitation on Guarantees of Indebtedness by Restricted Subsidiaries The Company shall not permit any of its Restricted Subsidiaries, other than a Guarantor or the Issuer, to guarantee the payment of any First Lien Obligations, including any Indebtedness (or any interest on such Indebtedness) under the Senior Credit Facilities, the NXP Notes and the Existing Secured Notes unless:
(1) such Restricted Subsidiary within 30 days executes and delivers a supplemental indenture to this Indenture, the form of which is attached as Exhibit D hereto, providing for a Guarantee by such Restricted Subsidiary, except that with respect to a guarantee of Indebtedness of the Issuer or any Guarantor, if such Indebtedness is by its express terms subordinated in right of payment to the Notes or such Guarantor’s Guarantee, any such guarantee by such Restricted Subsidiary with respect to such Indebtedness shall be subordinated in right of payment to such Guarantee substantially to the same extent as such Indebtedness is subordinated to the Notes;
(2) such Restricted Subsidiary waives and shall not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against any Guarantor or any other Restricted Subsidiary as a result of any payment by such Person under its Guarantee or otherwise; and
(3) such Restricted Subsidiary shall deliver to the Trustee an Opinion of Counsel to the effect that:
(A) such Guarantee has been duly executed and authorized; and
(B) such Guarantee constitutes a valid, binding and enforceable obligation of such Restricted Subsidiary, except insofar as enforcement thereof may be limited by bankruptcy, insolvency or similar laws (including, without limitation, all laws relating to fraudulent transfers) and except insofar as enforcement thereof is subject to general principles of equity.
The Guarantees Each (a) Guarantor, jointly and severally with each other Guarantor, hereby guarantees as primary obligor and not as surety to each Secured Party and its successors and assigns the prompt payment and performance in full when due (whether at stated maturity, by acceleration, demand or otherwise) of the principal of and interest (including any interest, fees, costs or charges that would accrue but for the provisions of the Bankruptcy Code after any bankruptcy or insolvency petition under the Bankruptcy Code) on the Loans made by the Lenders to, and the Notes held by each Lender of, Borrower, and (b) Credit Party, jointly and severally with each other Credit Party, hereby guarantees as primary obligor and not as surety to each Secured Party and its successors and assigns the prompt payment and performance in full when due (whether at stated maturity, by acceleration or otherwise) of the principal of and interest (including any interest, fees, costs or charges that would accrue but for the provisions of the Bankruptcy Code after any bankruptcy or insolvency petition under the Bankruptcy Code) of all other Obligations from time to time owing to the Secured Parties by any other Credit Party under any Credit Document, any Swap Contract entered into with a Swap Provider or any Cash Management Agreement entered into with a Cash Management Bank, in each case now or hereinafter created, incurred or made, whether absolute or contingent, liquidated or unliquidated and strictly in accordance with the terms thereof; provided, that (i) the obligations guaranteed shall exclude obligations under any Swap Contract or Cash Management Agreements with respect to which the applicable Swap Provider or Cash Management Bank, as applicable, provides notice to Borrower that it does not want such Swap Contract or Cash Management Agreement, as applicable, to be secured, and (ii) as to each Guarantor the obligations guaranteed by such Guarantor hereunder shall not include any Excluded Swap Obligations in respect of such Guarantor (such obligations being guaranteed pursuant to clauses (a) and (b) above being herein collectively called the “Guaranteed Obligations” (it being understood that the Guaranteed Obligations of Borrower shall be limited to those referred to in clause (b) above)). Each Credit Party, jointly and severally with each other Credit Party, hereby agrees that if any other Credit Party shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, such Credit Party will promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
Covenant to Guarantee Obligations and Give Security Upon (i) the formation or acquisition by any Loan Party of any new direct or indirect Subsidiary (other than any Excluded Subsidiary), (ii) pursuant to Section 1.09, the addition of any Borrower which was not a Loan Party immediately prior to such addition, (iii) a Subsidiary of any Loan Party ceasing to be an Excluded Subsidiary or (iv) the acquisition by any Loan Party of any asset (including real property) in respect of which the Collateral and Guaranty Requirements have not theretofore been satisfied (any of the foregoing items set forth in clauses (i) through (iv), a “Collateral and Guaranty Compliance Event”) the Borrowers shall, at the Borrowers’ expense, cause the Collateral and Guaranty Requirements applicable thereto to be satisfied (x) with respect to (i) any Guaranty Agreement or any supplement thereto, (ii) Liens on Collateral that may be created by the execution and delivery of a customary personal property security or pledge agreement or any supplement thereto, (iii) Liens on Collateral that may under applicable law be perfected by the filing of financing statements under the UCC or by filings with the United States Patent and Trademark Office, the United Stated Copyright Office (or by the making of similar filings in any applicable jurisdiction) and (iv) the perfection of security interests in the capital stock of Holding’s Subsidiaries with respect to which a Lien may be perfected by delivery of certificated securities, within thirty (30) days (as such time may be extended by the Administrative Agent in its reasonable discretion) of such Collateral and Guaranty Compliance Event and (y) with respect to the creation or perfection of Liens on any other Collateral or any other provision of the Collateral and Guaranty Requirements, within sixty (60) days of such Collateral and Guaranty Compliance Event (or, in the case of clause (h) and (i) (and, to the extent related to such clauses, clause (l) and (m)) of the definition of Collateral and Guaranty Requirements, within ninety (90) days of such Collateral and Guaranty Compliance Event) (as any such time period may be extended by the Administrative Agent in its reasonable discretion). Notwithstanding anything to the contrary in any Loan Document, no Subsidiary of Holdings listed on Schedule 6.11 shall be required to satisfy the Collateral and Guaranty Requirements prior to the date that is ninety (90) days after the Third Restatement Date (on which date (or such later date as the Administrative Agent may agree) the Collateral and Guaranty Requirements shall be required with respect to such Subsidiaries to the same extent otherwise applicable thereto).
Limitations on Guarantees The obligations of each Guarantor under its Guarantee are limited to the maximum amount which, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee or pursuant to its contribution obligations under this Indenture, will result in the obligations of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law.
Limitation on Guarantees (a) In addition to the restrictions set forth in Section 3.2(b), the Company shall not permit any of its Domestic Subsidiaries that are Restricted Subsidiaries, other than a Guarantor, a Foreign Subsidiary, a Captive Insurance Subsidiary or a Securitization Subsidiary, to Guarantee the payment of (i) any syndicated Credit Facility permitted under Section 3.2(b)(1) or (ii) capital markets debt securities of the Company or any other Guarantor unless:
(1) such Restricted Subsidiary within 60 days executes and delivers a supplemental indenture to this Indenture providing for a Guarantee by such Restricted Subsidiary, except that with respect to a guarantee of Indebtedness of the Company or any Guarantor, if such Indebtedness is by its express terms subordinated in right of payment to the Notes or such Guarantor’s Guarantee, any such guarantee by such Restricted Subsidiary with respect to such Indebtedness shall be subordinated in right of payment to such Guarantee substantially to the same extent as such Indebtedness is subordinated to the Notes or such Guarantor’s Guarantee of the Notes; and
(2) such Restricted Subsidiary waives and will not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against the Company or any other Restricted Subsidiary as a result of any payment by such Restricted Subsidiary under its Guarantee until payment in full of Obligations under this Indenture. provided that this Section 3.7 shall not be applicable to any guarantee of any Restricted Subsidiary that existed at the time such Person became a Restricted Subsidiary and was not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary.
(b) The Company may elect, in its sole discretion, to cause or allow, as the case may be, any Subsidiary that is not otherwise required to be a Guarantor to become a Guarantor, in which case, such Subsidiary shall not be required to comply with the 60-day period described in Section 3.7(a) and such Guarantee may be released at any time in the Company’s sole discretion so long as any Indebtedness of such Subsidiary then outstanding could have been incurred by such Subsidiary (either (x) when so incurred or (y) at the time of the release of such Guarantee) assuming such Subsidiary were not a Guarantor at such time.
(c) If any Guarantor becomes an Immaterial Subsidiary, the Company shall have the right, by execution and delivery of a supplemental indenture to the Trustee, to cause such Immaterial Subsidiary to cease to be a Guarantor, subject to the requirement described in Section 3.7(a) above that such Subsidiary shall be required to become a Guarantor if it ceases to be an Immaterial Subsidiary (except that if such Subsidiary has been properly designated as an Unrestricted Subsidiary it shall not be so required to become a Guarantor or execute a supplemental indenture); provided, further, that such Immaterial Subsidiary shall not be permitted to Guarantee other Indebtedness of the Issuer or the other Guarantors, unless it again becomes a Guarantor.
Release of Liens and Guarantees A Subsidiary Loan Party (other than a Borrower) shall automatically be released from its obligations under the Loan Documents, and all security interests created by the Security Documents in Collateral owned by such Subsidiary Loan Party shall be automatically released, (1) upon the consummation of any transaction permitted by this Agreement as a result of which such Subsidiary Loan Party ceases to be a Restricted Subsidiary (including pursuant to a merger with a Subsidiary that is not a Loan Party or a designation as an Unrestricted Subsidiary) or (2) upon the request of the Borrower, in connection with a transaction permitted under this Agreement, as a result of which such Subsidiary Loan party ceases to be a wholly-owned Subsidiary. Upon any sale or other transfer by any Loan Party (other than to Holdings, the Parent Borrower, the Co-Borrower or any other Subsidiary Loan Party) of any Collateral in a transaction permitted under this Agreement, or upon the effectiveness of any written consent to the release of the security interest created under any Security Document in any Collateral or the release of any Loan Party from its Guarantee under the Guarantee Agreement pursuant to Section 9.02, the security interests in such Collateral created by the Security Documents or such guarantee shall be automatically released. Upon termination of the aggregate Commitments and payment in full of all Secured Obligations (other than contingent indemnification obligations) and the expiration or termination of all Letters of Credit including as a result of obtaining the consent of the applicable Issuing Bank as described in Section 9.05 of the Credit Agreement), all obligations under the Loan Documents and all security interests created by the Security Documents shall be automatically released. In connection with any termination or release pursuant to this Section, the Administrative Agent shall execute and deliver to any Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section shall be without recourse to or warranty by the Administrative Agent.
Limitation on Guarantee Obligations Create, incur, assume or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the Closing Date and listed in Schedule 8.4(a), and any refinancings, refundings, extensions or renewals thereof, provided that the amount of such Guarantee Obligation shall not be increased at the time of such refinancing, refunding, extension or renewal except to the extent that the amount of Indebtedness in respect of such Guarantee Obligations is permitted to be increased by subsection 8.2(o);
(b) Guarantee Obligations for performance, bid, appeal, judgment, replevin and similar bonds and suretyship arrangements, all in the ordinary course of business;
(c) Guarantee Obligations in respect of indemnification and contribution agreements expressly permitted by subsection 8.10(iv) or similar agreements by the Parent Borrower;
(d) Reimbursement Obligations in respect of the Letters of Credit or reimbursement obligations in respect of any other letters of credit permitted under subsection 8.2;
(e) Guarantee Obligations in respect of third-party loans and advances to officers or employees of Holdings or any of its Subsidiaries (i) for travel and entertainment expenses incurred in the ordinary course of business, (ii) for relocation expenses incurred in the ordinary course of business, or (iii) for other purposes in an aggregate amount so long as all Guarantee Obligations incurred under this paragraph (e), together with the aggregate amount of all Investments permitted under subsection 8.8(e) (other than clause (iv) thereof), does not exceed $5,000,000 outstanding at any time;
(f) obligations to insurers required in connection with worker’s compensation and other insurance coverage incurred in the ordinary course of business;
(g) obligations of the Parent Borrower and its Subsidiaries under any Interest Rate Protection Agreements (other than those entered into for speculative purposes) or under Permitted Hedging Arrangements;
(h) Guarantee Obligations incurred in connection with acquisitions permitted under subsection 8.9, provided that if any such Guarantee Obligation inures to the benefit of any Person other than the Person from whom such acquisition is made or any Affiliate thereof, such Guarantee Obligation shall not exceed, with respect to any such acquisition, 70% of the purchase price of such acquisition (including any Indebtedness assumed in connection with any such acquisition) (or such greater percentage as shall be reasonably satisfactory to the U.S. Administrative Agent or, if any such purchase price shall be greater than $75,000,000, such greater percentage shall be reasonably satisfactory to the Required Lenders);
(i) guarantees made by the Parent Borrower or any of its Subsidiaries of obligations of the Parent Borrower or any of its Subsidiaries (other than any Indebtedness outstanding pursuant to subsections 8.2(b), (c), (d), (j), (k) and (q)) which obligations are otherwise permitted under this Agreement;
(j) Guarantee Obligations in connection with sales or other dispositions permitted under subsection 8.6, including indemnification obligations with respect to leases, and guarantees of collectability in respect of accounts receivable or notes receivable for up to face value;
(k) Guarantee Obligations incurred pursuant to the U.S. Guarantee and Collateral Agreement or any Canadian Security Document or otherwise in respect of Indebtedness permitted by subsection 8.2(a);
(l) Guarantee Obligations in respect of Indebtedness permitted pursuant to subsections 8.2(b), (c) and (d), provided that (x) if any such Indebtedness is subordinated in right of payment to the obligations of any Loan Party hereunder and under the other Loan Documents, then any corresponding Guarantee Obligations are subordinated to Indebtedness outstanding pursuant to this Agreement and other Loan Documents to substantially the same extent, (y) Guarantee Obligations in respect of Indebtedness permitted pursuant to subsections 8.2(b) and 8.2(d) shall be permitted only so long as such Guarantee Obligations are incurred only by Guarantors or Borrowers and (z) Guarantee Obligations in respect of Assumed Indebtedness permitted pursuant to subsection 8.2(c) shall be permitted to the extent no additional guarantors of such Indebtedness are added following the Closing Date;
(m) accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Subsidiaries in the ordinary course of business;
(n) Guarantee Obligations in respect of Indebtedness or other obligations of a Person in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Subsidiaries, and as to all of such Persons does not at any time exceed $20,000,000 in aggregate principal amount; provided that such amount shall be reduced by the aggregate amount of Investments permitted by subsection 8.8(k); and
(o) Guarantee Obligations of the Parent Borrower and its Subsidiaries in respect of Indebtedness of Foreign Subsidiaries incurred pursuant to subsection 8.2(q); provided that the aggregate amount of such Guarantee Obligations outstanding pursuant to this clause (o), when aggregated with (i) all dividends made pursuant to paragraph 8.7(k), (ii) all Investments (determined as the amount originally advanced, loaned or otherwise invested, less any returns on the respective Investment) outstanding pursuant to paragraphs 8.8(k) and (o), (iii) all cash consideration paid in respect of acquisitions pursuant to paragraph 8.9(b)(iii) and (iv) all optional prepayments made pursuant to subsection 8.13(f) do not at any time exceed $100,000,000.
Loans and Guarantees No Obligor shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, grant any loan or credit or give any guarantee in any such case in respect of Financial Indebtedness, other than:
(a) any extension of trade credit or guarantees, bonds or indemnities granted in the ordinary course of business on usual and customary terms;
(b) any credit given by a member of the Bank Group to another member of the Bank Group which arises by reason of cash-pooling, set-off or other cash management arrangement of the Bank Group;
(c) the Existing Loans provided that the aggregate principal amount outstanding thereunder may not be increased from that existing at the Original Execution Date in reliance on this paragraph (c) (except with respect to accrual or capitalisation of interest);
(d) any loans or credit granted:
(i) by a member of the Bank Group to another member of the Bank Group;
(ii) by a member of the Bank Group to the relevant member of the Group for the purposes of funding drawings available under the undrawn portion of any Existing UKTV Group Loan Stock of up to £50 million in aggregate;
(iii) in accordance with Clause 25.9 (Joint Ventures); or
(iv) by a SSN Finance Subsidiary as contemplated in the definition of “SSN Finance Subsidiary” or the on-lending by the Parent to VMIH of the proceeds of an issuance of Senior Secured Notes;
(e) any loans made by any member of the Bank Group to its employees either:
(i) in the ordinary course of its employees’ employment; or
(ii) to fund the exercise of share options or the purchase of capital stock by its employees, directors, officers or consultants of the Group, provided that the aggregate principal amount of all such loans shall not at any time exceed £10 million (or its equivalent in other currencies);
(f) any loan made by a member of the Bank Group pursuant to either an Asset Passthrough or a Funding Passthrough;
(g) any loan made by a member of the Bank Group to a member of the Group, where the proceeds of such loan are, or are to be (whether directly or indirectly) used:
(i) to make payments to the High Yield Trustee in respect of High Yield Trustee Amounts (as such terms are defined in the HYD Intercreditor Agreement) in respect of the Existing High Yield Notes;
(ii) to make equivalent payments to those specified in paragraph (i) above in respect of any High Yield Refinancings or in respect of any Additional High Yield Notes;
(iii) to make payments under the Senior Secured Notes Documents;
(iv) provided that no Event of Default has occurred and is continuing or is likely to occur as a result thereof, to fund Permitted Payments; or
(v) at any time after the occurrence of an Event of Default, to fund Permitted Payments to the extent not prohibited by the HYD Intercreditor Agreement, the Group Intercreditor Agreement or a Supplemental HYD Intercreditor Agreement;
(h) credit granted by any member of the Bank Group to a member of the Group, where the Indebtedness outstanding thereunder relates to Intra-Group Services in the ordinary course of business;
(i) any guarantee given in respect of membership interests in any company limited by guarantee where the acquisition of such membership interest is permitted under Clause 25.13 (Acquisitions and Investments);
(j) any guarantee given by a member of the Bank Group in respect of or constituted by any Financial Indebtedness permitted under Clause 25.4 (Financial Indebtedness) or Clause 25.10 (Transactions with Affiliates) or other obligation not restricted by the terms of the Relevant Finance Documents, of another member of the Bank Group;
(k) any guarantees arising under the Relevant Finance Documents;
(l) any customary title guarantee given in connection with the assignment of leases where such assignment is permitted under Clause 25.6 (Disposals);
(m) any guarantees or similar undertakings granted by any member of the Bank Group in favour of H.M. Revenue & Customs in respect of any obligations of Virgin Media (UK) Group, Inc. in respect of UK tax in order to facilitate the winding up of Virgin Media (UK) Group, Inc. provided that the Facility Agent shall have first received confirmation from the Company that based on discussions with H.M. Revenue & Customs and the Company’s reasonable assumptions, the Company does not believe that the liability under such guarantee will exceed £15 million (such confirmation to be supported by a letter from the Company’s auditors for the time being, confirming that based on the Company’s calculations of such tax liability the Company’s confirmation is a reasonable assessment of such tax liability);
(n) any loan granted as a result of a Subscriber being allowed terms, in the ordinary course of trade, whereby it does not have to pay for the services provided to it for a period after the provision of such services;
(o) a loan made or a credit granted to a Joint Venture to the extent permitted under paragraph (d) of Clause 25.9 (Joint Ventures);
(p) any loans made under the terms of the Screenshop Intra-Group Loan Agreement;
(q) the BBC Guarantees;
(r) liquidity loans of a type which is customary for asset securitisation programmes or other receivables factoring transactions, provided in connection with any asset securitisation programme or receivables factoring transaction otherwise permitted by Clause 25.6(j) (Disposals); and
(s) loans made, credit granted or guarantees given by any member of the Bank Group not falling within paragraphs (a) to (r) above, in an aggregate amount not exceeding £100 million (or its equivalent in other currencies) outstanding at any time.
