Common use of Guarantees Generally Clause in Contracts

Guarantees Generally. (a) Each Parent Guarantor and each Subsidiary Guarantor, as primary obligor and not merely as surety, will jointly and severally, irrevocably and fully and unconditionally Guarantee, on an unsecured senior basis, the punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all monetary obligations of the Company under this Indenture and the Notes, whether for principal of or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Parent Guarantors being herein called the “Parent Guaranteed Obligations” and all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Subsidiary Guaranteed Obligations”). The obligations of each Subsidiary Guarantor will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor (including but not limited to any Guarantee by it of any Bank Indebtedness) and after giving effect to any collections from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Subsidiary Guarantor under the Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law, or being void or unenforceable under any law relating to insolvency of debtors. (i) Each Parent Guarantor and each Subsidiary Guarantor hereby agrees that (to the fullest extent permitted by law) its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of this Indenture, the Notes or the obligations of the Company or any other Parent Guarantor or Subsidiary Guarantor to the Holders or the Trustee hereunder or thereunder, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, any release of any other Parent Guarantor or Subsidiary Guarantor, the recovery of any judgment against the Company, any action to enforce the same, whether or not a notation concerning its Parent Guarantee or Subsidiary Guarantee is made on any particular Note, or any other circumstance that might otherwise constitute a legal or equitable discharge or defense of a Parent Guarantor or Subsidiary Guarantor. (ii) Each Parent Guarantor and each Subsidiary Guarantor hereby waives (to the fullest extent permitted by law) the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that (except as otherwise provided in Section 12.3 or 12.4) its Parent Guarantee or Subsidiary Guarantee, as the case may be, will not be discharged except by complete performance of the obligations contained in the Notes, this Indenture and this Parent Guarantee or Subsidiary Guarantee, as the case may be. Such Parent Guarantee or Subsidiary Guarantee is a guarantee of payment and not of collection. Each Parent Guarantor and each Subsidiary Guarantor further agrees (to the fullest extent permitted by law) that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, subject to this Article XII, (1) the maturity of the obligations guaranteed by its Subsidiary Guarantee may be accelerated as and to the extent provided in Article VIII for the purposes of such Parent Guarantee or Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed by such Parent Guarantee or Subsidiary Guarantee, and (2) in the event of any acceleration of such obligations as provided in Article VIII, such obligations (whether or not due and payable) shall forthwith become due and payable by such Parent Guarantor or Subsidiary Guarantor in accordance with the terms of this Section 12.1 for the purpose of such Parent Guarantee or Subsidiary Guarantee. Neither the Trustee nor any other Person shall have any obligation to enforce or exhaust any rights or remedies or to take any other steps under any security for the Parent Guaranteed Obligations or Subsidiary Guaranteed Obligations or against the Company or any other Person or any property of the Company or any other Person before the Trustee is entitled to demand payment and performance by any or all Parent Guarantors and Subsidiary Guarantors of their obligations under their respective Parent Guarantees and Subsidiary Guarantees or under this Indenture. (iii) Until terminated in accordance with Section 12.3 or 12.4, each Parent Guarantee and Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on such Notes, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. (c) Each Parent Guarantor and each Subsidiary Guarantor that makes a payment or distribution under its Parent Guarantee or Subsidiary Guarantee shall have the right to seek contribution from the Company or any non-paying Parent Guarantor or Subsidiary Guarantor that has also Guaranteed the relevant Parent Guaranteed Obligations or Subsidiary Guaranteed Obligations, as the case may be, in respect of which such payment or distribution is made, so long as the exercise of such right does not impair the rights of the Holders under the Parent Guarantees or Subsidiary Guarantees. (d) Each Parent Guarantor and each Subsidiary Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that its Parent Guarantee or Subsidiary Guarantee, as the case may be, and the waiver set forth in Section 12.6, are knowingly made in contemplation of such benefits. (e) Each Parent Guarantor and each Subsidiary Guarantor, pursuant to its Parent Guarantee or Subsidiary Guarantee, also hereby agrees to pay any and all reasonable out-of-pocket expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under its Parent Guarantee or Subsidiary Guarantee.

Guarantees Generally. Subject to the provisions of this Article 12, each Guarantor (a) Each Parent Guarantor including each Wholly Owned Domestic Subsidiary that executes this Indenture as a “Guarantor” on the Issue Date and each Subsidiary GuarantorPerson that becomes a Guarantor in accordance with Section 3.08), by execution of this Indenture or a supplemental indenture to this Indenture, as primary obligor and not merely as suretyapplicable, will providing for such guarantee, jointly and severally, irrevocably unconditionally guarantees (each, a “Guarantee” and fully and unconditionally Guarantee, on an unsecured senior basiscollectively, the “Guarantees”) to each Holder and the Trustee (i) the due and punctual payment of the principal of and interest on each Note, when dueand as the same shall become due and payable, whether at Stated Maturitymaturity, by acceleration acceleration, xxxx xxxxxxxxxx, xxxx xxxxxxxxxx or otherwise, the due and punctual payment of all monetary obligations of interest on the Company under this Indenture and the Notes, whether for overdue principal of or and interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Parent Guarantors being herein called and the “Parent Guaranteed Obligations” and all such obligations guaranteed by such Subsidiary Guarantors being herein called the “Subsidiary Guaranteed Obligations”). The obligations of each Subsidiary Guarantor Conversion Consideration will be limited promptly paid and/or delivered when due upon conversion, in each case, to the maximum amount as willextent lawful, after giving effect to and the due and punctual payment of all other contingent and fixed liabilities of such Subsidiary Guarantor (including but not limited to any Guarantee by it of any Bank Indebtedness) and after giving effect to any collections from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Subsidiary Guarantor under the Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law, or being void or unenforceable under any law relating to insolvency of debtors. (i) Each Parent Guarantor and each Subsidiary Guarantor hereby agrees that (to the fullest extent permitted by law) its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of this Indenture, the Notes or the obligations of the Company or any other Parent Guarantor or Subsidiary Guarantor to the Holders or the Trustee hereunder or thereunderall in accordance with the terms of such Note and this Indenture, and (ii) in the absence case of any action extension of time of payment or renewal of any Notes or any of such other obligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, at stated maturity, by acceleration, xxxx xxxxxxxxxx, xxxx xxxxxxxxxx or otherwise. Each Guarantor, by execution of this Indenture or a supplemental indenture to this Indenture, as applicable, agrees that its obligations hereunder shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any such Note or this Indenture, any failure to enforce the sameprovisions of any such Note or this Indenture, any waiver waiver, modification or consent by any Holder indulgence granted to the Company with respect to any provisions hereof or thereof, any release thereto by the Holder of any other Parent Guarantor or Subsidiary Guarantor, the recovery of any judgment against the Company, any action to enforce the same, whether or not a notation concerning its Parent Guarantee or Subsidiary Guarantee is made on any particular such Note, or any other circumstance that might circumstances which may otherwise constitute a legal or equitable discharge or defense of a Parent Guarantor surety or Subsidiary such Guarantor. (ii) . Each Parent Guarantor and each Subsidiary Guarantor hereby Guarantor, by execution of this Indenture or a supplemental indenture to this Indenture, as applicable, waives (to the fullest extent permitted by law) the benefit of diligence, presentment, demand of for payment, filing of claims with a court in the event of insolvency merger or bankruptcy of the Company, any right to require a proceeding first against the Company, protestprotest or notice with respect to any such Note or the indebtedness evidenced thereby (except as expressly required hereunder, notice including pursuant to Article 7 hereof) and all demands whatsoever whatsoever, and covenants that (except as otherwise provided in Section 12.3 or 12.4) its Parent this Guarantee or Subsidiary Guarantee, as the case may be, will shall not be discharged as to any such Note except by complete performance of the obligations contained in the NotesNotes and this Indenture. Each Guarantor, by execution of this Indenture and or a supplemental indenture to this Parent Guarantee or Subsidiary GuaranteeIndenture, as the case may be. Such Parent Guarantee or Subsidiary Guarantee is a guarantee of payment and not of collection. Each Parent Guarantor and each Subsidiary Guarantor further applicable, agrees (to the fullest extent permitted by law) that, as between itsuch Guarantor, on the one hand, and the Holders of Notes and the Trustee, on the other hand, subject to this Article XII, (1i) the maturity of the obligations guaranteed by its Subsidiary Guarantee pursuant to this Indenture or such supplemental indenture, as applicable, may be accelerated as and to the extent provided in Article VIII 7 for the purposes of such Parent Guarantee or Subsidiary this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed by execution of this Indenture or such Parent Guarantee or Subsidiary Guaranteesupplemental indenture, as applicable, and (2ii) in the event of any declaration of acceleration of such obligations as provided in Article VIII7, such obligations (whether or not due and payable) shall forthwith become due and payable by such Parent each Guarantor or Subsidiary Guarantor in accordance with the terms of this Section 12.1 for the purpose of such Parent Guarantee or Subsidiary the Guarantee. Neither the Trustee nor any other Person The Guarantees are not convertible and shall have any obligation to enforce automatically terminate when a Note is converted for cash, shares of Common Stock or exhaust any rights or remedies or to take any other steps under any security for the Parent Guaranteed Obligations or Subsidiary Guaranteed Obligations or against the Company or any other Person or any property of the Company or any other Person before the Trustee is entitled to demand payment and performance by any or all Parent Guarantors and Subsidiary Guarantors of their obligations under their respective Parent Guarantees and Subsidiary Guarantees or under this Indenturea combination thereof. (iii) Until terminated in accordance with Section 12.3 or 12.4, each Parent Guarantee and Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on such Notes, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. (c) Each Parent Guarantor and each Subsidiary Guarantor that makes a payment or distribution under its Parent Guarantee or Subsidiary Guarantee shall have the right to seek contribution from the Company or any non-paying Parent Guarantor or Subsidiary Guarantor that has also Guaranteed the relevant Parent Guaranteed Obligations or Subsidiary Guaranteed Obligations, as the case may be, in respect of which such payment or distribution is made, so long as the exercise of such right does not impair the rights of the Holders under the Parent Guarantees or Subsidiary Guarantees. (d) Each Parent Guarantor and each Subsidiary Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that its Parent Guarantee or Subsidiary Guarantee, as the case may be, and the waiver set forth in Section 12.6, are knowingly made in contemplation of such benefits. (e) Each Parent Guarantor and each Subsidiary Guarantor, pursuant to its Parent Guarantee or Subsidiary Guarantee, also hereby agrees to pay any and all reasonable out-of-pocket expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under its Parent Guarantee or Subsidiary Guarantee.

Guarantees Generally. (a) Guarantee of Each Parent Guarantor and each Subsidiary Guarantor, if any. Each Subsidiary Guarantor, if any, as primary obligor and not merely as surety, will jointly and severally, irrevocably and fully and unconditionally Guarantee, on an unsecured senior basis, the punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all monetary obligations of the Company Issuers under this Indenture and the Notes, whether for principal of or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Parent Guarantors being herein called the “Parent Guaranteed Obligations” and all such obligations guaranteed by such Subsidiary Guarantors being herein called the “"Subsidiary Guaranteed Obligations”"). The obligations of each Subsidiary Guarantor Guarantor, if any, will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor Guarantor, (including but not limited to any Guarantee by it of any Bank Indebtedness) and after giving effect to any collections from or payments made by or on behalf of any other Subsidiary Guarantor Guarantor, if any, in respect of the obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Subsidiary Guarantor under the Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law, or being void or unenforceable under any law relating to insolvency of debtors. (b) Further Agreements of Each Subsidiary Guarantor, if any. (i) Each Parent Guarantor and each Subsidiary Guarantor Guarantor, if any, hereby agrees that (to the fullest extent permitted by law) its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of this Indenture, the Notes or the obligations of the Company Issuers or any other Parent Guarantor or Subsidiary Guarantor Guarantor, if any, to the Holders or the Trustee hereunder or thereunder, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, any release of any other Parent Guarantor or Subsidiary Guarantor, if any, the recovery of any judgment against the CompanyIssuers, any action to enforce the same, whether or not a notation concerning its Parent Guarantee or Subsidiary Guarantee is made on any particular Note, or any other circumstance that might otherwise constitute a legal or equitable discharge or defense of a Parent Guarantor or Subsidiary Guarantor. (ii) Each Parent Guarantor and each Subsidiary Guarantor Guarantor, if any, hereby waives (to the fullest extent permitted by law) the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Companyan Issuer, any right to require a proceeding first against the Companysuch Issuer, protest, notice and all demands whatsoever and covenants that (except as otherwise provided in Section 12.3 or 12.41303) its Parent Subsidiary Guarantee or Subsidiary Guarantee, as the case may be, will not be discharged except by complete performance of the obligations contained in the Notes, this Indenture and this Parent Guarantee or Subsidiary Guarantee, as the case may be. Such Parent Guarantee or Subsidiary Guarantee is a guarantee of payment and not of collection. Each Parent Guarantor and each Subsidiary Guarantor Guarantor, if any, further agrees (to the fullest extent permitted by law) that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, subject to this Article XIIXIII, (1) the maturity of the obligations guaranteed by its Subsidiary Guarantee may be accelerated as and to the extent provided in Article VIII VI for the purposes of such Parent Guarantee or Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed by such Parent Guarantee or Subsidiary Guarantee, and (2) in the event of any acceleration of such obligations as provided in Article VIIIVI, such obligations (whether or not due and payable) shall forthwith become due and payable by such Parent Guarantor or Subsidiary Guarantor in accordance with the terms of this Section 12.1 1301 for the purpose of such Parent Guarantee or Subsidiary Guarantee. Neither the Trustee nor any other Person shall have any obligation to enforce or exhaust any rights or remedies or to take any other steps under any security for the Parent Guaranteed Obligations or Subsidiary Guaranteed Obligations or against the Company Issuers or any other Person or any property of the Company Issuers or any other Person before the Trustee is entitled to demand payment and performance by any or all Parent Guarantors and Subsidiary Guarantors of their obligations under their respective Parent Guarantees and Subsidiary Guarantees or under this Indenture. (iii) Until terminated in accordance with Section 12.3 or 12.41303. each Subsidiary Guarantee, each Parent Guarantee and Subsidiary Guarantee if any, shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company Issuers for liquidation or reorganization, should the Company Issuers become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s Issuers' assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on such Notes, whether as a “"voidable preference,” “" "fraudulent transfer” " or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. (c) Each Parent Guarantor and each Subsidiary Guarantor Guarantor, if any, that makes a payment or distribution under its Parent Guarantee or Subsidiary Guarantee shall have the right to seek contribution from the Company Issuers or any non-paying Parent Guarantor or Subsidiary Guarantor that has also Guaranteed the relevant Parent Subsidiary Guaranteed Obligations or Subsidiary Guaranteed Obligations, as the case may be, in respect of which such payment or distribution is made, so long as the exercise of such right does not impair the rights of the Holders under the Parent Guarantees or Subsidiary Guarantees. (d) Each Parent Guarantor and each Subsidiary Guarantor Guarantor, if any, acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that its Parent Guarantee or Subsidiary Guarantee, as the case may be, and the waiver set forth in Section 12.61305, are knowingly made in contemplation of such benefits. (e) Each Parent Guarantor and each Subsidiary Guarantor, if any, pursuant to its Parent Guarantee or Subsidiary Guarantee, also hereby agrees to pay any and all reasonable out-of-pocket expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under its Parent Guarantee or Subsidiary Guarantee.