Guarantees. Subject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note 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 Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 4 contracts
Samples: Indenture (Asbury Automotive Group Inc), Supplemental Indenture (Asbury Automotive Group Inc), Indenture (Asbury Automotive Group Inc)
Guarantees. Subject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note 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 Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and of, premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interestpremium, if any, on, and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in the case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Subsidiary Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this IndentureIndenture or pursuant to Section 10.04. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-non paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 3 contracts
Samples: Supplemental Indenture (E Trade Financial Corp), Supplemental Indenture (E Trade Financial Corp), Supplemental Indenture (E Trade Financial Corp)
Guarantees. Subject to this Article 1011, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note 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 Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interestinterest and Special Interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interestinterest and Special Interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 3 contracts
Samples: Indenture (Asbury Automotive Group Inc), Indenture (Asbury Automotive Group Inc), Supplemental Indenture (Asbury Automotive Group Inc)
Guarantees. Subject to this Article 10, each of the Guarantors herebyEach Guarantor unconditionally guarantees, jointly with each other Guarantor and severally, unconditionally guarantees to each Holder of as a Note authenticated primary obligor and delivered by the Trustee and to the Trustee and its successors and assignsnot merely as a surety, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the due and punctual payment by each Borrower (other than itself) of (i) the principal of and premium, if any, ofand interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Revolving Credit Advances made to such Borrower, when and interest, if any, on, the Notes will be promptly paid in full when as due, whether at maturity, by acceleration, redemption upon one or more dates set for prepayment or otherwise, and interest on (ii) each payment required to be made by such Borrower under the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations guaranteed hereby until to provide cash collateral, and (iii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of such Borrower to the Administrative Agent and each Lender under the Credit Agreement and the other Loan Documents (collectively, the “Guaranteed Parties”), whether such amounts shall have accrued prior to, on or after the Closing Date, (b) the due and punctual payment in full and performance of all covenants, agreements, obligations and liabilities of each Borrower (other than itself), monetary or otherwise, under or pursuant to the Credit Agreement and the other Loan Documents, and (c) the due and punctual payment and performance of all obligations guaranteed herebyof each Borrower (other than itself), monetary or otherwise, under each Interest Rate Agreement in effect on the Closing Date to which any Lender (or an Affiliate of a Lender) is a party and each Interest Rate Agreement entered into after the Closing Date with any counterparty that is a Lender (or an Affiliate of a Lender) at the time such Interest Rate Agreement is entered into (all the monetary and other obligations referred to in the preceding clauses (a) through (c) being collectively called the “Obligations”). Anything contained in this Agreement to the contrary notwithstanding, the obligations of TRS and ROC hereunder, shall be limited to a maximum aggregate amount equal to the greatest amount that would not render such obligations subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any provisions of applicable law (collectively, the “Fraudulent Transfer Laws”), in each case after giving effect to all other liabilities of TRS and ROC contingent or otherwise, that are relevant under the Fraudulent Transfer Laws and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights of TRS and ROC, as the case may be, pursuant to (i) applicable law, or (ii) any agreement providing for an equitable allocation among TRS or ROC, as the case may be, and other Affiliates of Rayonier of obligations arising under Guarantees by such parties. Each Guarantor further agrees thatthat the Obligations may be extended or renewed, as between the Guarantorsin whole or in part, on the one handwithout notice to or further assent from it, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, that it will remain bound upon its guarantee notwithstanding any stay, injunction extension or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event renewal of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeObligation.
Appears in 3 contracts
Samples: Credit Agreement (Rayonier Inc), Credit Agreement (Rayonier Inc), Guarantee Agreement (Rayonier Inc)
Guarantees. Subject to this Article 10Purchaser acknowledges that in the course of conduct of their business, each of the Guarantors hereby, jointly Sellers and severally, unconditionally guarantees to each Holder of a Note 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 Notes or the obligations of the Company hereunder or thereunder, that: their Affiliates may have entered into various arrangements (a) the principal and premiumin which guarantees, if anyletters of credit, ofsureties, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, bonds or similar arrangements were issued by acceleration, redemption Sellers or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; their Affiliates and (b) in which Sellers or their Affiliates are the primary obligors on other Contracts, in any such case to support or facilitate such business. The arrangements entered into by Sellers or their Affiliates referred to in the foregoing clauses (a) and (b), solely to the extent relating to any Acquired Assets or Assumed Liabilities set forth in Schedule 6.10, are referred to as the “Seller Support Obligations”. It is understood that the Seller Support Obligations are not intended to continue after the Closing. Purchaser agrees that it shall use its reasonable best efforts to obtain replacements for the Seller Support Obligations (which shall include the full and unconditional release of Sellers and their Affiliates) that will be in effect at the Closing or, in the case of any extension Seller Support Obligations described in the foregoing clause (b), will use its commercially reasonable efforts to arrange for itself or one of time its Subsidiaries to be substituted as the primary obligor thereon as of payment the Closing through an assumption, accession, acknowledgement or renewal similar agreement (which shall include the full and unconditional release of any Notes Sellers and their Affiliates) with the beneficiary of the applicable Seller Support Obligation. Whether or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with not Purchaser is able to satisfy the terms of the extension or renewalimmediately preceding sentence, whether at stated maturityPurchaser shall indemnify Sellers and their Affiliates and each of their respective officers, by acceleration or otherwise. In addition to the foregoingdirectors, each Guarantor also agreesemployees, unconditionally agents and jointly representatives from and severally with each other Guarantor, to pay against any and all expenses (including, without limitation, counsel fees and expenses) Liabilities incurred by any of them relating to the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a GuarantorSeller Support Obligations. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reasonPurchaser agrees that, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofSeller Support Obligation, its reasonable best efforts pursuant to this Section 6.10 shall include, if requested, the recovery execution and delivery by Purchaser, or by an Affiliate of any judgment against Purchaser acceptable to the Companybeneficiary of such Seller Support Obligation, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court replacement guarantee that is substantially in the event form of insolvency such Seller Support Obligation. All costs and expenses incurred in connection with providing the release or bankruptcy substitution of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, Seller Support Obligations shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable borne by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteePurchaser.
Appears in 3 contracts
Samples: Asset Purchase Agreement (XPO, Inc.), Asset Purchase Agreement (Yellow Corp), Asset Purchase Agreement (Saia Inc)
Guarantees. Subject The Guarantors (as defined in the Indenture (the “Indenture”) referred to in the Note upon which this Article 10, notation is endorsed and each hereinafter referred to as a “Guarantor”) have unconditionally guaranteed on a senior subordinated basis (such guarantee by each Guarantor being referred to herein as the “Guarantee”) (i) the due and punctual payment of the Guarantors hereby, jointly principal of and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, interest on the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration, redemption acceleration or otherwise, otherwise and interest on the overdue principal and premiumprincipal, if any ofany, and interest on any interest, if any, on, to the Notes, if any, if extent lawful, of the Notes and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; set forth in of the Indenture and (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise. In addition The obligations of each Guarantor to the foregoing, each Guarantor also agrees, unconditionally Holders and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return pursuant to the Company, Guarantee and the Guarantors or any custodian, trustee, liquidator or other similar official acting Indenture are expressly set forth and are expressly subordinated and subject in relation to either the Company or the Guarantors, any amount paid by either right of payment to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until prior payment in full of all obligations guaranteed herebyGuarantor Senior Debt of such Guarantor, to the extent and in the manner provided, in Article XII of the Indenture, and reference is hereby made to such Indenture for the precise terms of the Guarantee therein made. Each Guarantor further agrees thatNo past, present or future stockholder, director, officer, employee or incorporator, as between the Guarantorssuch, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of any of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Guarantors shall have any liability for any obligation of the purposes of this Subsidiary GuaranteeGuarantors under the Guarantee or the Indenture or for any claim based on, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofor by reason of, such obligations (whether or not due their creation. Each Holder of a Note by accepting a Note waives and payable) shall forthwith become due releases all such liability. The waiver and payable by release are part of the Guarantors consideration for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights issuance of the Holders under the GuaranteeGuarantees. SUBSIDIARY GUARANTORS: PrintCo., Inc. By: Name: Title: Webcraft, LLC By: Name: Title: Webcraft Chemicals, LLC By: Name: Title: Enteron Group, LLC By: Name: Title: Big Flower Digital Services (Delaware), Inc. By: Name: Title: Big Flower Digital LLC By: Name: Title:
Appears in 3 contracts
Samples: Indenture (Vertis Inc), Indenture (Vertis Inc), Vertis Inc
Guarantees. Subject to the provisions of this Article 10, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note 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 Notes or the obligations other Obligations of the Company Issuers hereunder or thereunder, that: (a) the principal of, premium and premiuminterest (including Additional Interest, if any, of, and interest, if any, on, ) on the Notes will shall be promptly paid in full when due, whether at maturitythe maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, premium and interestinterest (including Additional Interest, if any, on, ) on the Notes, if any, if to the extent lawful, and all other obligations Obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will under this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof of this Indenture and thereofthe Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofof this Indenture and the Notes, the recovery of any judgment against the CompanyIssuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a guarantorSubsidiary Guarantor. Each To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuers, any right to require a proceeding first against the CompanyIssuers, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers or Subsidiary Guarantors, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuers or the Subsidiary Guarantors, any amount paid by either any of them to the Trustee or such Holder, this Subsidiary Guaranteethese Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteethese Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guaranteethese Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.these Guarantees. Back to Contents
Appears in 3 contracts
Samples: Atlas America Inc, Atlas Pipeline Partners Lp, Atlas Pipeline Holdings, L.P.
Guarantees. Subject to this Article 10, each of the Guarantors herebyEach Guarantor, jointly and severally, unconditionally guarantees guarantees, on an unsecured senior basis, to each Holder of a Note 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 Notes or the obligations Obligations of the Company hereunder Issuers under this Indenture or thereunderthe Notes, that: (ai) the principal and of, premium, if any, of, and interestinterest and Liquidated Damages, if any, on, on the Notes will be promptly paid in full when due, whether at maturitythe maturity or interest payment or mandatory redemption date, by acceleration, redemption call for redemption, offer to purchase or otherwise, and interest on the overdue principal and of, premium, if any of, and interestinterest and Liquidated Damages, if any, on, on the Notes, if any, if lawful, Notes and all other obligations Obligations of the Company Issuers to the Holders or the Trustee hereunder under this Indenture or thereunder the Notes will be promptly paid in full or performed, all in accordance with the terms hereof of this Indenture and thereofthe Notes; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that same they will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally ; and jointly and severally with each other Guarantor, to pay (iii) any and all costs and expenses (including, without limitation, counsel fees and expensesincluding reasonable attorneys' fees) incurred by the Trustee under this Indenture or any Holder in enforcing any rights under a Subsidiary any Guarantee with respect to a Guarantorthe Notes will be paid. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall any Guarantor will be jointly and severally obligated (subject to any grace periods allowed pursuant to Section 6.1 hereof) to pay the same immediatelywhether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 6.2 hereof. An Event of Default under this Indenture or the Notes shall constitute an event of default under any Guarantee of the Notes, and shall entitle the Holders of Notes to accelerate the Obligations of any Guarantor hereunder in the same manner and to the same extent as the Obligations of the Issuers. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations its Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the CompanyIssuers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorany Guarantor. Each Any Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of either or both of the Company, any right to require a proceeding first against the CompanyIssuers, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall with respect to the Notes will not be discharged except by complete performance of the obligations contained in its Obligations under the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Companyany Issuer, the Guarantors any Guarantor or any custodianCustodian, trusteeTrustee, liquidator or other similar official acting in relation to either the Company any Issuer or the Guarantors, any Guarantor any amount paid by either any such entity to the Trustee or such Holder, this Subsidiary Guaranteeany Guarantee to the Notes, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Holder in respect of any obligations Obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteehereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose of this Subsidiary Guaranteesuch Guarantee of the Notes. The Guarantors A Guarantor shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders Holder under its Guarantee of the GuaranteeNotes. Each Holder of a Note by its acceptance thereof agrees to and shall be bound by the provisions of this Section 10.1.
Appears in 3 contracts
Samples: Supplemental Indenture (Meristar Hospitality Corp), Supplemental Indenture (Meristar Hospitality Corp), Credit Agreement (Meristar Hospitality Corp)
Guarantees. Subject to this Article 10Fourteen, to the extent provided for in any series of Securities under this Indenture, each of the Guarantors hereby, Guarantor hereby jointly and severallyseverally irrevocably and unconditionally Guarantees, unconditionally guarantees as a primary obligor and not merely as a surety, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assignsassigns (a) the full and punctual payment when due, irrespective whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the validity Company under this Indenture (including obligations to the Trustee) and enforceability the Securities, whether for payment of principal of or interest on the Securities and all other monetary obligations of the Company under this Indenture and the Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Securities (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article Fourteen notwithstanding any extension or renewal of any Guaranteed Obligation. Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Securities or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (f) any change in the ownership of such Guarantor, except as provided in Section 14.03. Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Company first be used and depleted as payment of the Company’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Guarantor. Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Sections 13.02, 14.02 and 14.03, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, wilful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity. Each Guarantor agrees that its Guarantee is a continuing Guarantee and shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company hereunder or thereunderotherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, that: (a) upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and premium, if any, of, and interest, if any, on, as the Notes will be promptly paid in full when same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (a) the unpaid principal amount of such Guaranteed Obligations, (b) accrued and unpaid interest on such Guaranteed Obligations (but only to the overdue principal extent not prohibited by law) and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and (c) all other monetary obligations of the Company to the Holders or and the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediatelyTrustee. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the obligations Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Five for the purposes of this Subsidiary Guaranteeany Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Guaranteed Obligations guaranteed hereby, and (yb) in the event of any declaration of acceleration of such obligations Guaranteed Obligations as provided in Article 6 hereofFive, such obligations Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the Guarantors for purposes of this Section 14.01. Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 14.01. Upon request of the Trustee, each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeIndenture.
Appears in 3 contracts
Samples: O&M Halyard, Inc., Owens & Minor Inc/Va/, Owens & Minor Distribution, Inc.
Guarantees. Subject to The provisions of this Article 10Thirteen shall be applicable to the extent that any Note Guarantee is in effect or is required to be in effect in accordance with the terms of this Indenture. Except to the extent otherwise provided in this Indenture, each the Securities shall not be guaranteed by any Subsidiaries of the Guarantors herebyIssuer. Each Guarantor, if any, hereby unconditionally guarantees, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assignsassigns (a) the full and punctual payment of principal of (and premium, irrespective if any) and interest on the Securities when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the validity Issuer under this Indenture and enforceability the Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Issuer under this Indenture and the Securities (all the foregoing being hereinafter collectively called the “Obligations”). Each Guarantor further agrees that the Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Guarantor, and that such Guarantor will remain bound under this Article Thirteen notwithstanding any extension or renewal of any Obligation. Each Guarantor waives presentation to, demand of, payment from and protest to the Issuer of any of the Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Securities or the Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) any change in the ownership of such Guarantor. Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Obligations. Except as expressly set forth in Sections 803, 804, 1017, 1019, 1202, 1203, 1303 and 1308, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the Company hereunder invalidity, illegality or thereunderunenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, that: the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of (a) the principal and or premium, if any) or interest on any Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, of, and interestupon the failure of the Issuer to pay the principal of (or premium, if any, on, ) or interest on any Obligation when and as the Notes will be promptly paid in full when same shall become due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Obligation, each Guarantor hereby promises to and interest on will, upon receipt of written demand by the overdue principal and premiumTrustee, if any offorthwith pay, and interestor cause to be paid, if anyin cash, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with an amount equal to the terms hereof and thereof; and sum of (bi) in case of any extension of time of payment or renewal of any Notes or any the unpaid amount of such other obligationsObligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally (ii) accrued and jointly and severally with each other Guarantor, to pay any and all expenses unpaid interest on such Obligations (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, but only to the extent theretofore discharged, shall be reinstated in full force not prohibited by law) and effect(iii) all other monetary Obligations of the Issuer to the Holders and the Trustee. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Obligations guaranteed hereby until payment in full in cash of all obligations guaranteed herebyObligations. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Five for the purposes of this Subsidiary Guaranteesuch Guarantor’s Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereofFive, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose purposes of this Subsidiary GuaranteeSection 1301. The Guarantors shall have Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the right to seek contribution from Trustee or any non-paying Guarantor so long as the exercise of such right does not impair the Holder in enforcing any rights of the Holders under the Guaranteethis Section 1301.
Appears in 3 contracts
Samples: Supplemental Indenture (Level 3 Communications Inc), Supplemental Indenture (Level 3 Communications Inc), Supplemental Indenture (Level 3 Communications Inc)
Guarantees. Subject to this Article 10the limitations set forth in Section 11.04, each of the Guarantors hereby, jointly and severally, unconditionally guarantees Guarantee to each Holder of a Note authenticated and delivered by the Trustee Notes and to the Trustee and its their respective successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations Obligations of the Company hereunder or thereunder, that: (a) the principal and of, premium, if any, of, and interest, if any, on, interest on the Notes will shall be promptly paid in full when due, subject to any applicable grace period, whether at maturityStated Maturity, by acceleration, redemption redemption, required purchase or repurchase or otherwise, and interest on the overdue principal of and interest on premium, if any of, and interest, if any, on, the Notes, if anyand interest, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturityStated Maturity, by acceleration acceleration, redemption, required purchase or repurchase or otherwise. In addition the event the Company fails to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing make payment when due due, subject to any applicable grace period, of any amount so guaranteed Guaranteed or any performance so guaranteed Guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the CompanyCompany or any Guarantor, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorguarantor (other than the payment in full of the amounts Guaranteed). Each Guarantor hereby waives 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 CompanyCompany or another Guarantor, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee the Notes Guarantees shall not be discharged except by complete performance of the obligations contained in the Notes and this IndentureIndenture Documents. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Company or any custodianof the Guarantors, trustee, liquidator or any Custodian or other similar official acting in relation to either the Company or any of the Guarantors, any amount paid by either to the Trustee or to such Holder, this Subsidiary Guaranteethe Notes Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed Guaranteed hereby until payment in full of all obligations guaranteed Guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed Guaranteed hereby may be accelerated as provided in Article 6 hereof 7 for the purposes of this Subsidiary Guaranteethe Notes Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, Guaranteed hereby and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof7, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guaranteethe Notes Guarantees. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Trustee or the Holders under the GuaranteeNotes Guarantees.
Appears in 3 contracts
Samples: Indenture (CURO Group Holdings Corp.), Indenture (CURO Group Holdings Corp.), Indenture (CURO Group Holdings Corp.)
Guarantees. Subject to this Article 10Except as otherwise contemplated by Section 1403 below, each of the Guarantors hereby, jointly and severally, Guarantor hereby unconditionally guarantees to each Holder of a Note Security authenticated and delivered by the Trustee Trustee, and to the Trustee on behalf of such Holder, the due and its successors and assigns, irrespective punctual payment of the validity principal of and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal any premium and premiuminterest on and any Additional Amounts, if any, ofon such Security and the due and punctual payment of any sinking fund or analogous payments provided for pursuant to the terms of such Security, when and interest, if any, on, as the Notes will be promptly paid in full when duesame shall become due and payable, whether at maturitythe Stated Maturity, by declaration of acceleration, redemption call for redemption, repayment at the option of the Holder or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of such Security and of this Indenture, and any and all other amounts owed by the extension or renewalCompany to the Trustee under the terms of this Indenture. In case of the failure of the Company punctually to make any such payment, the Guarantor hereby agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at stated maturitythe Stated Maturity or by declaration of acceleration, by acceleration call for redemption, repayment at the option of the Holder or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred as if such payment were made by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a GuarantorCompany. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each The Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes such Security or this Indenture, the absence of any action to enforce the same, any waiver or consent by any the Holder of such Security or by the Notes Trustee with respect to any provisions hereof thereof or thereofof this Indenture, the recovery obtaining of any judgment against the Company, Company or any action to enforce the same or any other circumstance circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each The Guarantor hereby waives the benefits 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, protest or notice with respect to such Security or the indebtedness evidenced thereby or with respect to any sinking fund payment required pursuant to the terms of such Security and all demands whatsoever whatsoever, and covenant covenants that this Subsidiary Guarantee shall the Guarantees will not be discharged in respect of such Security except by complete performance of the obligations contained in such Security and in this guarantee. The Guarantor hereby agrees that, in the Notes event of a default in payment of principal (or premium, if any) or interest or Additional Amounts, if any, on such Security, or a default in any sinking fund or analogous payment referred to therein, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Security, on the terms and conditions set forth in this Indenture, directly against the Guarantor to enforce the Guarantees without first proceeding against the Company. If The Guarantor shall be subrogated to all rights of the Holders of the Securities of a particular series against the Company in respect of any Holder or amounts paid by the Trustee is required by any court or otherwise to return Guarantor on account of such Security pursuant to the Companyprovisions of the Guarantees or this Indenture; provided, however, that the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, Guarantor shall be reinstated in full force and effect. Each Guarantor agrees that it shall -------- ------- not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation in relation to until the Holders in respect principal of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that(and premium, as between the Guarantorsif any) and interest and Additional Amounts, if any, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration all Securities of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors series issued hereunder shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteebeen paid in full.
Appears in 2 contracts
Samples: Thermo Electron Corp, Thermo Electron Corp
Guarantees. Subject to this Article 10, each of the Guarantors herebyEach Guarantor, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated Guaranteed Party the due and delivered punctual payment by the Trustee and Rayonier (or TRS on Rayonier’s behalf pursuant to the Trustee and its successors and assigns, irrespective Contribution Agreement) of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal of and premium, if any, ofand interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Revenue Bonds, when and interest, if any, on, the Notes will be promptly paid in full when as due, whether at maturity, by acceleration, redemption upon one or more dates set for prepayment or otherwise, and interest on (b) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the overdue principal and premiumpendency of any bankruptcy, if insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of Rayonier to the Guaranteed Parties under any oftrust indenture, and interest, if any, onloan agreement or other related operative documents governing the Revenue Bonds (together, the Notes“Bond Documents”), if anywhether such amounts shall have accrued prior to, if lawful, and on or after the date of this Guarantee (all other the monetary obligations of referred to in the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; preceding clauses (a) and (b) being collectively called the “Rayonier Obligations”). Anything contained in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition this Guarantee to the foregoingcontrary notwithstanding, the obligations of each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective limited to a maximum aggregate amount equal to the greatest amount that would not render such obligations subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the validityUnited States Code or any provisions of applicable law (collectively, regularity the “Fraudulent Transfer Laws”), in each case after giving effect to all other liabilities of such Guarantor, contingent or enforceability otherwise, that are relevant under the Fraudulent Transfer Laws and after giving effect as assets to the value (as determined under the applicable provisions of the Notes or this Indenture, the absence Fraudulent Transfer Laws) of any action rights to enforce the samesubrogation, contribution, reimbursement, indemnity or similar rights of such Guarantor pursuant to (i) applicable law or (ii) any waiver or consent agreement providing for an equitable allocation among such Guarantor and other Affiliates of Rayonier of obligations arising under Guarantees by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed herebyparties. Each Guarantor further agrees thatthat the Rayonier Obligations may be extended or renewed, as between the Guarantorsin whole or in part, on the one handwithout notice to or further assent from it, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, that it will remain bound upon its guarantee notwithstanding any stay, injunction extension or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event renewal of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeRayonier Obligation.
Appears in 2 contracts
Guarantees. Subject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee Security and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes Securities or the obligations of the Company hereunder or thereunder, that: (a) the principal and of, premium, if any, of, and interest, if any, on, on the Notes Securities will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, on the NotesSecurities, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in the case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Subsidiary Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes Securities and this IndentureIndenture or pursuant to Section 10.04. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 2 contracts
Samples: Supplemental Indenture (E Trade Financial Corp), Supplemental Indenture (E Trade Financial Corp)
Guarantees. Subject (a) For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, subject to this Article 10Section 11.07, each of the Guarantors, together with each Subsidiary of the Company which in accordance with Section 11.08 is required in the future to guarantee the Obligations of the Company and the Guarantors herebyunder the Securities, the Guarantees and this Indenture upon execution of a supplemental indenture, hereby jointly and severally, severally and irrevocably and unconditionally guarantees to the Trustee and to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and or enforceability of this Indenture, the Notes Indenture or the obligations Securities or the Obligations of the Company hereunder or thereunderand the Guarantors under this Indenture, that: (ai) the principal and of, premium, if any, of, and any interest, if anyon the Securities (including, onwithout limitation, any interest that accrues after the Notes filing of a proceeding of the type described in Sections 6.01(g) and (h)) and any reasonable fees, expenses and other amounts owing under this Indenture will be promptly duly and punctually paid in full when due, whether at maturityStated Maturity, by acceleration, redemption call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase or otherwise, and interest on the overdue principal and premium, if any of, and (to the extent permitted by law) interest, if any, on, on the Notes, if any, if lawfulSecurities and any other amounts due in respect of the Securities, and all other obligations Obligations of the Company and the Guarantors to the Holders of the Securities under this Indenture and the Securities, whether now or the Trustee hereunder or thereunder hereafter existing, will be promptly paid in full or performed, all strictly in accordance with the terms hereof hereof, and thereofof the Securities; and (bii) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligationsObligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration acceleration, call for redemption, upon Change of Control Offer, Asset Sale Offer, purchase or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing If payment is not made when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors each Guarantor shall be jointly and severally obligated to pay the same immediatelyindividually whether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 6.02. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations An Event of Default under this Indenture or the Securities shall constitute an Event of Default under this Guarantee, and shall entitle the Holders to accelerate the Obligations of each Guarantor hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce in the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in manner and to the event of insolvency or bankruptcy same extent as the Obligations of the Company, any right . This Guarantee is intended to require be a proceeding first against the Company, protest, notice senior unsecured obligation of each respective Guarantor and all demands whatsoever and covenant that this Subsidiary Guarantee shall not is intended to be discharged except by complete performance of the obligations contained superior to or pari passu in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of with all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, indebtedness and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration liabilities of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.that are not
Appears in 2 contracts
Samples: Nabors Industries Inc, Trend Drilling Co
Guarantees. Subject to this Article 10Thirteen, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee (acting in any capacity hereunder) and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes Securities or the obligations Obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes Securities will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the NotesSecurities, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee (acting in any capacity hereunder) hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes Securities and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 Five hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 2 contracts
Samples: Indenture (Sonic Automotive Inc), Sonic Automotive Inc
Guarantees. Subject to this Article 10X, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note 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 Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and of, premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interestpremium, if any, on, and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in the case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Subsidiary Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this IndentureIndenture or pursuant to Section 10.04. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof VI for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofVI, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-non paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 2 contracts
Samples: Supplemental Indenture (E Trade Financial Corp), Supplemental Indenture (E Trade Financial Corp)
Guarantees. Subject to the provisions of this Article 10, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note 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 Notes or the obligations other Obligations of the Company Issuers hereunder or thereunder, that: (a) that the principal and premium, if any, of, premium and interest, if any, on, interest on the Notes will shall be promptly paid in full when due, whether at maturitythe maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, premium and interest, if any, on, interest on the Notes, if any, if lawful, to the extent lawful and all other obligations Obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will under this Indenture and the Notes shall be promptly paid in full or performedfull, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantorand the Notes. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofof this Indenture and the Notes, the recovery of any judgment against the CompanyIssuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a guarantorSubsidiary Guarantor. Each To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuers, any right to require a proceeding first against the CompanyIssuers, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers or Subsidiary Guarantors, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuers or the Subsidiary Guarantors, any amount paid by either any of them to the Trustee or such Holder, this Subsidiary Guaranteethese Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteethese Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guaranteethese Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteethese Guarantees.
Appears in 2 contracts
Samples: Supplemental Indenture (Penn Virginia Resource Partners L P), First Supplemental Indenture (Penn Virginia Resource Partners L P)
Guarantees. Subject to this Article 10(a) For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Guarantors hereby, hereby jointly and severally, severally and irrevocably and unconditionally guarantees to the Trustee and to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and or enforceability of this Indenture, the Notes Indenture or the obligations Securities or the Obligations of the Company hereunder or thereunderand the Guarantors under this Indenture, that: (ai) the principal and of, premium, if any, ofand any interest, on the Securities (including, without limitation, contingent interest and interestany interest that accrues after the filing of a proceeding of the type described in Sections 6.01(e) and (f)), Liquidated Damages, if any, onon the Securities and any fees, the Notes expenses and other amounts owing under this Indenture will be promptly duly and punctually paid in full when due, whether at maturityStated Maturity, by acceleration, redemption call for redemption, upon a Purchase Notice, a Change in Control Offer, purchase or otherwise, and interest on the overdue principal and premium, if any of, and (to the extent permitted by law) interest, if any, on, on the Notes, if any, if lawfulSecurities and any other amounts due in respect of the Securities, and all other obligations Obligations of the Company and the Guarantors to the Holders of the Securities under this Indenture and the Securities, whether now or the Trustee hereunder or thereunder hereafter existing, will be promptly paid in full or performed, all strictly in accordance with the terms hereof and thereofof the Securities; and (bii) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligationsObligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration acceleration, call for redemption, upon a Purchase Notice, a Change in Control Offer, purchase or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing If payment is not made when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors each Guarantor shall be jointly and severally obligated to pay the same immediatelyindividually whether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 6.02. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations An Event of Default under this Indenture or the Securities shall constitute an Event of Default under this Guarantee, and shall entitle the Holders to accelerate the Obligations of each Guarantor hereunder shall be unconditional, irrespective in the same manner and to the same extent as the Obligations of the validity, regularity Company. This Guarantee is intended to be superior to or enforceability pari passu in right of payment with all indebtedness of the Notes or this Indenture, the absence Guarantors and each Guarantor's Obligations are independent of any action to enforce the same, any waiver or consent by any Holder Obligation of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same Company or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeGuarantor.
Appears in 2 contracts
Samples: Indenture (Yellow Corp), Yellow Roadway Corp
Guarantees. SECTION 1201. Guarantee. Subject to this Article 10Twelve, each of to the Guarantors herebyextent provided pursuant to Section 301 hereof, jointly the Guarantor hereby fully and severallyunconditionally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of of, this Indenture, the Notes Securities or the obligations of the Company hereunder or thereunder, that: (ai) the principal and of, premium, if any, of, and interest, if any, on, interest on the Notes will Securities shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interestpremium, if any, on, and interest on the NotesSecurities, if any, if lawfullawful (subject in all cases to any applicable grace period provided herein), and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will shall be promptly paid in full or performedfull, all in accordance with the terms hereof and thereof; and (bii) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors Guarantor shall be jointly and severally obligated to pay the same immediately. Each The Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors Guarantor hereby agree that their agrees that, to the maximum extent permitted under applicable law, its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorthe Guarantor. Each Subject to Section 507, the Guarantor hereby waives 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 covenant covenants that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes Securities and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the GuarantorsGuarantor, any amount paid by either any of them to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each The Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each The Guarantor further agrees that, as between the GuarantorsGuarantor, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Five for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such obligations as provided in Article 6 Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 2 contracts
Samples: NYSE Holdings LLC, NYSE Holdings LLC
Guarantees. (a) Subject to this Article 1013, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note 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 Notes or held thereby and the obligations of the Company hereunder or and thereunder, that: (a) the principal of and premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturitythe Maturity Date, by acceleration, redemption upon repurchase or otherwise, and interest on the overdue principal of and premium, if any of, and interest, if any, on, (to the extent permitted by law) interest on the Notes, if any, if lawful, and all other payment obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturitythe Maturity Date, by acceleration acceleration, upon repurchase or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee An Event of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Default with respect to any provisions hereof or thereofthe Notes under this Indenture shall constitute an event of default under the Guarantees, and shall entitle the recovery Holders to accelerate the obligations of any judgment against the Company, any action to enforce Guarantors hereunder in the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in manner and to the event of insolvency or bankruptcy same extent as the obligations of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 2 contracts
Samples: Supplemental Indenture (On Semiconductor Corp), Indenture (Whiting Petroleum Corp)
Guarantees. Subject With respect to each series of Securities to which this Article 1011 is expressly made applicable, each of the Guarantors hereby, jointly Guarantor hereby unconditionally and severally, unconditionally irrevocably guarantees to each Holder of a Note 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 Notes or the obligations of the Company hereunder or thereunder, that: assigns (ai)(a) the full and punctual payment of principal and premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full Securities of such Holder when due, whether at maturity, by acceleration, by redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other monetary obligations of the Company to the Holders or and the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with under this Indenture and the terms hereof and thereof; Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities and (ii) in the case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewalrenewal (all of the foregoing being hereinafter collectively called the “Guarantees”). The Guarantor waives presentation to, whether at stated maturitydemand of, payment from and protest to the Company of any of the Guarantees and also waives notice of protest for nonpayment. The Guarantor waives notice of any default under the Securities or the Guarantees. The Guarantees hereunder shall not be affected by acceleration (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Securities or any other agreement or otherwise. In addition to ; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the foregoingterms or provisions of this Indenture, each Guarantor also agrees, unconditionally and jointly and severally with each the Securities or any other Guarantor, to pay agreement; (d) the release of any and all expenses (including, without limitation, counsel fees and expenses) incurred security held by any Holder or the Trustee under this Indenture for the Guarantees or any of them; (e) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guarantees or (f) any change in enforcing any rights under a Subsidiary Guarantee with respect to a the ownership of the Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each The Guarantor further agrees that this is its Guarantees hereunder constitute a guarantee of payment payment, performance and compliance when due (and not a guarantee of collection). The Guarantors Guarantor hereby agree agrees that their its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or failure to enforce the provisions of the validity, regularity or enforceability of the Notes any Security or this Indenture, or any waiver, modification, consent or indulgence granted to the absence Company with respect thereto (unless the same shall also be provided the Guarantor), by the Holder of any action to enforce Security or the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofTrustee, the recovery of any judgment against the Company, Company or any action to enforce the same same, or any other circumstance circumstances which might may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided that, notwithstanding the foregoing, no such waiver, modification, indulgence or circumstance shall, without the consent of the Guarantor, increase the principal amount of a Security or the interest rate thereon or increase any premium payable upon redemption thereof. The Guarantees shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of a guarantor. Each Guarantor hereby waives diligencesetoff, presentmentcounterclaim, demand of payment, filing of claims with a court in the event of insolvency recoupment or bankruptcy termination whatsoever or by reason of the Companyinvalidity, any right to require a proceeding first against illegality or unenforceability of the CompanyGuarantees or otherwise. Without limiting the generality of the foregoing, protest, notice and all demands whatsoever and covenant the Guarantor covenants that this Subsidiary Guarantee the Guarantees shall not be discharged except or impaired or otherwise affected by complete performance the failure of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any court waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of the Guarantor or would otherwise operate as a discharge of the Guarantor as a matter of law or equity. The Guarantor further agrees that the Guarantees shall continue to return to be effective or be reinstated, as the Companycase may be, the Guarantors if at any time payment, or any custodianpart thereof, trusteeof principal, liquidator premium, if any, or other similar official acting in relation to either interest on any Security is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the Guarantorsforegoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against the Guarantor by virtue hereof, upon the failure of the Company to pay the principal of, premium on, if any, or interest on any Security when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other obligation under the Securities, the Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid amount of such obligations under such Securities, (ii) accrued and unpaid interest on such obligations under such Securities (but only to the extent not prohibited by law) and (iii) all other monetary obligations with respect to such Securities of the Company to the Holders and the Trustee. The Guarantor will be subrogated to all rights of the Holders against the Company in respect of any amount paid by either the Guarantor pursuant to the Trustee or such Holderprovisions of the Guarantee; provided, this Subsidiary Guaranteehowever, to that the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it 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, premium on, if any, and interest on such Securities shall have been paid in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed herebyfull. Each The Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed with respect to the Securities hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed herebywith respect to such Securities, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofherein, such obligations the Guarantees (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose purposes of this Subsidiary GuaranteeArticle 11. The Guarantors shall have Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the right to seek contribution from Trustee or any non-paying Guarantor so long as the exercise of such right does not impair the Holder in enforcing any rights of the Holders under the Guaranteethis Article 11.
Appears in 2 contracts
Samples: First Supplemental Indenture (Stanley Works), First Supplemental Indenture (Stanley Works)
Guarantees. Subject to the provisions of this Article 10, each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Note 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 Notes or the obligations other Obligations of the Company Issuers hereunder or thereunder, that: (a) the principal of, premium and premiuminterest (including Additional Interest, if any, of, and interest, if any, on, ) on the Notes will shall be promptly paid in full when due, whether at maturitythe maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, premium and interestinterest (including Additional Interest, if any, on, ) on the Notes, if any, if to the extent lawful, and all other obligations Obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will under this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof of this Indenture and thereofthe Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their to the fullest extent permitted by applicable law, its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofof this Indenture and the Notes, the recovery of any judgment against the CompanyIssuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each To the fullest extent permitted by applicable law, each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuers, any right to require a proceeding first against the CompanyIssuers, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers or Guarantors, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuers or the Guarantors, any amount paid by either any of them to the Trustee or such Holder, this Subsidiary Guaranteethese Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteethese Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guaranteethese Guarantees. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees. Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against an Issuer for liquidation, reorganization, should such Issuer become insolvent or make an assignment for the Guaranteebenefit of creditors or should a receiver or trustee be appointed for all or any significant part of the 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 the Notes or Guarantees, 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. The Guarantee issued by any Guarantor shall be a general unsecured senior obligation of such Guarantor and shall be pari passu in right of payment with all existing and future Senior Indebtedness of such Guarantor, if any. Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. Notwithstanding anything to the contrary, any direct or indirect parent company of the Company may guarantee the Notes and become a Guarantor hereunder.
Appears in 2 contracts
Samples: Indenture (Atlas Resource Partners, L.P.), Supplemental Indenture (Atlas Energy Resources, LLC)
Guarantees. Subject to the provisions of this Article 1011, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note 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 Notes or the obligations Obligations of the Company Issuers hereunder or thereunder, that: (a) the principal of, premium, interest and premiumLiquidated Damages, if any, of, and interest, if any, on, on the Notes will shall be promptly paid in full when due, whether at maturitythe maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal and of, premium, if any of, interest and interestLiquidated Damages, if any, on, on the Notes, if any, if lawful, and all other obligations Obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will under this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof of this Indenture and thereofthe Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofof this Indenture and the Notes, the recovery of any judgment against the CompanyIssuers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorSubsidiary Guarantor. Each To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuers, any right to require a proceeding first against the CompanyIssuers, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee the Guarantees shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers or Subsidiary Guarantors, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuers or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guaranteethese Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteethese Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event 101 of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guaranteethese Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteethese Guarantees.
Appears in 2 contracts
Samples: Indenture (El Paso Energy Partners Lp), First Reserve Gas LLC
Guarantees. Subject to this Article 10Each Subsidiary Guarantor hereby fully, each of the Guarantors herebyunconditionally and irrevocably Guarantees, as primary obligor and not merely as surety, jointly and severallyseverally with each other Subsidiary Guarantor, unconditionally guarantees to each Holder of a Note authenticated the Securities the full and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, and interest on of the overdue principal and premium, if any of, and interestpremium, if any, on, and interest (including Additional Interest) on the Notes, if any, if lawful, Securities and all other obligations of the Company under this Indenture (including interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Holders Company or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) (all the Trustee hereunder foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent permitted by law) that the Guaranteed Obligations may be extended or thereunder renewed, in whole or in part, without notice or further assent from it, and that it will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of remain bound under this Indenture notwithstanding any extension of time of payment or renewal of any Notes Guaranteed Obligation. Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set off, counterclaim, reduction or diminution of any of such other obligations, that same will be promptly paid kind or nature. To evidence its Subsidiary Guarantee set forth in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoingthis Section 11.1, each Subsidiary Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor hereby agrees that this is Indenture (or a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder supplemental indenture to this Indenture) shall be unconditional, irrespective executed on behalf of the validity, regularity or enforceability such Subsidiary Guarantor by an Officer of the Notes or such Subsidiary Guarantor. Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set forth in this Indenture, Section 11.1 shall remain in full force and effect notwithstanding the absence of the endorsement of any action notation of such Subsidiary Guarantee on the Securities. If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authenticates the Securities, the Subsidiary Guarantee shall be valid nevertheless. Upon execution of a supplemental indenture to enforce the same, any waiver or consent this Indenture by any Holder Subsidiary Guarantor in the form of Exhibit C hereto, the Subsidiary Guarantee set forth in this Indenture and such supplemental indenture shall be deemed duly delivered, without any further action by any Person, on behalf of such Subsidiary Guarantor. Following the Issue Date, the delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Notes with respect to any provisions hereof or thereof, Subsidiary Guarantees set forth in this Indenture on behalf of the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorSubsidiary Guarantors. Each Subsidiary Guarantor hereby waives diligence, presentmentpresentation to, demand of paymentpayment from and protest to the Company of any of the Guaranteed Obligations, 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, Company and also waives notice and all demands whatsoever and covenant of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent permitted by law) notice of any default under the Securities or the Guaranteed Obligations. Each Subsidiary Guarantor further agrees that this its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations. The Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company or any action to enforce the same. Except as set forth under Section 11.2, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the Guaranteed Obligations of the Subsidiary Guarantors herein shall not be discharged except or impaired or otherwise affected by complete performance (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Securities, the Subsidiary Guarantees or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the obligations contained in the Notes and terms or provisions of this Indenture. If , the Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee is required for the Guaranteed Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Subsidiary Guarantor, (f) any change in the ownership of the Company; (g) by any court default, failure or otherwise delay, willful or otherwise, in the performance of the Guaranteed Obligations, or (h) by any other act or thing or omission or delay to return to the Company, the Guarantors do any other act or thing which may or might in any custodian, trustee, liquidator manner or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to extent vary the Holders in respect risk of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, or would otherwise operate as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity a discharge of the obligations guaranteed hereby may be accelerated Subsidiary Guarantor as provided in Article 6 hereof for the purposes a matter of this Subsidiary Guarantee, notwithstanding any stay, injunction law or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteeequity.
Appears in 2 contracts
Samples: Indenture (Deluxe Corp), Deluxe Corp
Guarantees. Subject to this Article 10, each Each of the Guarantors hereby, jointly and severally, unconditionally guarantees guarantees, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assignsNoteholder, irrespective of the validity and enforceability of this IndentureAgreement, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal of and premium, if any, of, premium and interest, if any, on, interest on the Notes will shall be promptly paid in full when due, subject to any applicable grace period, whether at maturityStated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of (and any premium, if any of, ) and interest, if any, on, interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee Noteholders hereunder or thereunder will shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due due, subject to any applicable grace period, of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this IndentureAgreement, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Noteholder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor hereby waives 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 covenant that covenants that, subject to Section 13.04, this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this IndentureAgreement. If any Holder or the Trustee Noteholder is required by any court or otherwise to return to the CompanyCompany or Guarantors, the Guarantors or any custodianCustodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either the Company or the Guarantor to the Trustee or such HolderNoteholder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effecteffect as to such amount only. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Noteholders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the TrusteeNoteholders, on the other hand, (xa) the maturity Maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Section 11 for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, hereby and (yb) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofSection 11, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders Noteholders under the GuaranteeGuarantees.
Appears in 2 contracts
Samples: Purchase Agreement (American Coin Merchandising Inc), Purchase Agreement (American Coin Merchandising Inc)
Guarantees. Subject to the provisions of this Article 1012, each of the Guarantors herebyGuarantor, jointly and severally, hereby irrevocably and unconditionally guarantees (each a "Guarantee"), on a senior basis, to each Holder of a Note 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 Notes or the obligations of the Company hereunder or thereunder, that: that (a) the principal and of, premium, if any, of, and interestinterest and Additional Interest, if any, on, on the Notes will shall be promptly duly and punctually paid in full when due, whether at maturity, by acceleration, redemption acceleration or otherwise, and interest on the overdue principal principal, and premium, if any ofany, and (to the extent permitted by law) interest on any interest, if any, on, on the Notes, if any, if lawful, Notes and all other obligations Obligations of the Company to the Holders or the Trustee hereunder or thereunder will under the Notes or under the Collateral Documents (including fees, expenses or other Obligations) shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to otherwise (collectively, the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary "Guarantee with respect to a GuarantorObligations"). Failing payment when due of any amount so guaranteed Guarantee Obligation or failing performance of any performance so guaranteed other Obligation of the Company to the Holders, for whatever reason, the Guarantors each Guarantor shall be jointly and severally obligated to pay pay, or to perform or to cause the performance of, the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under this Guarantee, and shall entitle the Trustee or the Holders to accelerate the Guarantee Obligations of each Guarantor hereunder in the same manner and to the same extent as the Company Obligations. Each Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations its Guarantee Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery entry of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, and relinquishes (a) any right to require the Trustee, the Holders or the Company (each, a proceeding first "Benefited Party") to proceed against the Company, protestthe Subsidiaries or any other Person or to proceed against or exhaust any security held by a Benefited Party at any time or to pursue any other remedy in any secured party's power before proceeding against such Guarantor; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional Indebtedness or Obligation or of any action or non-action on the part of the Guarantors, the Company, the Subsidiaries, any Benefited Party, any creditor of the Guarantors, the Company or the Subsidiaries or on the part of any other Person whomsoever in connection with any Obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Benefited Party, including but not limited to an election to proceed against the Guarantors for reimbursement; (e) any defense based upon any statute or rule of law which provides that the Obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Benefited Party's election in any proceeding instituted under the Bankruptcy Law of the application of Section 1111(b)(2) of the Bankruptcy Code; and all demands whatsoever and (g) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code. The Guarantors hereby covenant that this Subsidiary Guarantee the Guarantees shall not be discharged except by complete performance payment in full of all Guarantee Obligations, including the obligations contained in principal, premium, if any, and interest on the Notes and all other costs provided for under this Indenture, the Collateral Documents or as provided in Section 8.01. If any Holder or the Trustee is required by any court or otherwise to return to either the CompanyCompany or the Guarantors, the Guarantors or any custodian, trustee, liquidator trustee or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either the Company or the Guarantors to the Trustee or such Holder, this Subsidiary Guaranteethe Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor of the Guarantors agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed Guarantee Obligations hereby until payment in full of all obligations guaranteed herebysuch Obligations. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteehereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed herebyGuarantee Obligations, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 2 contracts
Samples: Security Agreement and Fixture Filing (Trump Indiana Inc), Priority Intercreditor Agreement (Trump Indiana Inc)
Guarantees. Subject The Guarantors (as defined in the Indenture (the “Indenture”) referred to in the Note upon which this Article 10, notation is endorsed and each hereinafter referred to as a “Guarantor”) have unconditionally guaranteed on a senior secured basis (such guarantee by each Guarantor being referred to herein as the “Guarantee”) (i) the due and punctual payment of the Guarantors hereby, jointly principal of and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, interest on the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration, redemption acceleration or otherwise, otherwise and interest on the overdue principal and premiumprincipal, if any ofany, and interest on any interest, if any, on, to the Notes, if any, if extent lawful, of the Notes and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; set forth in of the Indenture and (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise. In addition Each Guaranty will be limited to an amount not to exceed the maximum amount that can be guaranteed by such Guarantor after giving effect to all of its other contingent and fixed liabilities without rendering such Guaranty, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally. The obligations of the undersigned to the foregoing, each Guarantor also agrees, unconditionally Holders of the Notes and jointly to the Trustee pursuant to the Guarantee and severally with each other Guarantor, the Indenture are expressly set forth in Article X of the Indenture and reference is hereby made to pay any the Indenture for the precise terms of the Guarantee and all expenses (includingother of the provisions of the Indenture to which this Guarantee relates. No past, without limitationpresent or future stockholder, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due director, officer, employee or incorporator, as such, of any amount so guaranteed or any performance so guaranteed for whatever reason, of the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective have any liability for any obligation of the validity, regularity or enforceability of Guarantors under the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by Indenture or for any court or otherwise to return to the Companyclaim based on, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofby reason of, such obligations (whether or not due their creation. Each Holder of a Note by accepting a Note waives and payable) shall forthwith become due releases all such liability. The waiver and payable by release are part of the Guarantors consideration for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights issuance of the Holders under the Guarantee.Guarantees. [INSERT SUBSIDIARY GUARANTOR SIGNATURE BLOCKS AS APPROPRIATE]
Appears in 2 contracts
Samples: Webcraft LLC, Webcraft LLC
Guarantees. (a) Subject to this Article 1013, each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees guarantee to each Holder of a Note 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 Notes or held thereby and the obligations of the Company hereunder or and thereunder, that: (ai) the principal of and premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturitythe Maturity Date, by acceleration, redemption upon redemption, upon prepayment or otherwise, and interest on the overdue principal of and premium, if any of, and interest, if any, on, (to the extent permitted by law) interest on the Notes, if any, if lawfuland the Settlement Amounts upon exchange will be promptly paid and/or delivered in full when due upon exchange, and all other payment obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms hereof and thereof; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturitythe Maturity Date, by acceleration acceleration, upon redemption, upon prepayment or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be will be, jointly and severally severally, obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee An Event of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Default with respect to any provisions hereof or thereofthe Notes under this Indenture shall constitute an event of default under the Guarantees, and shall entitle the recovery Holders to accelerate the obligations of any judgment against the Company, any action to enforce Guarantors hereunder in the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in manner and to the event of insolvency or bankruptcy same extent as the obligations of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 2 contracts
Samples: Indenture (Carnival PLC), Supplemental Indenture (Carnival PLC)
Guarantees. Subject Buyer recognizes that Seller and certain of its Subsidiaries have provided, and prior to this Article 10the Closing may provide, each credit support to the Business, the Purchased Assets or the Purchased Entities pursuant to guarantees, letters of credit, bonds, sureties and other credit support or assurances provided by Seller or its Subsidiaries in support of any obligation of the Guarantors herebyBusiness that are listed on Schedule 6.14 of the Disclosure Letter (the “Business Guarantees”). Buyer and Seller shall use their commercially reasonable efforts to obtain from the respective beneficiary, jointly in form and severallysubstance reasonably satisfactory to Seller, unconditionally guarantees on or before the Closing Date, valid and binding written releases of Seller and its Subsidiaries, as applicable, from any Liability, whether arising before, on or after the Closing Date, under any Business Guarantees to each Holder the extent relating to the Business, the Purchased Assets or the Assumed Liabilities, which release shall be effective as of the Closing, including, in the case of Buyer and its Subsidiaries, as applicable, by providing substitute guarantees, furnishing letters of credit, instituting escrow agreements, posting surety or performance bonds or making other arrangements as the beneficiary may reasonably request. If any Business Guarantee has not been released as of the Closing Date, then Buyer and Seller shall continue to use their commercially reasonable efforts after the Closing to cause as promptly as practicable the complete and unconditional release of Seller and its Subsidiaries under such Business Guarantee to the extent relating to the Business, the Purchased Assets or the Assumed Liabilities. Notwithstanding anything to the contrary herein, the Parties acknowledge and agree that at any time on or after the Closing Date, Seller and its Subsidiaries may, in such Person’s sole discretion, take any action to terminate, obtain release of or otherwise limit their Liability under any and all outstanding Business Guarantees; provided that no such action results in a breach of any Contract or Liability (or acceleration of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective Liability) of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes Buyer or any of such other obligationsits Affiliates. Buyer shall, that same will and hereby agrees to, indemnify and hold harmless Seller and its Subsidiaries from and after the Closing for any amounts required to be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay under any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, Business Guarantees to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation exclusively relating to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity operation or ownership of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for Business or the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction Purchased Assets after the Closing Date or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeAssumed Liabilities.
Appears in 2 contracts
Samples: Purchase Agreement (Welbilt, Inc.), Purchase Agreement (PENTAIR PLC)
Guarantees. Subject to this Article 10(a) For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Guarantors, together with each Subsidiary of the Company which in accordance with Section 11.08 is required in the future to guarantee the Obligations of the Company and the Guarantors herebyunder the Securities, the Guarantees and this Indenture upon execution of a supplemental indenture, hereby jointly and severally, severally and irrevocably and unconditionally guarantees to the Trustee and to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and or enforceability of this Indenture, the Notes Indenture or the obligations Securities or the Obligations of the Company hereunder or thereunderand the Guarantors under this Indenture, that: (ai) the principal and of, premium, if any, of, and any interest, if anyon the Securities (including, onwithout limitation, any interest that accrues after the Notes filing of a proceeding of the type described in Sections 6.01(g) and (h)) and any fees, expenses and other amounts owing under this Indenture will be promptly duly and punctually paid in full when due, whether at maturityStated Maturity, by acceleration, redemption call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase or otherwise, and interest on the overdue principal and premium, if any of, and (to the extent permitted by law) interest, if any, on, on the Notes, if any, if lawfulSecurities and any other amounts due in respect of the Securities, and all other obligations Obligations of the Company and the Guarantors to the Holders of the Securities under this Indenture and the Securities, whether now or the Trustee hereunder or thereunder hereafter existing, will be promptly paid in full or performed, all strictly in accordance with the terms hereof and thereofof the Securities; and (bii) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligationsObligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration acceleration, call for redemption, upon Change of Control Offer, Asset Sale Offer, purchase or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing If payment is not made when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors each Guarantor shall be jointly and severally obligated to pay the same immediatelyindividually whether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 6.02. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations An Event of Default under this Indenture or the Securities shall constitute an Event of Default under this Guarantee, and shall entitle the Holders to accelerate the Obligations of each Guarantor hereunder shall be unconditional, irrespective in the same manner and to the same extent as the Obligations of the validity, regularity Company. This Guarantee is intended to be superior to or enforceability pari passu in right of payment with all Indebtedness of the Notes or this Indenture, the absence Guarantors and each Guarantor s Obligations are independent of any action to enforce the same, any waiver or consent by any Holder Obligation of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same Company or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeGuarantor.
Appears in 2 contracts
Samples: Supplemental Indenture (Grey Wolf Inc), Di Industries Inc
Guarantees. Subject Purchaser shall use its commercially reasonable efforts to this Article 10cause itself, one of its Affiliates or the Company to be substituted in all respects for Seller and any of its Affiliates, and for Seller and its Affiliates to be released, effective as of the Closing, in respect of, or otherwise terminate (and cause Seller and its Affiliates to be released in respect of), all obligations of Seller and any of its Affiliates under each of the Guarantors herebyguarantees, jointly indemnities, letters of credit, letters of comfort, commitments, understandings, agreements and severally, unconditionally guarantees to each Holder other obligations of a Note authenticated and delivered by the Trustee and such Persons related to the Trustee Company that are set forth on Section 5.10 of the Seller Disclosure Letter (collectively, the “Substituted Guarantees”). For any of the guarantees, indemnities, letters of credit, letters of comfort, commitments, understandings, agreements and other obligations of Seller and any of their respective Affiliates related to the Company for which Purchaser or the Company, as applicable, is not substituted in all respects for Seller and its successors Affiliates (or for which Seller and assigns, irrespective its Affiliates are not released) effective as of the validity Closing and enforceability of this Indenture, the Notes or the obligations that cannot otherwise be terminated effective as of the Closing without causing an adverse effect on the Company hereunder or thereunder(with Seller and its Affiliates to be released in respect thereof), that: (a) the principal Seller shall, or shall cause its applicable Affiliates, to keep in place such Substituted Guarantees (“Continuing Guarantees”), (b) Purchaser shall continue to use its commercially reasonable efforts and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of shall cause the Company to use its commercially reasonable efforts to effect such substitution or termination and release with respect to the Holders or Continuing Guarantees as promptly as practical after the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; Closing and (bc) in case Purchaser or Parent shall reimburse Seller for all amounts paid or incurred by Seller or its Affiliates to the extent any guarantees, indemnities, letters of any extension credit, letters of time of payment or renewal of any Notes comfort, commitments, understandings, agreements and other obligations are called upon and Seller or any of its Affiliates make any payment or are obligated to reimburse the issuing thereof. In addition, commencing on the date that is six months after the Closing Date, on the last Business Day of each three month period following the Closing Date until such other obligationstime as no Continuing Guarantees remain outstanding, that same will be promptly paid Purchaser shall pay Seller or its designee a fee in full when due respect of each Continuing Guarantee equal to the amount of fees Seller or performed such applicable Affiliate would have incurred if it posted a letter of credit in accordance with the terms respect of the amounts covered by such Continuing Guaranty for such three month period (or, with respect to any Continuing Guarantee outstanding for a portion, but not all, of such three month period, for such portion of such three month period). Without limiting the foregoing, neither Purchaser nor any of its Affiliates shall extend or renew any Contract containing or underlying a Continuing Guarantee unless, prior to or concurrently with such extension or renewal, whether at stated maturity, by acceleration Purchaser or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses one of its Affiliates (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against including the Company, ) is substituted in all respects for Seller and any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorits Affiliates under such Continuing Guarantee. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the For purposes of this Subsidiary Section 5.10, “commercially reasonable efforts” will be limited to offering to provide to the applicable beneficiary of a Substituted Guarantee, notwithstanding any stayand providing such beneficiary, injunction or such replacement guarantees, indemnities, letters of credit, letters of comfort, commitments, understandings, agreements and other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided are substantially similar in Article 6 hereof, such obligations (whether or not due form and payable) shall forthwith become due and payable by substance to the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeSubstituted Guarantees.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Nextera Energy Inc), Stock Purchase Agreement (Gulf Power Co)
Guarantees. Subject to this Article 10, each of the Guarantors herebyEach Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assignsassigns as primary obligor and not merely as a surety, irrespective on a senior basis, the performance and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all obligations of Terra Capital under this Indenture and the Notes whether for payment of principal of or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by the Guarantors being herein called the “Guaranteed Obligations”). The Guarantors will agree to pay, in addition to the amount stated above, any and all expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under the Guarantees. Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Guarantor and that such Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Guarantor waives presentation to, demand of, payment from and protest to Terra Capital of any of the validity Guaranteed Obligations and enforceability also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Terra Capital or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (f) any change in the ownership of such Guarantor. Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Sections 8.2, 10.2 and 10.6, the obligations of the Company each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or thereundertermination for any reason, that: (a) the principal and premiumincluding any claim of waiver, if anyrelease, ofsurrender, alteration or compromise, and interestshall not be subject to any defense of setoff, if anycounterclaim, onrecoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes will or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantor further agrees that its Guarantee herein shall continue to be promptly paid effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of Terra Capital or otherwise. In furtherance of the foregoing and not in full limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of Terra Capital to pay any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any Guaranteed Obligation, each Guarantor hereby promises to and interest on will, upon receipt of written demand by the overdue principal and premiumTrustee, if any offorthwith pay, and interestor cause to be paid, if anyin cash, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with an amount equal to the terms hereof and thereof; and sum of (bi) in case of any extension of time of payment or renewal of any Notes or any the unpaid amount of such other obligationsGuaranteed Obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally (ii) accrued and jointly and severally with each other Guarantor, to pay any and all expenses unpaid interest on such Guaranteed Obligations (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, but only to the extent theretofore discharged, shall be reinstated in full force not prohibited by law) and effect(iii) all other monetary Guaranteed Obligations of Terra Capital to the Holders and the Trustee. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Guaranteed Obligations guaranteed hereby until payment in full of all obligations guaranteed herebyGuaranteed Obligations. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed Guaranteed Obligations hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteesuch Guarantor’s Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed herebyGuaranteed Obligations, and (y) in the event of any declaration of acceleration of such obligations Guaranteed Obligations as provided in Article 6 hereof6, such obligations the Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose purposes of this Subsidiary GuaranteeSection. The Guarantors shall have Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the right to seek contribution from Trustee or any non-paying Guarantor so long as the exercise of such right does not impair the Holder in enforcing any rights of the Holders under the Guaranteethis Section.
Appears in 2 contracts
Samples: Indenture (Terra Industries Inc), Terra Investment Fund LLC
Guarantees. Subject This Section 1201 and Section 1202 apply to this Article 10, each the Securities of any series of any Subsidiary Issuer to the extent that the form of the Guarantors hereby, jointly Guarantees to be endorsed on such Securities is not otherwise established as contemplated by Section 3.01. The Guarantor hereby fully and severally, unconditionally guarantees to each Holder of a Note Security of each series issued by a Subsidiary Issuer, authenticated and delivered by the Trustee the due and punctual payment of the principal (including any amount due in respect of any Original Issue Discount Security) of and any premium and interest on such Security, and the due and punctual payment of any sinking fund payments provided for pursuant to the Trustee terms of such Security, when and its successors as the same shall become due and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when duepayable, whether at maturitythe Stated Maturity, by declaration of acceleration, redemption call for redemption, early repayment or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwisesuch Security and this Indenture. In addition to the foregoing, each The Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor hereby agrees that this is a guarantee in the event of payment and not a guarantee an Event of collection. The Guarantors hereby agree that their Default 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 the validity, regularity or enforceability any Security of the Notes any series or this Indenture, the absence of any action failure to enforce the sameprovisions of any Security of any series or this Indenture, any waiver waiver, modification or consent indulgence granted to the applicable Subsidiary Issuer with respect thereto, by any the Holder of the Notes with respect to any provisions hereof or thereof, the recovery Security of any judgment against series of such Subsidiary Issuer or the CompanyTrustee, any action to enforce the same or any other circumstance circumstances which might may otherwise constitute a legal or equitable discharge or defense of a guarantorsurety or Guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantor, increase the principal amount of any Security of a Subsidiary Issuer or the Interest rate thereon or increase any premium payable upon redemption thereof. Each The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency merger or bankruptcy of the Companyapplicable Subsidiary Issuer, any right to require a proceeding first against such Subsidiary Issuer, the Companybenefit of discussion, protest, protest or notice with respect to any Security of such Subsidiary Issuer or the indebtedness evidenced thereby or with respect to any sinking fund payment required pursuant to the terms of such Security issued under this Indenture and all demands whatsoever whatsoever, and covenant covenants that this Subsidiary Guarantee shall will not be discharged with respect to such Security except by complete performance payment in full of the obligations contained principal thereof and any premium and interest thereon or as provided in the Notes and this IndentureArticle Four or Section 801. If any Holder or the Trustee is required by any court or otherwise to return to the Companyany Subsidiary Issuer, the Guarantors Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to either the Company such Issuer or the Guarantors, Guarantor any amount paid by either such Issuer or the Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, Guarantee to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each The Guarantor further agrees that, as between the GuarantorsGuarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity Maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 Five hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby. The Guarantor also agrees, to pay any and all reasonable costs and expenses (yincluding reasonable attorneys' fees and expenses) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable incurred by the Guarantors for the purpose of Trustee or any Holders in enforcing any rights under this Subsidiary Guarantee. The Guarantors Guarantee hereby waives any right of set-off which the Guarantor may have against the Holder of any Security of a Subsidiary Issuer in respect of any amounts which are or may become payable by such Holder to such Subsidiary Issuer. The Guarantor shall have the right be subrogated to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the all rights of the Holders of any series of Securities and the Trustee against the applicable Subsidiary Issuer in respect of any amounts paid to such Holders and the Trustee by the Guarantor pursuant to the provisions of the Guarantees; 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, premium, if any, and interest, if any, on all of the Securities of such series shall have been paid in full. No past, present or future stockholder, officer, director, employee or incorporator of the Guarantor shall have any personal liability under the GuaranteeGuarantees set forth in this Section 1201 by reason of his or its status as such stockholder, officer, director, employee or incorporator. The Guarantees set forth in this Section 1201 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 2 contracts
Guarantees. Subject The Guarantors (as defined in the Indenture (the “Indenture”) referred to in the Note upon which this Article 10, notation is endorsed and each hereinafter referred to as a “Guarantor”) have unconditionally guaranteed on a senior unsecured basis (such guarantee by each Guarantor being referred to herein as the “Guarantee”) (i) the due and punctual payment of the Guarantors hereby, jointly principal of and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, interest on the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration, redemption acceleration or otherwise, otherwise and interest on the overdue principal and premiumprincipal, if any ofany, and interest on any interest, if any, on, to the Notes, if any, if extent lawful, of the Notes and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; set forth in of the Indenture and (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise. In addition Each Guaranty will be limited to an amount not to exceed the maximum amount that can be guaranteed by such Guarantor after giving effect to all of its other contingent and fixed liabilities without rendering such Guaranty, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally. The obligations of the undersigned to the foregoing, each Guarantor also agrees, unconditionally Holders of the Notes and jointly to the Trustee pursuant to the Guarantee and severally with each other Guarantor, the Indenture are expressly set forth in Article X of the Indenture and reference is hereby made to pay any the Indenture for the precise terms of the Guarantee and all expenses (includingother of the provisions of the Indenture to which this Guarantee relates. No past, without limitationpresent or future stockholder, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due director, officer, employee or incorporator, as such, of any amount so guaranteed or any performance so guaranteed for whatever reason, of the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective have any liability for any obligation of the validity, regularity or enforceability of Guarantors under the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by Indenture or for any court or otherwise to return to the Companyclaim based on, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofby reason of, such obligations (whether or not due their creation. Each Holder of a Note by accepting a Note waives and payable) shall forthwith become due releases all such liability. The waiver and payable by release are part of the Guarantors consideration for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights issuance of the Holders under Guarantees. [INSERT SUBSIDIARY GUARANTOR SIGNATURE BLOCKS AS APPROPRIATE] EXHIBIT F RESTRICTED CONTROL SECURITY LEGEND Each Restricted Security shall bear a legend in substantially the Guaranteefollowing form: THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO THE COMPANY, (II) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (III) PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT, EXERCISABLE BY EITHER, PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (III) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION TO THE COMPANY, THE TRUSTEE AND THE REGISTRAR REASONABLY SATISFACTORY TO THE COMPANY, IN EACH OF CASES (I) THROUGH (III) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
Appears in 1 contract
Samples: Indenture (USA Direct, LLC)
Guarantees. Subject to this Article 10, each of the Guarantors herebyEach Guarantor unconditionally guarantees, jointly with each other Guarantor and severally, unconditionally guarantees to each Holder of as a Note authenticated primary obligor and delivered by the Trustee and to the Trustee and its successors and assignsnot merely as a surety, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the due and punctual payment by each Borrower (other than itself) of (i) the principal of and premium, if any, ofand interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Advances made to such Borrower, when and interest, if any, on, the Notes will be promptly paid in full when as due, whether at maturity, by acceleration, redemption upon one or more dates set for prepayment or otherwise, and interest on (ii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the overdue principal pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of such Borrower to the Administrative Agent and premium, if any of, each Lender under the Credit Agreement and interest, if any, onthe other Loan Documents (collectively, the Notes“Guaranteed Parties”), if anywhether such amounts shall have accrued prior to, if lawfulon or after the Closing Date, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case the due and punctual payment and performance of any extension all covenants, agreements, obligations and liabilities of time of payment or renewal of any Notes or any of such each Borrower (other obligationsthan itself), that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration monetary or otherwise. In addition , under or pursuant to the foregoingCredit Agreement and the other Loan Documents, and (c) the due and punctual payment and performance of all obligations of each Guarantor also agreesBorrower (other than itself), unconditionally monetary or otherwise, under each Interest Rate Agreement in effect on the Closing Date to which any Lender (or an Affiliate of a Lender) is a party and jointly each Interest Rate Agreement entered into after the Closing Date with any counterparty that is a Lender (or an Affiliate of a Lender) at the time such Interest Rate Agreement is entered into (all the monetary and severally with each other Guarantor, obligations referred to pay any and all expenses in the preceding clauses (including, without limitation, counsel fees and expensesa) incurred by through (c) being collectively called the Trustee under “Obligations”). Anything contained in this Indenture in enforcing any rights under a Subsidiary Guarantee with respect Agreement to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reasonthe contrary notwithstanding, the Guarantors shall be jointly obligations of TRS and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore dischargedROC hereunder, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled limited to any right of subrogation in relation a maximum aggregate amount equal to the Holders greatest amount that would not render such obligations subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any provisions of applicable law (collectively, the “Fraudulent Transfer Laws”), in respect each case after giving effect to all other liabilities of TRS and ROC contingent or otherwise, that are relevant under the Fraudulent Transfer Laws and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights of TRS and ROC, as the case may be, pursuant to (i) applicable law, or (ii) any agreement providing for an equitable allocation among TRS or ROC, as the case may be, and other Affiliates of Rayonier of obligations guaranteed hereby until payment in full of all obligations guaranteed herebyarising under Guarantees by such parties. Each Guarantor further agrees thatthat the Obligations may be extended or renewed, as between the Guarantorsin whole or in part, on the one handwithout notice to or further assent from it, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, that it will remain bound upon its guarantee notwithstanding any stay, injunction extension or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event renewal of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeObligation.
Appears in 1 contract
Samples: Credit Agreement (Rayonier Inc)
Guarantees. (a) Subject to this Article 1013, each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees guarantee to each Holder of a Note 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 Notes or held thereby and the obligations of the Company hereunder or and thereunder, that: (ai) the principal of and premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturitythe Maturity Date, by acceleration, redemption upon Redemption, upon prepayment or otherwise, and interest on the overdue principal of and premium, if any of, and interest, if any, on, (to the extent permitted by law) interest on the Notes, if any, if lawfuland the Settlement Amounts upon exchange will be promptly paid and/or delivered in full when due upon exchange, and all other payment obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms hereof and thereof; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturitythe Maturity Date, by acceleration acceleration, upon Redemption, upon prepayment or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be will be, jointly and severally severally, obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee An Event of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Default with respect to any provisions hereof or thereofthe Notes under this Indenture shall constitute an event of default under the Guarantees, and shall entitle the recovery Holders to accelerate the obligations of any judgment against the Company, any action to enforce Guarantors hereunder in the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in manner and to the event of insolvency or bankruptcy same extent as the obligations of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Samples: Indenture (Carnival PLC)
Guarantees. Subject If Securities of or within a series are specified, as contemplated by Section 301, to this Article 10be guaranteed by the Guarantor, each of then the Guarantors hereby, jointly Guarantor hereby fully and severally, unconditionally guarantees to each Holder of a Note any such Security which is authenticated and delivered by the Trustee and to each Holder of any coupon appertaining to any such Security, if any, and to the Trustee for itself and its successors on behalf of each such Holder, the due and assigns, irrespective punctual payment of the validity and enforceability principal of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, ofon) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and interestincluding any additional interest required to be paid according to the terms of any such Security or any coupon appertaining thereto), if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwiseon each such Security, and interest on the overdue principal due and premium, if punctual payment of any of, and interestsinking fund payment (or analogous obligation), if any, onprovided for with respect to any such Security, when and as the Notes, if any, if lawful, same shall become due and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewalpayable, whether at stated maturityStated Maturity, by acceleration upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise. In addition , according to the foregoingterms thereof and of this Indenture, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing payment of any rights under a Subsidiary Guarantee Additional Amounts, if any, provided for with respect to a Guarantorany such Security as described under Section 1007 hereof (the “Guarantor Obligations”). Failing In case of the failure of the Company or any successor thereto punctually to pay any such principal, premium, interest or sinking fund payment, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon declaration of acceleration, upon tender for repayment at the option of any amount so guaranteed Holder or any performance so guaranteed for whatever reasonotherwise, as if such payment were made by the Guarantors shall be jointly and severally obligated to pay the same immediatelyCompany. Each The Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations its Guarantor Obligations hereunder shall be as if it were principal debtor and not merely surety and shall be absolute and unconditional, irrespective of the identity of the Company, the validity, regularity or enforceability of the Notes any such Security or coupon appertaining thereto or this Indenture, the absence of any action to enforce the same, any waiver or consent by any the Holder of the Notes any such Security or coupon appertaining thereto with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, Company or any action to enforce the same same, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each The Guarantor hereby waives 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 covenant covenants that this Subsidiary Guarantee shall its Guarantees will not be discharged except by complete performance of the its obligations contained in the Notes any such Security or coupon appertaining thereto and in this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Samples: Indenture (CBS Operations Inc.)
Guarantees. Subject to this Article 10, each of the The Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees guarantee on a senior unsecured basis and as primary obligor and not merely as surety to each Holder of a Note authenticated and delivered by the Trustee the full and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, Notes and all other obligations and liabilities of the Company under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Holders Company or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) (all the Trustee hereunder foregoing being hereinafter collectively called the "Obligations"). The Obligations of Subsidiary Guarantors under the Subsidiary Guarantees shall rank equally in right of payment with other Indebtedness of such Subsidiary Guarantor, except to the extent such other Indebtedness is expressly subordinate to the obligations arising under the Subsidiary Guarantee. Each Subsidiary Guarantor further agrees (to the extent permitted by law) that the Obligations may be extended or thereunder will be promptly paid renewed, in full whole or performedin part, all in accordance with the terms hereof without notice or further assent from it, and thereof; and (b) in case of that it shall remain bound under this Article X notwithstanding any extension of time of payment or renewal of any Obligation. Each Subsidiary Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Subsidiary Guarantor; or (f) any change in the ownership of the Company. Each Subsidiary Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of such other obligations, Subsidiary Guarantor as a matter of law or equity. Each Subsidiary Guarantor agrees that same will be promptly paid its Guarantee herein shall remain in full when due force and effect until payment in full of all the Obligations or performed such Subsidiary Guarantor is released from its Guarantee upon the merger or the sale of all the Capital Stock or assets of the Subsidiary Guarantor in compliance with Section 10.2 or otherwise in accordance with the terms of this Indenture. Each Subsidiary Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the extension case may be, if at any time payment, or renewalany part thereof, whether at stated maturity, of principal of or interest on any of the Obligations is rescinded or must otherwise be restored by acceleration any Holder upon the bankruptcy or reorganization of the Company or otherwise. In addition furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay any of the foregoingObligations when and as the same shall become due, each Guarantor also agreeswhether at maturity, unconditionally and by acceleration, by redemption or otherwise, the Subsidiary Guarantors hereby jointly and severally with each other Guarantorpromise to and shall, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred upon receipt of written demand by the Trustee under this Indenture Trustee, forthwith pay, or cause to be paid, in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guaranteecash, to the Holders an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent theretofore discharged, shall be reinstated in full force and effectnot prohibited by law). Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Guarantorssuch Subsidiary Guarantor, on the one hand, and the Holders and the TrusteeHolders, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof this Indenture for the purposes of this Subsidiary Guaranteeits Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, hereby and (y) in the event of any such declaration of acceleration of such obligations as provided in Article 6 hereofObligations, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Subsidiary Guarantor for the purpose purposes of this Subsidiary Guarantee. The Guarantors shall have Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys' fees) incurred by the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of Trustee or the Holders in enforcing any rights under the Guaranteethis Section 10.1.
Appears in 1 contract
Samples: Columbus Energy Corp
Guarantees. Subject to this Article 10, each of the Guarantors herebyEach Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assignsassigns as primary obligor and not merely as a surety, irrespective on an unsecured senior basis the performance and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all obligations of Bucyrus under this Indenture and the Securities whether for payment of principal of or interest on the Securities, expenses, indemnification or otherwise (all such obligations guaranteed by the Guarantors being herein called the "Guaranteed Obligations"). The Guarantors will agree to pay, in addition to the amount stated above, any and all expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under the Guarantees. Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Guarantor and that such Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Guarantor waives presentation to, demand of, payment from and protest to Bucyrus of any of the validity Guaranteed Obligations and enforceability also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Securities or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Bucyrus or any other Person under this Indenture, the Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (f) any change in the ownership of such Guarantor. Each Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Sections 8.2, 10.2 and 10.6, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the Company hereunder invalidity, illegality or thereunderunenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, that: (a) the principal and premiumobligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if anyat any time payment, ofor any part thereof, of any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of Bucyrus or otherwise. In furtherance of the foregoing and interestnot in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, if any, on, upon the Notes will be promptly paid in full failure of Bucyrus to pay any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any Guaranteed Obligation, each Guarantor hereby promises to and interest on will, upon receipt of written demand by the overdue principal and premiumTrustee, if any offorthwith pay, and interestor cause to be paid, if anyin cash, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with an amount equal to the terms hereof and thereof; and sum of (bi) in case of any extension of time of payment or renewal of any Notes or any the unpaid amount of such other obligationsGuaranteed Obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally (ii) accrued and jointly and severally with each other Guarantor, to pay any and all expenses unpaid interest on such Guaranteed Obligations (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, but only to the extent theretofore discharged, shall be reinstated in full force not prohibited by law) and effect(iii) all other monetary Guaranteed Obligations of Bucyrus to the Holders and the Trustee. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Guaranteed Obligations guaranteed hereby until payment in full of all obligations guaranteed herebyGuaranteed Obligations. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed Guaranteed Obligations hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteesuch Guarantor's Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed herebyGuaranteed Obligations, and (y) in the event of any declaration of acceleration of such obligations Guaranteed Obligations as provided in Article 6 hereof6, such obligations the Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose purposes of this Subsidiary GuaranteeSection. The Guarantors shall have Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys' fees) incurred by the right to seek contribution from Trustee or any non-paying Guarantor so long as the exercise of such right does not impair the Holder in enforcing any rights of the Holders under the Guaranteethis Section.
Appears in 1 contract
Samples: Bucyrus International Inc
Guarantees. Subject to this Article 10the limitations set forth in Section 11.04, each of the Guarantors hereby, jointly and severally, unconditionally guarantees Guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its their respective successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal of and premium, if any, of, and interest, including Additional Interest, if any, on, on the Notes will shall be promptly paid in full when due, subject to any applicable grace period, whether at maturityStated Maturity, by acceleration, redemption redemption, required purchase or repurchase or otherwise, and interest on the overdue principal of and interest on premium, if any ofany, and interest, if any, on, the Notesincluding Additional Interest, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturityStated Maturity, by acceleration acceleration, redemption, required purchase or repurchase or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due due, subject to any applicable grace period, of any amount so guaranteed Guaranteed or any performance so guaranteed Guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the CompanyCompany or any Guarantor, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 CompanyCompany or another Guarantor, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee the Note Guarantees shall not be discharged except by complete performance of the obligations contained in the Notes and this IndentureIndenture Documents. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Company or any custodianof the 105 Guarantors, trustee, liquidator or any Custodian or other similar official acting in relation to either the Company or any of the Guarantors, any amount paid by either to the Trustee or to such Holder, this Subsidiary Guaranteethe Note Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed Guaranteed hereby until payment in full of all obligations guaranteed Guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed Guaranteed hereby may be accelerated as provided in Article 6 hereof 7 for the purposes of this Subsidiary Guaranteethe Note Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, Guaranteed hereby and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof7, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guaranteethe Note Guarantees. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Trustee or the Holders under the GuaranteeNote Guarantees.
Appears in 1 contract
Guarantees. Subject to this Article 10By its execution hereof, each of the Guarantors herebyacknowledges and agrees that it receives substantial benefits from the Issuers and that such Guarantor is providing its Guarantee for good and valuable consideration, including, without limitation, such substantial benefits and services. Accordingly, subject to the provisions of this Article XI, each Guarantor, including present and future Subsidiaries (other than any Excluded Foreign Subsidiaries, except to the extent required by Section 4.15 hereof) hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis to each Holder of a Note 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 Notes or the obligations of the Company hereunder or thereunder, assigns that: (ai) (A) the principal of and premium, if any, of, and interestInterest (and Liquidated Damages, if any, on, ) on the Notes will shall be promptly duly and punctually paid in full when due, whether at maturity, by acceleration, redemption call for redemption, upon a Change of Control Offer, an Asset Sale Offer or otherwise, and interest (B) Interest on the overdue principal of and premium, if any ofany, and interest(to the extent permitted by law) Interest on any Interest, if any (and Liquidated Damages, if any), on, on the Notes, if any, if lawfulNotes shall be promptly paid in full, and (C) all other obligations Obligations of the Company Issuers to the Holders or the Trustee hereunder under the Notes, this Indenture, the Collateral Agreements and the Registration Rights Agreement (including fees, expenses or thereunder will otherwise) shall be promptly duly and punctually paid in full or when due and performed, all in accordance with the terms hereof and thereof; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same will shall be promptly duly and punctually paid in full when due or and performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration acceleration, call for redemption, upon a Change of Control Offer, an Asset Sale Offer or otherwise. In addition , subject, however, in the case of clauses (i) and (ii) above, to the foregoinglimitations set forth in Section 11.6 hereof (such Obligations guaranteed by the Guarantors, collectively, the “Guarantee Obligations”). Subject to the provisions of this Article XI, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations its Guarantee hereunder shall be unconditional, irrespective of the validity, regularity 108 or enforceability of the Notes or Notes, this Indenture, the Collateral Agreements or the Registration Rights Agreement or the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, any releases of the recovery Collateral, the entry of any judgment against any of the CompanyIssuers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims and relinquishes with a court in the event of insolvency or bankruptcy of the Company, respect to its Guarantee Obligations: (a) any right to require the Trustee, the Holders or the Issuers (each, a proceeding first “Benefited Party”) to proceed against the CompanyIssuers, protestthe Subsidiaries or any other Person or to proceed against or exhaust any security held by a Benefited Party at any time or to pursue any other remedy in the Trustee’s power before proceeding against the Guarantors; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) demand, protest and notice of any kind (except as expressly required by this Indenture); (d) any defense based upon an election of remedies by a Benefited Party, including but not limited to an election to proceed against the Guarantors for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Benefited Party’s election, in any proceeding instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy Code; and all demands whatsoever and (g) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code. The Guarantors hereby covenant that this Subsidiary Guarantee that, except as otherwise provided in the Guarantees, the Guarantees shall not be discharged except by complete performance payment in full of all Guarantee Obligations, including the obligations contained in principal of and premium, if any, and Interest (and Liquidated Damages, if any) on the Notes and all other costs provided for under this IndentureIndenture or as provided in Article VIII. If any Holder or the Trustee is required by any court or otherwise to return to either the CompanyIssuers or the Guarantors, the Guarantors or any custodian, trustee, liquidator trustee or other similar official acting in relation to either the Company Issuers or the Guarantors, any amount paid by either the Issuers or the Guarantors to the Trustee or such Holder, this Subsidiary Guaranteethe Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor of the Guarantors agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed Guarantee Obligations hereby until payment in full of all obligations guaranteed herebysuch Guarantee Obligations. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby Obligations may be accelerated as provided in Article 6 VI hereof for the purposes of this Subsidiary Guaranteehereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed herebyGuarantee Obligations, and (y) in the event of any declaration of acceleration of such obligations the Obligations as provided in Article 6 VI hereof, such obligations Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Guarantees. Subject to this Article 10Except as otherwise provided herein, each of the Guarantors hereby, jointly ---------- Guarantor hereby fully and severally, unconditionally guarantees to each Holder of a Note Security authenticated and delivered by the Trustee Trustee, and to the Trustee on behalf of such Holder, the due and its successors and assigns, irrespective punctual payment of the validity and enforceability principal of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, such Security and all other obligations of the Company to under this Indenture when and as the Holders same shall become due and payable, whether at the stated maturity, by acceleration, call for redemption, upon a repurchase date or the Trustee hereunder or thereunder will be promptly paid in full or performedotherwise, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of such Security and of this Indenture, including, but not limited to, the extension or renewal, whether at stated maturity, by acceleration or otherwiseobligation of the Company to deliver Common Shares to Holders upon conver sion of the Securities. In addition The Guarantor hereby fully and unconditionally also guaran tees to the foregoing, each Guarantor also agrees, unconditionally Trustee the due and jointly and severally with each other Guarantor, punctual payment of all obligations of the Company to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing Indenture. In case of the failure of the Company punctually to make any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reasonsuch payment, the Guarantors shall Guarantor hereby agrees to cause such payment to be jointly made punctually when and severally obligated to pay as the same immediatelyshall become due and payable, whether at the stated maturity or by acceleration, call for redemption, upon a repurchase date or otherwise, and as if such payment were made by the Company. Each The Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be absolute and unconditional, irrespective of of, and shall be unaffected by, the validity, regularity or enforceability of the Notes such Security or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any release, amendment, waiver or indulgence granted to the Company or the Guarantor or any consent to departure from any requirement of any other circumstance guarantee of all or any of the Securities or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each The Guarantor hereby waives the benefits of diligence, presentment, demand for payment, any requirement that the Trustee or any of paymentthe Holders protect, secure, perfect or insure any security interest in or other lien on any property subject thereto or exhaust any right or take any action against the Company or any other Person or any collateral, 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, protest or notice with respect to such Security or the Indebtedness evidenced thereby and all demands whatsoever whatsoever, and covenant covenants that this Subsidiary Guarantee shall will not be discharged in respect of such Security except by complete performance of the obligations contained in such Security and in such Guarantee. The Guarantor agrees that if, after the Notes occurrence and this Indenture. If any Holder or during the continuance of an Event of Default, the Trustee is required or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Securities, to collect premium, if any, on the Securities, or to enforce or exercise any court other right or otherwise to return remedy with respect to the CompanySecurities, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation Guarantor agrees to either the Company or the Guarantors, any amount paid by either pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders. The Guarantor shall be subrogated to all rights of the Holders of the Securities upon which its Guarantee is endorsed against the Company in respect of any amounts paid by the Guarantor on account of such Holder, this Subsidiary Guarantee, Security pursuant to the extent theretofore dischargedprovisions of its Guarantee or this Indenture; provided, shall be reinstated in full force and effect. Each however, that the Guarantor agrees that it shall not be entitled to enforce or to receive any payment arising out of, or based upon, such right of subrogation until the principal of and premium, if any, on all Securities issued hereunder shall have been paid in relation full. Each 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 part of the Company's assets, and shall, to the Holders fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities, is, pursuant to applicable law, rescinded or reduced in respect amount, or must otherwise be restored or returned by any Holder of the Securities, 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 Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. Any term or provision of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees thatGuarantee to the contrary notwithstand ing, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity aggregate amount of the obligations guaranteed hereby may hereunder shall be accelerated as provided in Article 6 hereof for reduced to the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction extent necessary to prevent such Guarantee from violating or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether becoming voidable under applicable law relating to fraudulent conveyance or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair fraudulent transfer or similar laws affecting the rights of the Holders under the Guaranteecreditors generally.
Appears in 1 contract
Samples: Tyco International LTD /Ber/
Guarantees. Subject to this Article Section 10, each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Note authenticated guarantees, as primary obligor and delivered by the Trustee and not merely as surety, to the Trustee and its successors and assignsCollateral Agent for the benefit of the Secured Parties, irrespective of the validity and enforceability of this IndentureAgreement, the Notes Loans or the obligations of the Company hereunder or thereunderBorrower Obligations, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will Borrower Obligations shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and premium, if any of, and interest, if any, on, interest on the NotesLoans, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will Borrower Obligations shall be promptly paid in full or performed, all in accordance with the terms hereof and thereofhereof; and (b) in case of any extension of time of payment or renewal of any Notes Loans or any of such other obligationsBorrower Obligations, that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. 173 1223206.01A-CHISR02A1223231.10A-CHISR02A - MSW The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this IndentureLoan Documents, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Administrative Agent with respect to any provisions hereof or thereof, the recovery of any judgment against the CompanyBorrower, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives (to the extent permitted by law) diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyBorrower, any right to require a proceeding first against the CompanyBorrower, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary Guarantee shall not be discharged except pursuant to Section 9.20, and any rights of orden and excusión it may have by complete performance virtue of law or otherwise, as provided in Articles 2812 (two thousand eight hundred and twelve), 2814 (two thousand eight hundred and fourteen) and 2816 (two thousand eight hundred and sixteen) of the obligations contained in Mexican Federal Civil Code, and its relative articles of the Notes and this Indenturecivil code of any state of Mexico. If This Section 10 shall continue to be effective or be reinstated, as the case may be, if at any Holder time any payment of any of the Obligations is rescinded or the Trustee is required must otherwise be returned by any court or otherwise to return to the Company, the Guarantors Secured Parties or any custodianother Person upon the insolvency, trusteebankruptcy or reorganization of the Borrower or otherwise, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or all as though such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, payment had not been made. Each Guarantee shall be reinstated remain in full force and effecteffect and continue to be effective should any petition be filed by or against the Borrower for liquidation or reorganization, should the Borrower 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 Borrower’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 Obligations are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Obligations, 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 Obligations 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. In case any provision of this Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. This Guarantee issued by any Guarantor shall be a general senior obligation of such Guarantor and shall be equal in right of payment with all existing and future Senior Indebtedness of such Guarantor, including the 2025 Note Guarantees and the 2026 Note Guarantees of such Guarantor. Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. Each Guarantor, the Administrative Agent and each Lender hereby confirms that it is the intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Guarantee. To effectuate the foregoing intention, the Administrative Agent, each Lender and the Guarantors hereby irrevocably agree that the obligations of each Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Section 10, result in the obligations of such Guarantor under its Guarantee not constituting unlawful financial assistance, a fraudulent conveyance or fraudulent transfer under applicable law. Each Guarantor agrees that it makes a payment under its Guarantee shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until upon 174 1223206.01A-CHISR02A1223231.10A-CHISR02A - MSW payment in full of all obligations guaranteed hereby. Each Obligations under this Agreement to a contribution from each other Guarantor further agrees that, as between the Guarantors, in an amount equal to such other Guarantor’s pro rata portion of such payment based on the one handrespective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP. Any Guarantee of a Guarantor incorporated under the laws of England and Wales shall not apply to the extent that it would result in such Guarantee constituting unlawful financial assistance within the meaning of sections 678 or 679 of the Companies Act 2006. Any Guarantee of a Guarantor incorporated under the laws of Ireland shall not apply to the extent that it would result in such Guarantee constituting financial assistance as prohibited by section 82 of the Irish Companies Act 2014. No Guarantor will exercise any rights that it may now or hereafter acquire against any Loan Party or any other guarantor that arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under this Section 10, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Secured Parties against any Loan Party or any other guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any Loan Party or any other guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until the Termination Conditions have been satisfied. If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the later of the date the Termination Conditions are satisfied and the Holders Maturity Date, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the TrusteeSecured Parties to be credited and applied to the Obligations and all other amounts payable under this Section 10, on whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any Obligations or other handamounts payable under this Section 10 thereafter arising. If (i) any Guarantor shall make payment to the Secured Parties of all or any part of the Obligations, (xii) the maturity Termination Conditions have been satisfied and (iii) the Maturity Date shall have occurred, the Secured Parties will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the Obligations resulting from such payment by such Guarantor. For purposes of this Subsidiary GuaranteeSection 10, notwithstanding any stayeach Guarantor incorporated or formed under the laws of Mexico (each a “Mexican Guarantor”), injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors specifically for the purpose of receiving legal and/or judicial service of process in the United States of America in connection with this Subsidiary Guarantee. The Guarantors shall have Section 10, independently from the Lenders’ right to seek contribution from make and deliver services of process to the Mexican Guarantors in any nonother way or form which is legally valid, hereby designate the following agent and attorney-paying in-fact for such purposes in the United States of America (the “Mexican Process Agent”): NFE The Corporation Corporation Management Trust Trust LLC Company, Center, 0000 Xxxxxx Xxxxxx, Wilmington, New Castle County, Delaware 19801 United States of America Each Mexican Guarantor so long as represents and warrants to the exercise of such right does not impair Lenders that on the rights Closing Date, they have received evidence of the Holders under acceptance by the Guarantee.Mexican Process Agent of its appointment as such by the Mexican Guarantors. 175 1223206.01A-CHISR02A1223231.10A-CHISR02A - MSW Additionally, each Mexican Guarantor covenants and agrees that it will take all necessary and appropriate action in order to grant in favor of the Mexican Process Agent, and within the fifteen (15) calendar days immediately following the Closing Date, a document of authority or power of attorney granted by each Mexican Guarantor in favor of the Mexican Process Agent in full compliance with Mexican law and duly formalized for its validity in Mexico, through such corporate actions as may be required by each Mexican Guarantor’s incorporation documents and bylaws, and in form and substance reasonably acceptable to the Lenders, in order to fully and duly formalize the designation of the Mexican Process Agent as each Mexican Guarantor’s agent for service of process in the United States of America in accordance with Mexican law. Each Mexican Guarantor hereby agrees to provide a copy of the formalization of the designation of the Mexican Process Agent within the twenty-five (25) Business Day immediately following the Closing Date. [Signature Pages Follow] 176
Appears in 1 contract
Guarantees. Subject to this Article 1011, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note 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 Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interestinterest and Special Interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interestinterest and Special Interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee. The Subsidiary Guarantees represent full and unconditional guarantees by the Guarantors on an unsecured and senior subordinated basis of the payment of principal of and interest and Special Interest, if any, on the Notes. Upon conversion of the Notes pursuant to Article 13, the Subsidiary Guarantees will be deemed to be released and extinguished.
Appears in 1 contract
Samples: Supplemental Indenture (Asbury Automotive Group Inc)
Guarantees. Subject to this Article 10(i) In consideration of good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each of the Additional Guarantors herebyhereby irrevocably and unconditionally guarantees, jointly and severally, unconditionally guarantees on a senior subordinated basis (the "Guarantee") to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this the Indenture, the Notes Securities or the obligations of the Company hereunder Issuers under the Indenture or thereunderthe Securities, that: (aw) the principal and premiumpremium (if any) of and interest (and Liquidated Damages, if any, of, and interest, if any, on, ) on the Notes Securities will be promptly paid in full when due, whether at maturitythe maturity or interest payment date, by acceleration, redemption call for redemption, upon an Change of Control Offer, an Asset Sale Offer or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and ; (x) all other obligations of the Company Issuers to the Holders or the Trustee hereunder under the Indenture or thereunder the Securities will be promptly paid in full or performed, all in accordance with the terms hereof of this Supplemental Indenture, the Indenture and thereofthe Securities; and (by) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, that same they will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration acceleration, call for redemption, upon an Offer to Purchase or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors each Additional Guarantor shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee before failure so to pay becomes an Event of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeDefault.
Appears in 1 contract
Samples: Sun International Hotels LTD
Guarantees. Subject The Guarantors (as defined in the Indenture (the “Indenture”) referred to in the Note upon which this Article 10, notation is endorsed and each hereinafter referred to as a “Guarantor”) have unconditionally guaranteed on a senior unsecured basis (such guarantee by each Guarantor being referred to herein as the “Guarantee”) (i) the due and punctual payment of the Guarantors hereby, jointly principal of and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, interest on the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration, redemption acceleration or otherwise, otherwise and interest on the overdue principal and premiumprincipal, if any ofany, and interest on any interest, if any, on, to the Notes, if any, if extent lawful, of the Notes and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; set forth in of the Indenture and (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise. In addition Each Guaranty will be limited to an amount not to exceed the maximum amount that can be guaranteed by such Guarantor after giving effect to all of its other contingent and fixed liabilities without rendering such Guaranty, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally. The obligations of the undersigned to the foregoing, each Guarantor also agrees, unconditionally Holders of the Notes and jointly to the Trustee pursuant to the Guarantee and severally with each other Guarantor, the Indenture are expressly set forth in Article X of the Indenture and reference is hereby made to pay any the Indenture for the precise terms of the Guarantee and all expenses (includingother of the provisions of the Indenture to which this Guarantee relates. No past, without limitationpresent or future stockholder, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due director, officer, employee or incorporator, as such, of any amount so guaranteed or any performance so guaranteed for whatever reason, of the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective have any liability for any obligation of the validity, regularity or enforceability of Guarantors under the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by Indenture or for any court or otherwise to return to the Companyclaim based on, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofby reason of, such obligations (whether or not due their creation. Each Holder of a Note by accepting a Note waives and payable) shall forthwith become due releases all such liability. The waiver and payable by release are part of the Guarantors consideration for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights issuance of the Holders under Guarantees. [INSERT SUBSIDIARY GUARANTOR SIGNATURE BLOCKS AS APPROPRIATE] EXHIBIT F RESTRICTED CONTROL SECURITY LEGEND Each Restricted Security shall bear a legend in substantially the Guaranteefollowing form: THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO THE COMPANY, (II) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (III) PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT, EXERCISABLE BY EITHER, PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (III) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION REASONABLY SATISFACTORY TO EACH OF THEM, IN EACH OF CASES (I) THROUGH (III) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
Appears in 1 contract
Samples: Indenture (Webcraft LLC)
Guarantees. Subject to this Article 1011, each of the Guarantors hereby, jointly and severally, Guarantor hereby unconditionally guarantees to each Holder of a Note 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 Notes or the obligations of the Company hereunder or and thereunder, that: (a) the principal of and premiuminterest and Liquidated Damages, if any, of, and interest, if any, on, on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and premium, if any of, interest and interestLiquidated Damages, if any, on, on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or and the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors Guarantor shall be jointly and severally obligated to pay the same immediately. Each The Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors Guarantor hereby agree agrees that their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each The Guarantor hereby waives 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 covenant that this Subsidiary Guarantee the Note Guarantees shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the GuarantorsGuarantor, any amount paid by either to the Trustee or such Holder, this Subsidiary Guaranteethe Note Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each The Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each The Guarantor further agrees that, as between the GuarantorsGuarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteethe Note Guarantees, notwithstanding any stay, injunction or other prohibition preventing prevention such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided proved in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeNote Guarantees.
Appears in 1 contract
Samples: Condor Systems Inc
Guarantees. Subject Except as otherwise contemplated by Section 1403 below and subject to this Article 10Eighteen, each of the Guarantors hereby, jointly and severally, Guarantor hereby unconditionally guarantees to each Holder of a Note Security authenticated and delivered by the Trustee Trustee, and to the Trustee on behalf of such Holder, the due and its successors and assigns, irrespective punctual payment of the validity principal of and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal any premium and premiuminterest on and any Additional Amounts, if any, ofon such Security and the due and punctual payment of any sinking fund or analogous payments provided for pursuant to the terms of such Security, when and interest, if any, on, as the Notes will be promptly paid in full when duesame shall become due and payable, whether at maturitythe Stated Maturity, by declaration of acceleration, redemption call for redemption, repayment at the option of the Holder or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of such Security and of this Indenture, and whether or not such payment is prohibited by the extension or renewalsubordination provisions of Article Seventeen and any and all other amounts owed by the Company to the Trustee under the terms of this Indenture. In case of the failure of the Company punctually to make any such payment, the Guarantor hereby agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at stated maturitythe Stated Maturity or by declaration of acceleration, by acceleration call for redemption, repayment at the option of the Holder or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred whether or not such payment is prohibited by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect subordination provisions of Article Seventeen and as if such payment were made by the Company, subject to a GuarantorArticle Eighteen. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each The Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes such Security or this Indenture, the absence of any action to enforce the same, any waiver or consent by any the Holder of such Security or by the Notes Trustee with respect to any provisions hereof thereof or thereofof this Indenture, the recovery obtaining of any judgment against the Company, Company or any action to enforce the same or any other circumstance circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each The Guarantor hereby waives the benefits 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, protest or notice with respect to such Security or the indebtedness evidenced thereby or with respect to any sinking fund payment required pursuant to the terms of such Security and all demands whatsoever whatsoever, and covenant covenants that this Subsidiary Guarantee shall the Guarantees will not be discharged in respect of such Security except by complete performance of the obligations contained in such Security and in this guarantee. The Guarantor hereby agrees that, in the Notes event of a default in payment of principal (or premium, if any) or interest or Additional Amounts, if any, on such Security, or a default in any sinking fund or analogous payment referred to therein, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Security, on the terms and conditions set forth in this Indenture, directly against the Guarantor to enforce the Guarantees without first proceeding against the Company. If The Guarantor shall be subrogated to all rights of the Holders of the Securities of a particular series against the Company in respect of any Holder or amounts paid by the Trustee is required by any court or otherwise to return Guarantor on account of such Security pursuant to the Companyprovisions of the Guarantees or this Indenture; provided, however, that the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, Guarantor shall be reinstated in full force and effect. Each Guarantor agrees that it shall -------- ------- not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation in relation to until the Holders in respect principal of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that(and premium, as between the Guarantorsif any) and interest and Additional Amounts, if any, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration all Securities of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors series issued hereunder shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteebeen paid in full.
Appears in 1 contract
Samples: Thermo Electron Corp
Guarantees. Subject to this Article 10, each of the Guarantors hereby, jointly The Additional Guarantor hereby fully and severally, unconditionally guarantees to each Holder of a Note Security of each series issued by the Company, authenticated and delivered by the Trustee 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 such Security, and the due and punctual payment of any sinking fund payments provided for pursuant to the Trustee terms of such Security, when and its successors as the same shall become due and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when duepayable, whether at maturityStated Maturity, by declaration of acceleration, call for redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of such Security and of the extension or renewal, whether at stated maturity, by acceleration or otherwiseIndenture. In addition to the foregoing, each The Additional Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor hereby agrees that this is a guarantee in the event of payment and not a guarantee an Event of collection. The Guarantors hereby agree that their Default 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 the validity, regularity or enforceability of the Notes or this Indenture, the absence of or any action failure to enforce the sameprovisions of any Security of any series or the Indenture, any waiver or consent by any the Holder of the Notes with respect to any provisions hereof or thereof, the recovery Security of any judgment against series of the CompanyCompany or the Trustee, any action to enforce the same or any other circumstance circumstances which might may otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Additional Guarantor, increase the principal amount of any Security of the Company or the interest rate thereon or increase any premium payable upon redemption thereof. Each The Additional Guarantor hereby waives diligence, presentment, demand of 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, protestthe benefit of discussion, protest or notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance with respect to any Security of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either indebtedness evidenced thereby or with respect to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.any
Appears in 1 contract
Guarantees. Subject (i) From and after the A&R Closing Date and prior to this Article 10the Existing Notes Repayment Date, each the Borrower will not cause or permit any of its Subsidiaries (other than a Guarantor), directly or indirectly, to guarantee any Indebtedness with an aggregate principal amount in excess of $100,000,000, of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note 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 Notes Borrower or the obligations of the Company hereunder or thereunder, thatany other Guarantor unless such Subsidiary: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations within 20 Business Days of the Company date on which it guarantees Indebtedness of the Borrower or any Guarantor executes and delivers to the Holders or Agent a guarantee to which such Subsidiary shall guarantee (each, a “Guarantee”) all of the Trustee hereunder or thereunder will be promptly paid Borrower’s Obligations and other terms contained in full or performedthe applicable Guarantee and subject to the conditions contained in such Guarantee; provided that, all in accordance with for the terms hereof avoidance of doubt, such Guarantee shall include customary keepwell and thereofexcluded swap obligation provisions that are satisfactory to the Borrower and the Agent; and (b) in case delivers to the Agent an opinion of any extension of time of payment or renewal of any Notes or any counsel (which may contain customary exceptions) that such Guarantee has been duly authorized, executed and delivered by such Subsidiary and constitutes legal, valid, binding and enforceable obligation of such Subsidiary. (ii) Thereafter, such Subsidiary shall be a Guarantor for all purposes of this Agreement and other obligations, that same will be promptly paid in full when due or performed Loan Documents until such Guarantee is released in accordance with the provisions of this Agreement. In the event of a sale or other transfer or disposition of all of the Capital Stock in any Guarantor to any Person that is not an Affiliate of the Borrower in compliance with the terms of the extension this Agreement, or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event all or substantially all the assets or Capital Stock of insolvency a Guarantor are sold or bankruptcy otherwise transferred, by way of merger, consolidation or otherwise, to a Person that is not an Affiliate of the CompanyBorrower in compliance with the terms of this Agreement, then, without any right to require a proceeding first against further action on the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance part of the obligations contained in the Notes and this Indenture. If Agent or any Holder Lender, such Guarantor (or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or Person concurrently acquiring such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, assets of such Guarantor) shall be reinstated in full force deemed automatically and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect unconditionally cancelled, released and discharged of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees thatunder its Guarantee, as between evidenced by agreement, written instrument or confirmation executed by the GuarantorsAgent, on upon request. In addition, upon the one handrelease or discharge of any guarantee of other Indebtedness which resulted in the creation of a Guarantee (except a discharge or release by or as a result of payment under such guarantee), the Guarantor of such Guarantee shall be deemed automatically and unconditionally cancelled, released and discharged of any obligations under its Guarantee, as evidenced by agreement, written instrument or confirmation executed by the Holders and the TrusteeAgent, on the upon request. The Borrower may cause any other hand, (x) the maturity Subsidiary of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, Borrower to issue a Guarantee and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteea Guarantor.
Appears in 1 contract
Samples: Credit Agreement (Aircastle LTD)
Guarantees. Subject Notes to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note 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 Notes or accelerate the obligations of the Company Guarantors hereunder or thereunder, that: (a) in the principal same manner and premium, if any, of, and interest, if any, on, to the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest same extent as the Obligations of the Issuer on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations . Each of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the CompanyIssuer, any action to enforce the same same, whether or not a Guarantee is affixed to any particular Note, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor of the Guarantors hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuer, any right to require a proceeding first against the CompanyIssuer, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall will not be discharged except by complete performance of the obligations contained in the Notes Notes, this Indenture and this Indenturethe Guarantees. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuer or to any Guarantor, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuer or the Guarantorssuch Guarantor, any amount paid by either the Issuer or such Guarantor to the Trustee or such Holder, this Subsidiary Guaranteethe Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (xa) subject to this Article Eleven, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Section 6.02 for the purposes of this Subsidiary Guaranteethe Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (yb) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofSection 6.02, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guaranteethe Guarantees. The Guarantees shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation or reorganization, should the Issuer 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 Issuer'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 117 -108- 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 the 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. No stockholder, officer, director, employee or incorporator, past, present or future, of any Guarantor, as such, shall have any personal liability under the Guarantees by reason of his, her or its status as such stockholder, officer, director, employee or incorporator. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeGuarantees. Each Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is the intention of all such parties that in no event shall any Guarantor's obligations under its Guarantee be subject to avoidance under any applicable fraudulent conveyance or similar law of any relevant jurisdiction. Therefore, in the event that the Guarantees would, but for this sentence, be subject to avoidance, then the liability of the Guarantors under the Guarantees shall be reduced to the extent necessary such that such Guarantees shall not be subject to avoidance under the applicable fraudulent conveyance or similar law. Subject to the preceding limitation on liability, the Guarantee of each Guarantor constitutes a guarantee of payment in full when due and not merely a guarantee of collectability.
Appears in 1 contract
Samples: Caterair International Inc /Ii/
Guarantees. Subject to this Article 10, each Each of the Guarantors hereby, jointly and severally, unconditionally guarantees guarantees, to each Holder Noteholder of a Note authenticated executed and delivered by the Trustee and to the Trustee and its successors and assignsCompany, irrespective of the validity and enforceability of this IndentureAgreement, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal of and premium, if any, of, premium and interest, if any, on, interest on the Notes will shall be promptly paid in full when due, whether at maturityStated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of (and any premium, if any of, ) and interest, if any, on, interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee Noteholders hereunder or thereunder will shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this IndentureAgreement, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Noteholder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor hereby waives 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 covenant covenants that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this IndentureAgreement. If any Holder or the Trustee Noteholder is required by any court or otherwise to return to the CompanyCompany or Guarantors, the Guarantors or any custodianCustodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such HolderNoteholder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Noteholders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the TrusteeNoteholders, on the other hand, (xa) the maturity Maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Section 11 for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, hereby and (yb) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofSection 11, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders Noteholders under the GuaranteeGuarantees.
Appears in 1 contract
Samples: Purchase and Security Agreement (Brown Jordan International Inc)
Guarantees. Subject to the provisions of this Article 10Twelve, each of the Guarantors hereby, hereby jointly and severally, severally unconditionally and irrevocably guarantees to each Holder of a Note Debt Security authenticated and delivered by the Trustee Trustee, and to the Trustee Trustee, the due and its successors and assigns, irrespective punctual payment of the validity and enforceability principal of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, ) and interest on the overdue principal and premium, if each such Debt Security (including any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed additional amounts payable in accordance with the terms of the extension or renewalsuch Debt Security and this Indenture), whether at stated maturitythe Stated Maturity, by acceleration declaration of acceleration, call for redemption, request for redemption, repurchase at the option of the Holder or otherwise, in accordance with the terms of such Debt Security and of this Indenture and all other amounts due and owing under this Indenture. In case of the failure of the Issuer punctually to make any such payment of principal (or premium, if any) or interest (including any additional amounts as referred to above), each of the Guarantors hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, call for redemption, request for redemption, repayment or any other amount due and owing under this Indenture at the option of the Holder or otherwise, and as if such payment were made by the Issuer. Each Guarantor hereby agrees to pay, in addition to the foregoingamounts stated above, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, including reasonable counsel fees and expenses) incurred by the Trustee under this Indenture or the Holders in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantorany Guarantee. Failing payment when due Each of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of the validity, regularity or enforceability of the Notes any Debt Security or this Indenture, the absence of any action to enforce the same, any waiver or consent by any the Holder of such Debt Security or by the Notes Trustee or the Paying Agent with respect to any provisions hereof thereof or thereofof this Indenture, any release of any other guarantor, the recovery of any judgment against the Company, Issuer or any action to enforce the same or any other circumstance circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantorany Guarantor. Each Guarantor hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuer, any right to require a proceeding first against the CompanyIssuer, protest, protest or notice with respect to such Debt Security or the indebtedness evidenced thereby and all demands whatsoever whatsoever, and covenant covenants that this Subsidiary Guarantee shall its Guarantees will not be discharged except by complete performance of all of the obligations of such Guarantor contained in this Indenture and the Notes Debt Securities and this Indenturein such Guarantees. If any Holder the Trustee or the Trustee Holder of any Debt Security is required by any court or otherwise to return (and does so return) to the CompanyIssuer or to any Guarantor, the Guarantors or any custodian, receiver, liquidator, trustee, liquidator sequestrator or other similar official acting in relation to either the Company Issuer or the Guarantorssuch Guarantor, any amount paid by either to the Trustee or such HolderHolder in respect of a Debt Security, this Subsidiary Guaranteethese Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees further agrees, to the fullest extent that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees lawfully may do so, that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity Maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 Five hereof for the purposes of this Subsidiary Guaranteethese Guarantees, notwithstanding any stay, injunction or other prohibition extant under any applicable Bankruptcy Law preventing such acceleration in respect of the obligations guaranteed hereby. The Guarantees of each Guarantor constitute direct, unconditional, unsubordinated and (yexcept as provided by Sections 804 and 805) unsecured obligations of such Guarantor without preference among themselves and will rank at least equally with all other unsecured and unsubordinated obligations of such Guarantor (including unsecured and unsubordinated guarantees by such Guarantor of Indebtedness of others), subject, in the event of any declaration insolvency, to laws of acceleration general applicability relating to or affecting creditors’ rights. Each of such the Guarantors hereby agrees that its obligations as provided hereunder may be enforced against either of the Guarantors, in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable the event of a default in payment with respect to the Debt Securities by the Guarantors for Issuer, without making prior demand upon or seeking to enforce remedies against the purpose of this Subsidiary GuaranteeIssuer, the other Guarantor or other persons. The Guarantors Each Guarantor shall have the right be subrogated to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the all rights of the Holders under against the GuaranteeIssuer in respect of any amounts paid to such Holders by such Guarantor pursuant to the provisions of the Guarantees of this Indenture; provided, however, that no Guarantor shall be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until the principal of (and premium, if any, on) and interest, if any, on all Debt Securities (including any additional amounts as referred to above) issued hereunder shall have been paid in full.
Appears in 1 contract
Guarantees. Subject to this Article 10, each of the Guarantors hereby, (a) Each Guarantor hereby jointly and severallyseverally unconditionally Guarantees, unconditionally guarantees on a senior unsecured basis, to each Holder of a Note authenticated and delivered by the Trustee Trustee, and to the Trustee on behalf of such Holder, the due and its successors and assigns, irrespective punctual payment of the validity and enforceability principal of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, ) and interestinterest (including Additional Amounts, if any, on, ) on such Note when and as the Notes will be promptly paid in full when duesame shall become due and payable, whether at maturity, by acceleration, redemption call for redemption, purchase or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of such Note and of this Indenture. In case of the extension or renewalfailure of the Issuer punctually to make any such payment, each Guarantor hereby jointly and severally agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at stated maturitymaturity or by acceleration, by acceleration call for redemption, purchase or otherwise, and as if such payment were made by the Issuer. In addition The Guarantee extends to the foregoing, each Issuer's repurchase obligations arising from an Asset Sale pursuant to Section 4.8 or a Change of Control pursuant to Section 4.13. Each Guarantor also agrees, unconditionally and hereby jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes such Note or this Indenture, the absence of any action to enforce the same, any exchange, release or non-perfection of any Lien on any collateral for, or any release or amendment or waiver of any term of any other Guarantee of, or any consent to departure from any requirement of any other Guarantee of all or any of the Notes, the effects of bankruptcy law applicable in the event of bankruptcy proceedings being opened with respect to the Issuer, of all or any portion of the claims of the Trustee or any of the Holders for payment of any of the Notes, any waiver or consent by any the Holder of such Note or by the Notes Trustee with respect to any provisions hereof thereof or thereofof this Indenture, the recovery obtaining of any judgment against the Company, Issuer or any action to enforce the same or any other circumstance circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantorguarantor (except payment in full); provided, however, that, notwithstanding the foregoing, no such waiver, amendment, consent or circumstance shall without the written consent of the Guarantors increase the principal amount of a Note or the interest rate thereon or change the currency of payment with respect to any Note, or alter the stated maturity thereof. Each Guarantor hereby waives the benefits of diligence, presentment, demand for payment, any requirement that the Trustee or any of paymentthe Holders protect, secure, perfect or insure any security interest in or other Lien on any property subject thereto or exhaust any right or take any action against the Issuer or any other Person or any collateral, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuer, any right to require a proceeding first against the CompanyIssuer, protest, protest or notice with respect to such Note or the Indebtedness evidenced thereby and all demands whatsoever whatsoever, and covenant covenants that this Subsidiary Guarantee shall will not be discharged in respect of such Note except by complete performance of the obligations contained in such Note and in this Guarantee. Each Guarantor hereby agrees that, in the Notes and this Indenture. If any Holder event of a default in payment of principal (or premium, if any) or interest (including Additional Amounts, if any) on such Note, whether at their maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee is required by any court on behalf of, or otherwise to return by, the Holder of such Note, subject to the Companyterms and conditions set forth in this In- denture, directly against each Guarantor to enforce this Guarantee without first proceeding against the Guarantors Issuer. No reference herein to this Indenture and no provision of this Guarantee or of this Indenture shall alter or impair the Guarantee of any custodianGuarantor, trusteewhich is absolute and unconditional, liquidator or other similar official acting in relation to either of the Company or due and punctual payment of the Guarantorsprincipal of (and premium, any amount paid by either to if any) and interest (including Additional Amounts, if any) on the Trustee or such Holder, Note upon which this Subsidiary Guarantee, to the extent theretofore discharged, Guarantee is endorsed. Each Guarantee shall be reinstated remain in full force and effect. Each Guarantor agrees that it shall not effect and continue to be entitled to effective should any right petition be filed by or against the Issuer for liquidation or reorganization or equivalent proceeding under applicable law, should the Issuer become insolvent or make an assignment for the benefit of subrogation in relation creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer's assets, or the equivalent of any of the foregoing under applicable law, and shall, to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees thatfullest extent permitted by law, continue to be effective or be reinstated, as between the Guarantorscase may be, if at any time payment and performance of the Notes, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the one handNotes, and whether as a voidable preference, fraudulent transfer, or as otherwise provided under similar laws affecting the Holders and the Trustee, on the other hand, (x) the maturity rights of creditors generally or under applicable laws of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes jurisdiction of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect formation of the obligations guaranteed herebyIssuer, and (y) in all as though such payment or performance had not been made. In the event of that any declaration of acceleration of 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 obligations as provided in Article 6 hereofamount paid and not so rescinded, such obligations (whether reduced, restored or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guaranteereturned. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the this Guarantee.
Appears in 1 contract
Samples: Senior Indenture (Head Nv)
Guarantees. Subject Except as otherwise contemplated by Section 1403 below and subject to this Article 10Eighteen, each of the Guarantors hereby, jointly and severally, Guarantor hereby unconditionally guarantees to each Holder of a Note Security authenticated and delivered by the Trustee Trustee, and to the Trustee on behalf of such Holder, the due and its successors and assigns, irrespective punctual payment of the validity principal of and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal any premium and premiuminterest on and any Additional Amounts, if any, ofon such Security and the due and punctual payment of any sinking fund or analogous payments provided for pursuant to the terms of such Security, when and interest, if any, on, as the Notes will be promptly paid in full when duesame shall become due and payable, whether at maturitythe Stated Maturity, by declaration of acceleration, redemption call for redemption, repayment at the option of the Holder or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of such Security and of this Indenture, and whether or not such payment is prohibited by the extension or renewalsubordination provisions of Article Seventeen and any and all other amounts owed by the Company to the Trustee under the terms of this Indenture. In case of the failure of the Company punctually to make any such payment, the Guarantor hereby agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at stated maturitythe Stated Maturity or by declaration of acceleration, by acceleration call for redemption, repayment at the option of the Holder or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred whether or not such payment is prohibited by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect subordination provisions of Article Seventeen and as if such payment were made by the Company, subject to a GuarantorArticle Eighteen. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each The Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes such Security or this Indenture, the absence of any action to enforce the same, any waiver or consent by any the Holder of such Security or by the Notes Trustee with respect to any provisions hereof thereof or thereofof this Indenture, the recovery obtaining of any judgment against the Company, Company or any action to enforce the same or any other circumstance circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each The Guarantor hereby waives the benefits 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, protest or notice with respect to such Security or the indebtedness evidenced thereby or with respect to any sinking fund payment required pursuant to the terms of such Security and all demands whatsoever whatsoever, and covenant covenants that this Subsidiary Guarantee shall the Guarantees will not be discharged in respect of such Security except by complete performance of the obligations contained in such Security and in this guarantee. The Guarantor hereby agrees that, in the Notes event of a default in payment of principal (or premium, if any) or interest or Additional Amounts, if any, on such Security, or a default in any sinking fund or analogous payment referred to therein, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Security, on the terms and conditions set forth in this Indenture, directly against the Guarantor to enforce the Guarantees without first proceeding against the Company. If The Guarantor shall be subrogated to all rights of the Holders of the Securities of a particular series against the Company in respect of any Holder or amounts paid by the Trustee is required by any court or otherwise to return Guarantor on account of such Security pursuant to the Companyprovisions of the Guarantees or this Indenture; provided, however, that the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation in relation to until the Holders in respect principal of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that(and premium, as between the Guarantorsif any) and interest and Additional Amounts, if any, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration all Securities of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors series issued hereunder shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteebeen paid in full.
Appears in 1 contract
Samples: Thermo Electron Corp
Guarantees. Subject to this Article 10The Guarantors hereby unconditionally guarantee, each of the Guarantors herebyon a senior unsecured basis and as primary obligor and not merely as surety, jointly and severallyseverally with each other Guarantor, unconditionally guarantees to each Holder of a Note authenticated the Notes and delivered by the Trustee the full and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, Notes and all other obligations and liabilities of the Company under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Holders Company or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) (all the Trustee hereunder foregoing being hereinafter collectively called the "Obligations"). The Obligations of Guarantors under the Note Guarantees will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is expressly subordinate to the obligations arising under the Note Guarantee. Each Guarantor further agrees (to the extent permitted by law) that the Obligations may be extended or thereunder renewed, in whole or in part, without notice or further assent from it, and that it will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of remain bound under this Article X notwithstanding any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediatelyObligation. Each Guarantor agrees that this is a guarantee waives presentation to, demand of payment from and not a guarantee protest to the Company of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective any of the validity, regularity or enforceability Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal agreement or equitable discharge otherwise; (b) any extension or defense renewal of a guarantor. Each Guarantor hereby waives diligenceany thereof; (c) any rescission, presentmentwaiver, demand amendment or modification of payment, filing of claims with a court in the event of insolvency or bankruptcy any of the Companyterms or provisions of this Indenture, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If or any other agreement; (d) the release of any security held by any Holder or the Trustee is required by for the Obligations or any court of them; (e) the failure of any Holder to exercise any right or otherwise to return to remedy against any other Guarantor; or (f) any change in the ownership of the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees thatthat its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Obligations. The obligations of each Guarantor hereunder shall not be subject to any reduction, as between limitation, impairment or termination for any reason (other than payment of the GuarantorsObligations in full), on the one handincluding any claim of waiver, release, surrender, alteration or compromise, and the Holders and the Trusteeshall not be subject to any defense of setoff, on the other handcounterclaim, (x) the maturity recoupment or termination whatsoever or by reason of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteeinvalidity, notwithstanding any stay, injunction illegality or other prohibition preventing such acceleration in respect unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations guaranteed herebyof each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, and (y) the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the event performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any declaration of acceleration Guarantor or would otherwise operate as a discharge of such obligations Guarantor as provided in Article 6 hereof, such obligations (whether a matter of law or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteeequity.
Appears in 1 contract
Samples: Tower Automotive Inc
Guarantees. Subject to this Article 10, each of the Guarantors hereby, jointly The Guarantor hereby fully and severally, unconditionally guarantees to each Holder of a Note each Security which is authenticated and delivered by the Trustee Trustee, and to the Trustee for itself and its successors on behalf of each such Holder, the due and assignspunctual payment in full, irrespective of the validity and enforceability of this Indentureprincipal of, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, ofand interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and interestincluding any additional interest required to be paid according to the terms of any such Security), if any, onon such Security, when and as the Notes will be promptly paid in full when duesame shall become due and payable, whether at maturityStated Maturity, by upon redemption, upon acceleration, redemption upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, of this Indenture and all other obligations of the Company Issuer with respect to such Security to the Holders Holder or the Trustee hereunder or thereunder will be promptly paid (the “Guarantor Obligations”). In case of the failure of the Issuer or any successor thereto punctually to pay in full any such principal, premium or performedinterest, all in accordance with the terms hereof and thereof; and (b) in case of Guarantor hereby agrees to cause any extension of time of such payment or renewal of any Notes or any of such other obligations, that same will to be promptly paid made punctually in full when and as the same shall become due or performed in accordance with the terms of the extension or renewaland payable, whether at stated maturityStated Maturity, by acceleration upon redemption, upon declaration of acceleration, or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred as if such payment were made by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a GuarantorIssuer. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each The Guarantor agrees that this Guarantee is a guarantee of payment and not a guarantee of collection. The Guarantors Guarantor hereby agree agrees that their obligations its Guarantor Obligations hereunder with respect to any Securities shall be as if it were principal debtor and not merely surety and shall be absolute and unconditional, irrespective of the identity of the Issuer, the validity, regularity or enforceability of the Notes any such Security appertaining thereto or this Indenture, the absence of any action to enforce the same, any waiver or consent by any the Holder of the Notes any such Security with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, Issuer or any action to enforce the same same, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorguarantor including but not limited to: (A) any right to require any of the Trustee, the Holders or the Issuer (each a “Benefited Party”), as a condition of payment or performance by the Guarantor, to (1) proceed against the Guarantor, the Issuer or any other Person, (2) proceed against or exhaust any security held from the Guarantor, the Issuer or any other Person or (3) proceed against or have to resort to any balance of any deposit account or credit on the books of any Benefited Party in favor of the Guarantor, the Issuer or any other Person, and (B) any defense based on or arising out of the lack of validity or the unenforceability of the obligations under this Guarantee or any agreement or instrument relating hereto. Each The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuer, any right to require a proceeding first against the CompanyIssuer, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall will not be discharged except by complete performance of the its obligations contained in the Notes any such Security and in this IndentureGuarantee. If any Holder the Trustee or the Trustee Holder of any Security is required by any court or otherwise to return to the CompanyIssuer or the Guarantor, the Guarantors or any custodian, receiver, liquidator, assignee, trustee, liquidator sequestrator or other similar official acting in relation to either the Company Issuer or the GuarantorsGuarantor, any amount paid by either to the Trustee or such HolderHolder in respect of a Security included in such Guarantor’s Guarantor Obligations, this Subsidiary the applicable Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each The Guarantor further agrees, to the fullest extent that it may lawfully do so, that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations included in such Guarantor’s Guarantor Obligations may be accelerated as provided in Article VI hereof for the purposes of the applicable Guarantee, notwithstanding any stay, injunction or other prohibition extant under any applicable bankruptcy law preventing such acceleration in respect of the obligations guaranteed hereby and (2) in the event of any declaration of acceleration of such obligations as provided in Article VI hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purpose of this Guarantee. The Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment and performance in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as provided that the foregoing shall not be deemed to restrict any separate indemnity agreement between the Guarantors, on the one hand, Issuer and the Holders Guarantor. The Guarantor hereby agrees to pay any and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, all costs and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable expenses incurred by the Guarantors for Trustee in enforcing its respective rights under the purpose of this Subsidiary Guarantee. The Guarantors Guarantee shall have remain in full force and effect and continue to be effective should any petition be filed by or against the right to seek contribution from Issuer for liquidation or reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a custodian be appointed for all or any non-paying Guarantor so long as the exercise of such right does not impair the rights significant part of the Holders under the GuaranteeIssuer’s assets.
Appears in 1 contract
Guarantees. Subject to the provisions of this Article 1011, each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this the Indenture, the Notes or the obligations other Obligations of the Company Issuers hereunder or thereunder, that: (a) the principal and premium, if any, of, premium and interest, if any, on, interest on the Notes will shall be promptly paid in full when due, whether at maturitythe maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, premium and interest, if any, on, interest on the Notes, if any, if to the extent lawful, and all other obligations Obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof of the Indenture and thereofthe Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their to the fullest extent permitted by applicable law, its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofof the Indenture and the Notes, the recovery of any judgment against the CompanyIssuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each To the fullest extent permitted by applicable law, each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuers, any right to require a proceeding first against the CompanyIssuers, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers or Guarantors, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuers or the Guarantors, any amount paid by either any of them to the Trustee or such Holder, this Subsidiary Guaranteethese Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 7 hereof for the purposes of this Subsidiary Guaranteethese Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 7 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guaranteethese Guarantees. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees. Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against an Issuer for liquidation, reorganization, should such Issuer become insolvent or make an assignment for the Guaranteebenefit of creditors or should a receiver or trustee be appointed for all or any significant part of the 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 the Notes or Guarantees, 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. The Guarantee issued by any Guarantor shall be a general unsecured senior obligation of such Guarantor and shall be pari passu in right of payment with all existing and future Senior Indebtedness of such Guarantor, if any. Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. Notwithstanding anything to the contrary, any direct or indirect parent company of the Company may guarantee the Notes and become a Guarantor hereunder.
Appears in 1 contract
Samples: Supplemental Indenture (Atlas Energy Resources, LLC)
Guarantees. Subject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees guarantees, on a senior unsecured basis, to each Holder of a Note 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 Notes or held thereby and the obligations Obligations of the Company Issuers hereunder or and thereunder, that: (a) the principal and of, premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturityStated Maturity, by acceleration, upon repurchase or redemption or otherwise, and interest on the overdue principal and of, premium, if any of, (to the extent permitted by law) and interest, if any, on, interest on the Notes, if any, if lawful, and all other obligations payment Obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturityStated Maturity, by acceleration acceleration, upon repurchase or redemption or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Notes shall constitute an event of payment default under the Guarantees, and not a guarantee shall entitle the Holders to accelerate the obligations of collectionthe Guarantors hereunder in the same manner and to the same extent as the Obligations of the Issuers. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Companyan Issuer, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor further, to the extent permitted by law, hereby waives 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 Companyan Issuer, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Companyan Issuer, the Guarantors Guarantors, or any custodianCustodian, trustee, liquidator Trustee or other similar official acting in relation to either any of the Company Issuers or the Guarantors, any amount paid by either an Issuer or any Guarantor to the Trustee or such Holder, this Subsidiary Guaranteethe Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary its Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed herebythereby, and (yb) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose of this Subsidiary its Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeGuarantees.
Appears in 1 contract
Guarantees. Subject to this Article 10, each of the The Guarantors hereby, hereby jointly and severally, unconditionally guarantees and irrevocably guarantee to each Holder of a Note Security of each series authenticated and delivered by the either Trustee and to each Trustee on its own behalf and on behalf of each such Holder, the Trustee due and its successors and assigns, irrespective punctual payment of the validity and enforceability of this Indentureprincipal of, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, ofand interest on such Security, the due and interestpunctual payment of the sinking fund or analogous payments referred to therein, if any, on, and the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, due and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, punctual payment of all other amounts owing with respect to such Security under this Indenture and all other obligations of the Company Issuer to the Holders or the Trustee hereunder Trustees under the Securities or thereunder will be promptly paid in full this Indenture, when and as the same shall become due and payable, whether on the Stated Maturity, by declaration of acceleration, call for redemption or performedotherwise, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with according to the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwisesuch Securities and of this Indenture. In addition case of the failure of the Issuer punctually to the foregoingmake any such payment of principal, premium, if any, or interest that may be payable with respect to any Security, or any such sinking fund or analogous payment, or any other applicable payment, each Guarantor also agreeshereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, unconditionally whether on the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred as if such payment were made by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediatelyIssuer. Each Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of the validity, regularity or enforceability of the Notes any Security or this Indenture, the absence of any action failure to enforce the sameprovisions of any Security or this Indenture, or any waiver waiver, modification or consent indulgence granted to the Issuer with respect thereto or hereto, by any the Holder of any Security or the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same Trustees or any other circumstance which might may otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantors, increase the principal amount of any Security, or increase the interest rate thereon, or increase any premium payable upon redemption thereof, or alter the Stated Maturity thereof, or increase the principal amount of any Original Issue Discount Security that would be due and payable upon a declaration of acceleration or the maturity thereof pursuant to Article Five of this Indenture. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency merger or bankruptcy of the CompanyIssuer, any right to require a proceeding first against the CompanyIssuer, protest, protest or notice with respect to any Security or the indebtedness evidenced thereby or any sinking fund or analogous payment or other payment required under any Security and all demands whatsoever whatsoever, and covenant covenants that its obligations under this Subsidiary Guarantee shall Article Fifteen and the Guarantees will not be discharged except by complete performance payment in full of the obligations contained in principal of, premium, if any, and interest on the Notes Securities and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or all other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effectamounts owing with respect thereto. Each Guarantor agrees shall be subrogated to all rights of the Holder of any Security and the Trustees against the Issuer in respect of any amounts paid to such Holder by any Guarantor pursuant to the provisions of this Article Fifteen and its Guarantee of such Security; provided, however, that it such Guarantor shall not be entitled to enforce or to receive any payments arising out of or based upon such right of subrogation in relation to until the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees thatprincipal of, as between the Guarantorspremium, on the one handif any, and the Holders and the Trustee, interest on the other hand, (x) the maturity all Securities of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of same series issued under this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed herebyIndenture, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofall other amounts owing with respect thereto, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteebeen paid in full.
Appears in 1 contract
Samples: Indenture (Granite Reit Inc.)
Guarantees. Subject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note 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 Notes or the obligations of the Company hereunder or thereunder, that: (a) Section 5.8(a) of the principal Seller’s Disclosure Schedule contains a true and premiumcorrect list of the DuPont Guarantees outstanding as of the date hereof, the maximum amount guaranteed thereunder and, as of the date set forth on such schedule, the amount of the third party guaranteed indebtedness with respect to such DuPont Guarantee that is outstanding as of such date (other than any DuPont Guarantees that will terminate or expire prior to the Effective Time). After the date hereof, DuPont shall not enter into any DuPont Guarantee without the consent of Buyer, other than (i) any DuPont Guarantees that will terminate or expire prior to the Effective Time, (ii) new guarantees in connection with the DPC Customer Financing (provided that the outstanding DuPont Guarantees under the DPC Customer Financing Program shall not exceed $30,000,000 in the aggregate at any time and (iii) any DuPont Guarantees (other than in connection the DPC Customer Financing Program) provided in the ordinary course of business consistent with past practices that will remain in effect immediately following the Closing under which the maximum amount guaranteed, together with any DuPont Guarantees in existence as of the date hereof that remain outstanding as of the Closing Date, shall not exceed $10,000,000 in the aggregate. Prior to the Closing Date, DuPont and Buyer shall cooperate and shall use their respective commercially reasonable efforts to terminate, or, if anythe parties are unable to so terminate, cause Buyer or one of its Subsidiaries to be substituted in all respects for DuPont or the applicable Retained Subsidiary in respect of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes DuPont or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee Retained Subsidiaries under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, DuPont Guarantees on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeClosing Date.
Appears in 1 contract
Guarantees. Subject Prior to the Escrow Assumption, the Notes will not be Guaranteed. Following the Escrow Assumption, and subject to the provisions of this Article 10, each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Note 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 Notes or the obligations other Obligations of the Company Issuers hereunder or thereunder, that: (a) the principal of, premium and premiuminterest (including Additional Interest, if any, of, and interest, if any, on, ) on the Notes will shall be promptly paid in full when due, whether at maturitythe maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, premium and interestinterest (including Additional Interest, if any, on, ) on the Notes, if any, if to the extent lawful, and all other obligations Obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will under this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof of this Indenture and thereofthe Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their to the fullest extent permitted by applicable law, its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofof this Indenture and the Notes, the recovery of any judgment against the CompanyIssuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each To the fullest extent permitted by applicable law, each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuers, any right to require a proceeding first against the CompanyIssuers, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers or Guarantors, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuers or the Guarantors, any amount paid by either any of them to the Trustee or such Holder, this Subsidiary Guaranteethese Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteethese Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guaranteethese Guarantees. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees. Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against an Issuer for liquidation, reorganization, should such Issuer become insolvent or make an assignment for the Guaranteebenefit of creditors or should a receiver or trustee be appointed for all or any significant part of the 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 the Notes or Guarantees, 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. The Guarantee issued by any Guarantor shall be a general unsecured senior obligation of such Guarantor and shall be pari passu in right of payment with all existing and future Senior Indebtedness of such Guarantor, if any. Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. Notwithstanding anything to the contrary, any direct or indirect parent company of the Company may guarantee the Notes and become a Guarantor hereunder.
Appears in 1 contract
Samples: Supplemental Indenture (Atlas Resource Partners, L.P.)
Guarantees. Subject Each Guarantor of a particular series of Securities hereby unconditionally guarantees (each such guarantee to this Article 10, each of the Guarantors herebybe referred to herein as a "Guarantee"), jointly and severallyseverally with each other Guarantor of the Securities of that series, unconditionally guarantees if any, to each Holder of a Note such Securities 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 Notes such Securities or the obligations of the Company hereunder or thereunder, that: (ai) the due and punctual payment of the principal of and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when dueany premium or interest on such Securities, whether at maturitymaturity or on an interest payment date, by acceleration, redemption pursuant to an offer to purchase such Securities or otherwise, and interest on the overdue principal and premium, if any of, of and interest, if any, on, the Notes, if anyon such Securities, if lawful, and all other obligations of the Company to the Holders of such Securities or the Trustee hereunder or thereunder will shall be promptly paid in full or performedfull, all in accordance with the terms hereof and thereof; thereof including all amounts payable to the Trustee under Section 6.07 hereof, and (bii) in case of any extension of time of payment or renewal of any Notes such Securities or any of such other obligations, that the same will shall be promptly paid in full when due or to be performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition If the Company fails to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay make any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, each Guarantor of the Guarantors Securities of that series shall be obligated, jointly and severally obligated with each other such Guarantor, if any, to pay the same immediately. Each Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be continuing, absolute and unconditional, irrespective of of, and shall be unaffected by, the validity, regularity or enforceability of the Notes or Securities, this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Securities or the Trustee with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorsuch Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, demand of performance, 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, the benefit of discussion, protest, notice and all demands demand whatsoever and covenant covenants that this Subsidiary its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes Securities guaranteed by such Guarantee, in this Indenture and in this IndentureArticle Fifteen. If any Holder of Securities of a series guaranteed hereby or the Trustee is required by any court or otherwise to return to the CompanyCompany or any Guarantor of such Securities, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorsany Guarantor of such Securities, any amount paid by either the Company or any Guarantor of such Securities to the Trustee or such Holder, this Subsidiary GuaranteeArticle Fifteen, to the extent theretofore dischargeddischarged with respect to any Guarantee of such Securities, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Securities of a series guaranteed hereby by such Guarantor in respect of any obligations guaranteed hereby by such Guarantee until payment in full of all obligations guaranteed herebysuch obligations. Each Guarantor further agrees that, as between the Guarantorssuch Guarantor, on the one hand, and the Holders of Securities of a series guaranteed hereby by such Guarantor and the Trustee, Trustee on the other hand, (xi) the maturity of the obligations guaranteed hereby by such Guarantee may be accelerated as provided in Article 6 Five hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.for
Appears in 1 contract
Samples: Kerr McGee Corp /De
Guarantees. Subject to the provisions of this Article 10Eleven, each of the Guarantors hereby, jointly Guarantor unconditionally and severally, unconditionally irrevocably guarantees to each Holder of a Note 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 Notes or the obligations of the Company hereunder or thereunder, that: (ai) the principal and of, premium, if any, of, and interest, if any, on, interest on the Notes will be promptly duly and punctually paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and interest on the overdue principal and premium, if (to the extent permitted by law) interest on any of, and interest, if any, on, interest on the Notes, if any, if lawful, Notes and all other monetary obligations of the Company Obligor to the Holders or the Trustee hereunder or thereunder under the Notes (including fees and expenses) will be promptly paid in full or performedfull, all in accordance with the terms hereof and thereofhereof; and (bii) in case of any extension of time of payment or renewal of any of the Notes or any of such other monetary obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed guaranteed, or failing performance of any performance so guaranteed other monetary obligation of the Obligor to the Holders, for whatever reason, the Guarantors shall Guarantor will be jointly and severally obligated to pay pay, or to perform or to cause the performance of, the same immediately. Each An Event of Default under this Indenture or the Notes shall constitute an event of default under this Guarantee, and shall entitle the Trustee or Holders of the Notes to accelerate the obligations of the Guarantor under this Guarantee in the same manner and to the same extent as the obligations of the Obligor. The Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, including, without limitation, an Event of Default set forth in paragraphs (4) and (5) of Section 401 of this is a guarantee Indenture, the Trustee or any Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of payment the Notes, to collect interest on the Notes, or to enforce any other right or remedy with respect to the Notes, the Guarantor agrees to pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and not a guarantee payable had such rights and remedies been permitted to be exercised by the Trustee or any of collectionthe Holders. The Guarantors Guarantor hereby agree agrees that their its obligations hereunder under this Guarantee shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.this
Appears in 1 contract
Samples: Pepsi Bottling Group Inc
Guarantees. Subject to the provisions of this Article 1012, each of the Guarantors hereby, Guarantor hereby jointly and severally, severally unconditionally guarantees to each Holder of a Note Security authenticated and delivered made available for delivery by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes Securities or the obligations of the Company hereunder or thereunderany other Guarantors to the Holders or the Trustee hereunder, that: (a) the principal of and premium, if any, of, and interest, if any, on, interest on the Notes Securities will be promptly duly and punctually paid in full when due, whether at maturity, by acceleration, redemption acceleration or otherwise, and interest on the overdue principal and premium, if any of, and (to the extent permitted by law) interest, if any, on, on the Notes, if any, if lawful, Securities and all other obligations of Obligations on the Company to the Holders or the Trustee hereunder or thereunder Securities will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligationsObligations on the Securities, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at final stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed guaranteed, for whatever reason, the Guarantors shall each Guarantor will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Securities shall constitute an event of default under the Guarantees, and shall entitle the Holders of Securities to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the obligations of the Company on the Securities. Each Guarantor of the Guarantors hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be unconditional, irrespective of the validity, regularity regularly or enforceability of the Notes Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Securities with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the Company, any an action to enforce the same same, whether or not a Guarantee is affixed to any particular Security, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor of the Guarantors hereby waives 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 covenant covenants that this Subsidiary its Guarantee shall will not be discharged except by complete performance of the obligations contained in the Notes Securities, this Indenture and this Indenturethe Guarantee. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyCompany or to any Guarantor, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorssuch Guarantor, any amount paid by either the Company or such Guarantor to the Trustee or such Holder, this Subsidiary Guaranteethe Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders of Securities and the Trustee, on the other hand, (xa) subject to this Article 12, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Section 6.02 for the purposes of this Subsidiary Guaranteethe Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (yb) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofSection 6.02, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guaranteethe Guarantees. The Guarantors Guarantees shall have remain in full force and effect and continue to be effective should any petition be filed by or against the right to seek contribution from 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 non-paying Guarantor so long as the exercise of such right does not impair the rights significant part of the Holders under Company's assets, and shall, to the Guarantee.fullest extent permitted by law, continue to be
Appears in 1 contract
Samples: Ackerley Group Inc
Guarantees. Subject to this Article 10, each To secure repayment of the Guarantors herebyloan in capital, jointly interest, costs and severallyaccessories, unconditionally guarantees as well as the execution of all the obligations entered into under this agreement and the loan agreement, the Grantor hypothecates up to each Holder the sum of SAISIE dollars ($ SAISIE), bearing interest at the annual rate of twenty-five percent (25 %), in favour of the Creditor, the following properties: QUOTA AND PROCEEDS OF ITS DISPOSAL COMPLETE THE PARAGRAPH DEPENDING ON WHAT IS REQUIRED IN THE LOAN CERTIFICATE using the appropriate subparagraphs and removing the others. An existing quota of SAISIE issued by SAISIE for the benefit of SAISIE and any proceeds of its possible disposal, in whole or in part. The universality of any quota for milk production, present and future, issued by Les Producteurs de lait du Québec and held or may be held in the future by the Grantor, and any proceeds of its possible disposal, in whole or in part. The universality of any quota for poultry production, present and future, issued by Les Éleveurs de volailles du Québec and held or may be held in the future by the Grantor, and any proceeds of its possible disposal, in whole or in part. The universality of any quota for laying hens, present and future, issued by la Fédération des producteurs d’oeufs de consommation du Québec and held or may be held in the future by the Grantor, and any proceeds of its possible disposal, in whole or in part. The universality of any quota for laying hens, present and future, issued by le Syndicat des producteurs d’oeufs d’incubation du Québec and held or may be held in the future by the Grantor, and any proceeds of its possible disposal, in whole or in part. The proceeds of any disposal of a Note authenticated and delivered quota mentioned above shall be remitted by the Trustee and Grantor to the Trustee Creditor or directly collected by the latter and its successors deposited in his hands. With the authorization of La Financière agricole, the Creditor will be entitled to use all or part of these proceeds to reimburse the loan or to remit them to the Grantor, for the purposes and assigns, irrespective in the manner determined by La Financière agricole. The Grantor undertakes not to dispose of all or any part of any quota mentioned above without the written consent of the validity Creditor and enforceability of this IndentureLa Financière agricole. The Grantor also authorizes the organization mentioned above not to transfer the quota without the Creditor's written consent, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company subject to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwisequota’s regulation. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collectionCOMPLETE THE PARAGRAPH DEPENDING ON WHAT IS REQUIRED IN THE LOAN CERTIFICATE OR IN THE AUTORISATION. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court following text is provided in the event where only the quota must be hypothecated. In these cases, remove the above subparagraphs, the proceed of insolvency or bankruptcy disposal of the Companyquota being already hypothecated. An existing quota of SAISIE issued by SAISIE for the benefit of SAISIE. The universality of any quota for milk production, present and future, issued by Les Producteurs de lait du Québec and held or may be held in the future by the Grantor. The universality of any right quota for poultry production, present and future, issued by Les Éleveurs de volailles du Québec and held or may be held in the future by the Grantor. The universality of any quota for laying hens, present and future, issued by la Fédération des producteurs d’oeufs de consommation du Québec and held or may be held in the future by the Grantor. The universality of any quota for laying hens, present and future, issued by le Syndicat des producteurs d’oeufs d’incubation du Québec and held or may be held in the future by the Grantor. The Grantor undertakes not to require a proceeding first against dispose of all or any part of any quota mentioned above without the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance written consent of the obligations contained in Creditor and of La Financière agricole. The Grantor also authorizes the Notes and this Indenture. If any Holder or organism mentioned above not to transfer the Trustee is required by any court or otherwise to return quota without the Creditor's written consent, subject to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteequota’s regulation.
Appears in 1 contract
Samples: www.fadq.qc.ca
Guarantees. Subject to this Article Section 10, each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Note authenticated guarantees, as primary obligor and delivered by the Trustee and not merely as surety, to the Trustee and its successors and assignsCollateral Agent for the benefit of the Secured Parties, irrespective of the validity and enforceability of this IndentureAgreement, the Notes Loans or the obligations of the Company hereunder or thereunderBorrower Obligations, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will Borrower Obligations shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and premium, if any of, and interest, if any, on, interest on the NotesLoans, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will Borrower Obligations shall be promptly paid in full or performed, all in accordance with the terms hereof and thereofhereof; and (b) in case of any extension of time of payment or renewal of any Notes Loans or any of such other obligationsBorrower Obligations, that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this IndentureLoan Documents, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Administrative Agent with respect to any provisions hereof or thereof, the recovery of any judgment against the CompanyBorrower, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives (to the extent permitted by law) diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyBorrower, any right to require a proceeding first against the CompanyBorrower, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary Guarantee shall not be discharged except pursuant to Section 9.20, and any rights of orden and excusión it may have 153 1233099.09-CHISR02A - MSW by complete performance virtue of law or otherwise, as provided in Articles 2812 (two thousand eight hundred and twelve), 2814 (two thousand eight hundred and fourteen) and 2816 (two thousand eight hundred and sixteen) of the obligations contained in Mexican Federal Civil Code, and its relative articles of the Notes and this Indenturecivil code of any state of Mexico. If This Section 10 shall continue to be effective or be reinstated, as the case may be, if at any Holder time any payment of any of the Obligations is rescinded or the Trustee is required must otherwise be returned by any court or otherwise to return to the Company, the Guarantors Secured Parties or any custodianother Person upon the insolvency, trusteebankruptcy or reorganization of the Borrower or otherwise, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or all as though such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, payment had not been made. Each Guarantee shall be reinstated remain in full force and effecteffect and continue to be effective should any petition be filed by or against the Borrower for liquidation or reorganization, should the Borrower 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 Borrower’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 Obligations are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Obligations, 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 Obligations 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. In case any provision of this Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. This Guarantee issued by any Guarantor shall be a general senior obligation of such Guarantor and shall be equal in right of payment with all existing and future Senior Indebtedness of such Guarantor, including the 2025 Note Guarantees and the 2026 Note Guarantees of such Guarantor. Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. Each Guarantor, the Administrative Agent and each Lender hereby confirms that it is the intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Guarantee. To effectuate the foregoing intention, the Administrative Agent, each Lender and the Guarantors hereby irrevocably agree that the obligations of each Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Section 10, result in the obligations of such Guarantor under its Guarantee not constituting unlawful financial assistance, a fraudulent conveyance or fraudulent transfer under applicable law. Each Guarantor agrees that it makes a payment under its Guarantee shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until upon payment in full of all obligations guaranteed hereby. Each Obligations under this Agreement to a contribution from each other Guarantor further agrees that, as between the Guarantors, in an amount equal to such other Guarantor’s pro rata portion of such payment based on the one handrespective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP. Any Guarantee of a Guarantor incorporated under the laws of England and Wales shall not apply to the extent that it would result in such Guarantee constituting unlawful financial assistance within the meaning of sections 678 or 679 of the Companies Act 2006. Any Guarantee of a Guarantor incorporated under the laws of Ireland shall not apply to the extent that it would result in such Guarantee constituting financial assistance as prohibited by section 82 of the Irish Companies Act 2014. 154 1233099.09-CHISR02A - MSW No Guarantor will exercise any rights that it may now or hereafter acquire against any Loan Party or any other guarantor that arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under this Section 10, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Secured Parties against any Loan Party or any other guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any Loan Party or any other guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until the Termination Conditions have been satisfied. If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the later of the date the Termination Conditions are satisfied and the Holders Maturity Date, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the TrusteeSecured Parties to be credited and applied to the Obligations and all other amounts payable under this Section 10, on whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any Obligations or other handamounts payable under this Section 10 thereafter arising. If (i) any Guarantor shall make payment to the Secured Parties of all or any part of the Obligations, (xii) the maturity Termination Conditions have been satisfied and (iii) the Maturity Date shall have occurred, the Secured Parties will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the Obligations resulting from such payment by such Guarantor. For purposes of this Subsidiary GuaranteeSection 10, notwithstanding any stayeach Guarantor incorporated or formed under the laws of Mexico (each a “Mexican Guarantor”), injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors specifically for the purpose of receiving legal and/or judicial service of process in the United States of America in connection with this Subsidiary Guarantee. The Guarantors shall have Section 10, independently from the Lenders’ right to seek contribution from make and deliver services of process to the Mexican Guarantors in any nonother way or form which is legally valid, hereby designates the following agent and attorney-paying in-fact for such purposes in the United States of America (the “Mexican Process Agent”): NFE Management LLC The Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000 Xxxxxx Xxxxxx of America Each Mexican Guarantor so long represents and warrants to the Lenders that on the date on which such entity joins this Agreement as a Guarantor (each, an “Accession Date”), it has received evidence of the exercise acceptance by the Mexican Process Agent of its appointment as such by the Mexican Guarantors. Additionally, each Mexican Guarantor covenants and agrees that it will take all necessary and appropriate action in order to grant in favor of the Mexican Process Agent, and within the fifteen (15) calendar days immediately following the applicable Accession Date, a document of authority or power of attorney granted by each Mexican Guarantor in favor of the Mexican Process Agent in full compliance with Mexican law and duly formalized for its validity in Mexico, through such corporate actions as may be required by each Mexican Guarantor’s incorporation documents and bylaws in order to fully and duly formalize the designation of the Mexican Process Agent as each Mexican Guarantor’s agent for service of process in the United States of America in accordance with Mexican law. Each Mexican Guarantor hereby agrees to provide a copy of the formalization of the designation of the Mexican Process Agent within the twenty-five (25) Business Day immediately following the Accession Date of such right does not impair the rights of the Holders under the Guarantee.Mexican Guarantor. 155 1233099.09-CHISR02A - MSW [Signature Pages Follow]
Appears in 1 contract
Samples: Assignment and Acceptance Agreement (New Fortress Energy Inc.)
Guarantees. Subject to this Article 1011, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note 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 Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, of and interestinterest and Special Interest, if any, on, on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, of and interestinterest and Special Interest, if any, on, on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Guarantees. Subject This Security may after the date hereof be entitled to this Article 10, each certain Guarantees made for the benefit of the Guarantors hereby, jointly Holders. Reference is hereby made to the Indenture for the terms of any Guarantee (including any terms of subordination of such Guarantee that may apply). The Company will furnish to any Holder of record of Securities upon written request and severally, without charge a copy of the Indenture. A-9 [Form of Notation on Security Relating to Guarantee] SENIOR SUBORDINATED GUARANTEE The Guarantor (as defined in the Indenture referred to in the Security upon which this notation is endorsed) hereby unconditionally guarantees to each Holder of on a Note authenticated and delivered senior subordinated basis (such guarantee by the Trustee Guarantor being referred to herein as the "Guarantee") the due and to the Trustee and its successors and assigns, irrespective punctual payment of the validity and enforceability of this Indentureprincipal of, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interestinterest and Additional Interest, if any, on, on the Notes will be promptly paid in full when dueSecurities, whether at maturity, by acceleration, redemption acceleration or otherwise, the due and punctual pay- ment of interest on the overdue principal principal, premium and premium, if any of, interest and interestAdditional Interest, if any, on, on the Notes, if any, if lawfulSecurities, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performedTrustee, all in accordance ac- cordance with the terms hereof and thereof; and (b) set forth in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms Article Eleven of the extension or renewal, whether at stated maturity, by acceleration or otherwiseIndenture. In addition The obligations of the Guarantor to the foregoing, each Guarantor also agrees, unconditionally Holders of Securities and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, pursuant to the extent theretofore dischargedGuarantee and the Indenture are expressly set forth, shall be reinstated and are expressly subordinated and subject in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation payment to the Holders in respect of any obligations guaranteed hereby until prior payment in full of all obligations guaranteed herebyGuarantor Senior Indebtedness of such Guarantor, to the extent and in the manner provided, in Article Twelve of the Indenture, and reference is hereby made to such Indenture for the precise terms of the Guar- xxxxx therein made. Each Guarantor further agrees that, as between The Guarantee shall not be valid or obligatory for any purpose until the Guarantors, cer- tificate of authentication on the Securities upon which the Guarantee is noted shall have been executed by the Trustee under the Indenture by the manual sig- nature of one hand, of its authorized officers. This Guarantee shall be governed by and construed in accordance with the Holders and the Trustee, on the other hand, (x) the maturity laws of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for State of New York without regard to principles of conflicts of law. This Guarantee is subject to release upon the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) terms set forth in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due Inden- ture. Newport News Shipbuilding and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.Dry Dock Company By: ________________________________________ Name: Title:
Appears in 1 contract
Samples: Newport News Shipbuilding Inc
Guarantees. Subject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note 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 Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations Section 5.15(a) of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performedSeller Disclosure Schedule contains a true and correct list of all guarantees, all in accordance with the terms hereof and thereof; and indemnities, surety bonds, bank guarantee, keepwell agreement, consumer financing arrangements, obligations under any Contract (bother than Seller LCs) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation commitment, understanding, agreement or obligation primarily relating to either the Company Assumed Liabilities or the GuarantorsBusiness for which Seller or any Retained Dublin Subsidiary is or may be liable as a guarantor or for which Seller or any Retained Dublin Subsidiary is required to provide financial support in any form whatsoever or by reason of performance of guarantees outstanding as of the date hereof, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, but excluding (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, under Shared Contracts and (y) obligations relating to Indebtedness for borrowed money of Seller and its Subsidiaries that are not Assumed Liabilities (the “Seller Guarantees”), the maximum amount guaranteed thereunder and, as of the date set forth on such schedule, the amount of the third party guaranteed indebtedness with respect to such Seller Guarantee that is outstanding as of such date (other than any Seller Guarantees that will terminate or expire prior to the Effective Time). After the date hereof, Seller shall not enter into any Seller Guarantee without the consent of Buyer (not to be unreasonably withheld, conditioned or delayed), other than (i) any Seller Guarantees (or renewal or extension thereof) that will terminate or expire prior to the Effective Time, (ii) new guarantees in connection with any customer financing program (provided that the outstanding Seller Guarantees under customer financing program shall not exceed $10,000,000 in the event of aggregate at any declaration of acceleration of such obligations as time), (iii) any Seller Guarantees contemplated by the Pre-Closing Reorganization and (iv) any Seller Guarantees (other than those contemplated by clause (ii) hereof) provided in Article 6 hereofthe ordinary course of business that will remain in effect immediately following the Closing under which the maximum amount guaranteed, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from together with any non-paying Guarantor so long Seller Guarantees in existence as the exercise of such right does not impair the rights of the Holders date hereof that remain outstanding as of the Closing Date, shall not exceed $10,000,000 in the aggregate. Prior to the Closing Date, Seller, Buyer and the Transferred Subsidiaries shall cooperate and shall use their respective commercially reasonable efforts to terminate, or, if the Parties are unable to so terminate, cause Buyer or one of the Transferred Subsidiaries to be substituted in all respects for Seller or the applicable Retained Dublin Subsidiary in respect of, all obligations of Seller or any Retained Dublin Subsidiary under Seller Guarantees on the GuaranteeClosing Date.
Appears in 1 contract
Guarantees. Subject to this Article 10Each Guarantor party hereto unconditionally guarantees, each of the Guarantors herebyas a primary obligor and not merely as a surety, jointly and severallyseverally with each other Guarantor party hereto, unconditionally guarantees to each Holder of a Note authenticated the due and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective punctual payment of the validity principal of and enforceability interest on the Revolving Loans and of this Indentureall other Obligations, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal when and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when as due, whether at maturity, by acceleration, redemption by notice or prepayment or otherwise. Each Guarantor party hereto further agrees that the Obligations may be extended and renewed, in whole or in part, without notice to or further assent from it, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder that it will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of remain bound upon its guarantee notwithstanding any extension of time of payment or renewal of any Notes Obligations. The Obligations of each Guarantor hereunder will be 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 Guarantor hereunder or pursuant to its contribution Obligations hereunder, will result in the Obligations of such Guarantor hereunder not constituting a fraudulent conveyance or fraudulent transfer under federal or state law. The net worth of any Guarantor for the purposes of this Article XVI shall include any claim of such Guarantor against the Borrowers for reimbursement and any claim against any other Guarantor for contribution. To the fullest extent permitted by law, each Guarantor party hereto waives presentment to, demand of payment from and protest to the Borrowers or any other Person of any of the Obligations, and also waives notice of acceptance of its guarantee and notice of protest for nonpayment. To the fullest extent permitted by law, the obligations of a Guarantor party hereto hereunder shall not be affected by (a) the failure of the Agent or any Lender to assert any claim or demand or to enforce any right or remedy against any Borrower or any other Guarantor under the provisions of this Agreement or any of such the other obligationsLoan Documents or otherwise; (b) any rescission, waiver, amendment or modification of any of the terms or provisions of this Agreement, any of the other Loan Documents, any guarantee or any other agreement; (c) the release of any security held by the Agent or any Lender for the Obligations or any of them; or (d) the failure of the Agent or any Lender to exercise any right or remedy against any other Guarantor of the Obligations. Each Guarantor party hereto further agrees that same will be promptly paid in full its guarantee constitutes a guarantee of payment when due and not of collection, and waives any right to require that any resort be had by the Agent or performed in accordance with the terms any Lender to any security (if any) held for payment of the extension Obligations or renewalto any balance of any deposit account or credit on the books of the Agent or any Lender in favor of any Borrower or any other Person. To the fullest extent permitted by law, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, obligations of each Guarantor also agreesparty hereto hereunder shall not be subject to any reduction, unconditionally and jointly and severally with each other Guarantorlimitation, to pay impairment or termination for any and all expenses (reason, including, without limitation, counsel fees any claim of waiver, release, surrender, alteration or compromise, and expenses) incurred shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due invalidity, illegality or unenforceability of any amount so guaranteed of the Obligations or any performance so guaranteed for whatever reasonotherwise. Without limiting the generality of the foregoing, to the fullest extent permitted by law, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each obligations of each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations party hereto hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except or impaired or otherwise affected by complete the failure of the Agent or any Lender to assert any claim or demand or to enforce any remedy under this Agreement or under any other Loan Document, any guarantee or any other agreement, by any waiver or modification of any provision thereof, by any default, failure or delay, willful or otherwise, in the performance of any of the obligations contained in the Notes and this Indenture. If any Holder Obligations, or the Trustee is required by any court other act or omission which may or might in any manner or to any extent vary the risk of such Guarantor or otherwise to return to the Company, the Guarantors operate as a discharge of such Guarantor as a matter of law or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, equity. Each Guarantor party hereto further agrees that its guarantee shall be reinstated remain in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to effect until the Holders in respect of any obligations guaranteed hereby until indefeasible payment and satisfaction in full of all obligations guaranteed herebythe Obligations and the termination of the Revolving Commitments and shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal or of interest on any Obligation or of any other Obligation is rescinded or must otherwise be returned by the Agent or any Lender upon the bankruptcy or reorganization of any Borrower, Guarantor or otherwise. 109 Each Guarantor further agrees thatparty hereto hereby waives and releases all rights of subrogation against each Loan Party and its property and all rights of indemnification, as between the Guarantorscontribution and reimbursement from each Loan Party and its property, on the one handin each case in connection with this guarantee and any payments made hereunder, and the Holders and the Trusteeregardless of whether such rights arise by operation of law, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction pursuant to contract or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteeotherwise.
Appears in 1 contract
Samples: Loan and Security Agreement (Manhattan Bagel Co Inc)
Guarantees. Subject to the provisions of this Article 1011, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note 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 Notes or the obligations Obligations of the Company Issuers hereunder or thereunder, that: (a) the principal of, premium, interest and premiumLiquidated Damages, if any, of, and interest, if any, on, on the Notes will shall be promptly paid in full when due, whether at maturitythe maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal and of, premium, if any of, interest and interestLiquidated Damages, if any, on, on the Notes, if any, if lawful, and all other obligations Obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will under this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof of this Indenture and thereofthe Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofof this Indenture and the Notes, the recovery of any judgment against the CompanyIssuers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorSubsidiary Guarantor. Each To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuers, any right to require a proceeding first against the CompanyIssuers, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee the Guarantees shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers or Subsidiary Guarantors, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuers or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guaranteethese Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteethese Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guaranteethese Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteethese Guarantees.
Appears in 1 contract
Guarantees. Subject to this Article 10, each Each of the Guarantors hereby, undersigned (the “Guarantors”) hereby jointly and severallyseverally unconditionally guarantees, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the extent set forth in the Indenture dated as of July 15, 2005 by and among PCA LLC, a Delaware limited liability company, as issuer (the “Company”), PCA Finance Corp., a Delaware corporation, as co-issuer (“PCA Finance” and, collectively with the Company, the “Issuers”), the Guarantors, as guarantors, and The Bank of New York Trust Company, N.A., as Trustee (as amended, restated or supplemented from time to time, the “Indenture”), and its successors and assigns, irrespective subject to the provisions of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the due and punctual payment of the principal of, and premium, if any, ofand interest on the Notes, when and interest, if any, on, as the Notes will be promptly paid in full when duesame shall become due and payable, whether at maturity, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal and premium, if any of, and premium and, to the extent permitted by law, interest, if any, on, and the Notes, if any, if lawful, due and punctual performance of all other obligations of the Company Issuers to the Holders Noteholders or the Trustee hereunder or thereunder will be promptly paid in full or performedTrustee, all in accordance with the terms hereof and thereof; set forth in Article Ten of the Indenture, and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition The obligations of the Guarantors to the foregoing, each Guarantor also agrees, unconditionally Noteholders and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under pursuant to this Guarantee and the Indenture are expressly set forth in enforcing any rights under a Subsidiary Guarantee with respect Article Ten of the Indenture, and reference is hereby made to a Guarantor. Failing payment when due the Indenture for the precise terms and limitations of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediatelythis Guarantee. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect Note to any provisions hereof or thereofwhich this Guarantee is endorsed, the recovery of any judgment against the Companyby accepting such Note, any action agrees to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing bound by such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteeprovisions.
Appears in 1 contract
Samples: Security Agreement (Portrait Corp of America, Inc.)
Guarantees. Subject to this Article 10X, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee Notes and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the such Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and of, premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interestpremium, if any, on, and interest on the Notes, Notes (at the applicable rate of interest) if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in the case of any extension of time of payment or renewal of any such Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the such Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this IndentureIndenture or pursuant to Section 10.04 or Section 10.05. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations with respect to such Notes guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof VI for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofVI, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Samples: Indenture (WEX Inc.)
Guarantees. Subject The Purchaser shall use best efforts to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note 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 Notes or the obligations of the Company hereunder or thereunder, that: (a) deliver on or prior to the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations Closing Date but effective as of the Company to the Holders Closing, Guaranty/Bond Replacements for each Guaranty or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereofBond listed on SCHEDULE 5.8; and (b) procure, after the Closing, Guaranty/Bond Replacements for any Guaranty or Bond not listed on SCHEDULE 5.8 and issued or obtained in the Ordinary Course of Business prior to the Closing Date, with such Guaranty/Bond Replacements to be so obtained as promptly as reasonably practicable after the Purchaser learns of the same; provided that, in the case of any extension of time of payment or renewal this clause (b): (1) the procurement of any Notes or such Guaranty/Bond Replacement shall not constitute a waiver of any breach of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred this Agreement by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, Sellers; and (2) the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee Purchaser shall not be discharged except required to procure any such Guaranty/Bond Replacement following the Closing to the extent that the same will result in more than $1,000 of cost or expense to the Purchaser, unless the Sellers agree to reimburse the Purchaser for such cost or expense. Pending such procurement as described in the foregoing clause (b) (including if such procurement is not required by complete performance sub-clause (2) of the foregoing clause (b)), the Purchaser shall indemnify the Sellers and each such Non-Company Affiliate against all and any liabilities, losses, costs, charges, proceedings, actions, claims, demands or expenses arising out of or in connection with any such Guaranty or Bond. As used herein, the term "GUARANTY/BOND REPLACEMENT" means any guaranties, bonds, consideration or other undertakings, as the case may be, needed to replace and terminate any Guaranty or Bond and so as to obtain the complete and unconditional release of the Sellers and any Non-Company Affiliates from all obligations contained in connection with each such Guaranty or Bond. As used herein, the Notes and this Indenture. If term "GUARANTY OR BOND" means any Holder guaranty, keepwell agreement, comfort letter, or the Trustee is required by any court or otherwise to return similar undertaking issued prior to the Closing Date to or for the benefit of, or any letter of credit, surety bond, performance bond, customs bond, excise bond or similar undertaking obtained prior to the Closing Date by, any Seller or any Non-Company Affiliate to support or facilitate business transactions by a Company, the Guarantors US Business, the UK Business or the German Business, and any security furnished by a Seller or any custodiansuch Non-Company Affiliate in connection therewith. As used herein, trusteethe term "NON-COMPANY AFFILIATE" means any Affiliate of any Seller or of any Company, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or but such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it term shall not be entitled to include any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeCompany.
Appears in 1 contract
Guarantees. Subject to this Article 1011, the Intercreditor Agreement and the Agreed Security Principles, each of the Guarantors hereby, jointly and severally, severally and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee (or Authentication Agent) and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company Issuer hereunder or thereunder, that: (ai) the principal and of, premium, if any, of, interest and interestAdditional Amounts, if any, on, on the Notes will shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interestpremium, if any, on, the Notesinterest and Additional Amounts, if any, if lawfulon the Notes (to the extent permitted by law), and all other obligations of the Company Issuer to the Holders or the Trustee hereunder or thereunder will shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to otherwise (all the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by foregoing being hereinafter collectively called the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor“Guaranteed Obligations”). Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the CompanyIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Without limiting the generality of the foregoing, each Guarantor’s liability under its Note Guarantee shall extend to all obligations under the Notes and this Indenture (including, without limitation, interest, fees, costs and expenses) that would be owed but for the fact that they are unenforceable or not allowable due to any proceeding under Bankruptcy Law involving the Issuer or any Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuer, any right to require a proceeding first against the CompanyIssuer, protest, notice and all demands whatsoever and covenant that this Subsidiary Note Guarantee shall not be discharged except by complete payment and performance of the obligations contained in the Notes and this Indenture and the obligations of each Guarantor under this Note Guarantee shall not be subject to any reduction, limitation, impairment, set-off, defense, counterclaim, discharge or termination for any reason other than the complete payment and performance of the obligations contained in the Notes and this Indenture. If any Holder Holder, the Trustee or the Trustee Security Agent is required by any court or otherwise to return to the CompanyIssuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either of the Company Issuer or the Guarantors, any amount paid by either to the Trustee Trustee, the Security Agent or such Holder, this Subsidiary Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby or any collateral securing any such obligations until payment and performance in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Note Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.
Appears in 1 contract
Guarantees. (a) Subject to this Article 1013, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note 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 Notes or held thereby and the obligations of the Company hereunder or and thereunder, that: (a) the principal of and premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturitythe Maturity Date, by acceleration, redemption upon repurchase or otherwise, and interest on the overdue principal of and premium, if any of, and interest, if any, on, (to the extent permitted by law) interest on the Notes, if any, if lawful, and all other payment obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturitythe Maturity Date, by acceleration acceleration, upon repurchase or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee An Event of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Default with respect to any provisions hereof or thereofthe Notes under this Indenture shall constitute an event of default under the Guarantees, and shall entitle the recovery Holders to accelerate the obligations of any judgment against the Company, any action to enforce Guarantors hereunder in the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in manner and to the event of insolvency or bankruptcy same extent as the Obligations of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Samples: Indenture (Whiting Petroleum Corp)
Guarantees. Subject to this Article 10, each of the Guarantors (a) Each Alenco Guarantor hereby, jointly and severallyseverally with the other Guarantors, unconditionally and irrevocably guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this the Indenture, the Notes or the obligations of the Company Issuers or any other Guarantors to the Holders or the Trustee hereunder or thereunder, that: (a) (x) the due and punctual payment of the principal and of, premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when dueand as the same shall become due and payable, whether at maturity, upon redemption or repurchase, by acceleration, redemption acceleration or otherwise, (y) the due and punctual payment of interest on the overdue principal and premium, if any of, and (to the extent permitted by law) interest, if any, on, on the Notes, if any, if lawful, Notes and (z) the due and punctual payment and performance of all other obligations of the Issuer and all other obligations of the Company other Guarantors (including under the Note Guarantees), in each case, to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed(including amounts due the Trustee under Section 7.07 of the Indenture), all in accordance with the terms hereof and thereofthereof (collectively, the “Guarantee Obligations”); and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when the due or performed and punctual payment and performance of Guarantee Obligations in accordance with the terms of the extension or renewal, whether at stated maturity, upon redemption or repurchase, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed guaranteed, or failing performance of any performance so guaranteed other obligation of the Issuers to the Holders under the Indenture or under the Notes, for whatever reason, the Guarantors each Alenco Guarantor shall be jointly and severally obligated to pay pay, or to perform or cause the performance of, the same immediately. Each A Default under the Indenture or the Notes shall constitute an event of default under the Note Guarantees, and shall entitle the Holders of Notes to accelerate the obligations of each Alenco Guarantor agrees that this is a guarantee of payment thereunder in the same manner and not a guarantee of collection. The Guarantors hereby agree that their to the same extent as the obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeIssuers.
Appears in 1 contract
Samples: Second Supplemental Indenture (Ply Gem Holdings Inc)
Guarantees. Subject to this Article 108, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, this First Supplemental Indenture, the Notes or the obligations of the Company Issuers hereunder or thereunder, that: (a) the principal and of premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and premium, if any of, and interest, if any, on, interest on the Notes, if any, if lawful, and all other obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration pursuant to Section 6.02 hereof or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors Each Guarantor hereby agree agrees that their its obligations hereunder with regard to this Note Guarantee shall be joint and several, unconditional, irrespective of the validity, regularity validity or enforceability of the Notes or the obligations of the Issuers under the Indenture, this First Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the CompanyIssuers or any other obligor with respect to the Indenture, this First Supplemental Indenture, the Notes or the obligations of the Issuers under the Indenture, this First Supplemental Indenture or the Notes, any action to enforce the same or any other circumstance circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor hereby further, to the extent permitted by law, waives diligenceand relinquishes all claims, presentmentrights and remedies accorded by applicable law to guarantors and agrees not to assert or take advantage of any such claims, demand of paymentrights or remedies, filing of claims with a court in the event of insolvency or bankruptcy of the Company, including but not limited to: (a) any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance any of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under or the Guarantee.Issuers (each a "Benefited Party"),
Appears in 1 contract
Samples: Metricom Inc / De
Guarantees. Subject to this Article 10, each of the Guarantors hereby, Each Guarantor jointly and severally, unconditionally severally guarantees to ---------- each Holder holder of a Note authenticated the due and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective punctual payment of the validity and enforceability principal of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any) and interest on such Note, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal (and premium, if any) and fees and expenses and all other amounts due in connection with such Note, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration or otherwise in accordance with the terms of such Note and of this Agreement. In the case of the failure of the Company punctually to make any of, and interestsuch payment of principal (or premium, if any) or interest, onthe Guarantors hereby jointly and severally agree to cause any such payment to be made punctually when and as the same shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, or are required to be redeemed pursuant to Section 9 or otherwise, and as if such payment were made by the Company. The Guarantees of each Guarantor are, to the extent and in the manner set forth in Section 12, subordinate and junior in right of payment to the prior payment in full in cash of all Senior Debt of such Guarantor. The obligations of each Guarantor 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, will result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law. Each Guarantor hereby agrees that to the extent that a Guarantor shall have paid more than its proportionate share (as determined by the net worth of such Guarantor as compared to the net worth of such Guarantor and all other Guarantors in the aggregate, the value of such net worth to be determined as the greater of such Guarantor's net worth on the date hereof or the date on which a payment is required pursuant to this paragraph or pursuant to the Guarantee) of any payment made hereunder, such Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder which has not paid its proportionate share of such payment. Each Guarantor's right of contribution shall be subject to the terms and conditions of Section 12. The provisions of this Section 11 shall in no respect limit the obligations and liabilities of any Guarantor to any holder of the Notes, if anyand each Guarantor shall remain liable to any holder of the Notes for the full amount guaranteed by such Guarantor hereunder. Except for notice and other formalities specifically required hereunder or under the Notes, if lawfuleach Guarantor waives (to the extent permitted by applicable law) notice of acceptance of the Guarantees, of any action taken or omitted in reliance thereon or of any default in the payment of any such sums or in the performance of any covenants and all other obligations agreements of the Company and the Guarantors contained in this Agreement or in any Notes and any presentment, demand, protest or notice of any kind. Each Guarantor hereby agrees that the execution and delivery of each Guarantee executed and delivered by such Guarantor shall be conclusive evidence against such Guarantor that such Guarantee is absolute. Each Guarantor hereby agrees that its obligations under the Guarantees constitute a present and continuing guarantee of payment and not of collectibility, and shall be absolute, and to the Holders extent permitted by applicable law, such obligations shall not be subject to any counterclaim, setoff, deduction or defense based upon claim any Guarantor may have against the Trustee hereunder Company, any holder of Notes or thereunder will be promptly paid any other Person, and shall remain in full force and effect without regard to, and shall not be released, discharged or performedin any way affected or impaired by any thing, all event, happening, matter, circumstance or condition whatsoever (whether or not such Guarantor shall have any knowledge or notice thereof or consent thereto), including, without limitation: (a) any amendment or modification of or supplement to any provision of this Agreement or any of the Notes, or any assignment or transfer thereof in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewalNotes, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expensesany renewal or extension of the terms of payment of any of the Notes or the granting of time in respect of any payment thereof, or any furnishing or acceptance of security or any release of any security so furnished or accepted for any of the Notes; (b) incurred by any waiver, consent, extension, granting of time, forbearance, indulgence or other action or inaction under or in respect of the Trustee under Guarantees, this Indenture Agreement or any of the Notes, or any exercise or nonexercise of any right, remedy or power in enforcing respect hereof or thereof; (c) any rights under a Subsidiary Guarantee bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceedings with respect to a Guarantor. Failing payment when due the Company, or any other Person or the properties or creditors of any amount so guaranteed of them; (d) the occurrence of any Event of Default under, or any performance so guaranteed for whatever reasoninvalidity or any unenforceability of, or any misrepresentation, irregularity or other defect in, this Agreement or any of the Notes or any other agreement; (e) or any transfer of any assets to or from the Company, including, without limitation, any transfer or purported transfer to the Company from any Person, any invalidity, illegality of, or inability to enforce, any such transfer or purported transfer, any consolidation or merger of the Company with or into any other corporation or entity, or any change whatsoever in the objects, capital structure, constitution or business of the Company; (f) any failure on the part of the Company or any Person to perform or comply with any term of the Notes, this Agreement or any other agreement; (g) any suit or other action brought by any stockholders or creditors of, or by, the Company or any other Person for any reason whatsoever, including, without limitation, any suit or action in any way attacking or involving any issue, manner or thing in respect of any of the Guarantees, the Notes, this Agreement or any other agreement; (h) any lack or limitation of status or of power, incapacity or disability of the Company or of any director or agent of any of them; or (i) any other thing, event, happening, matter, circumstance or condition whatsoever, not in any way limited to the foregoing, The Guarantors hereby agree that if they shall make any payment in respect of any Note, they shall, to the extent permitted by applicable law, be jointly subrogated to the rights of the holder of such Note in respect of which such payment was made (but shall not for any purpose be deemed a holder of any Note); provided, however, that such rights of subrogation -------- ------- and severally obligated all indebtedness and claims arising therefrom shall be, and each Guarantor agrees that it is, and shall at all times be, in all respects subordinate and junior to pay the same immediatelyprior payment in full, in cash, of all indebtedness evidenced by the Notes in respect of which payment was not made. Each Guarantor agrees that this is a guarantee the foregoing right of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee subrogation shall not be discharged except by complete performance of the obligations contained in the Notes effective until, and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to receive any right of subrogation in relation to the Holders payment, under any condition, in respect of any obligations guaranteed hereby until payment such subrogated claim unless and until, all Notes and all other amounts which may become due, or are stated in full of all obligations guaranteed herebysuch Guarantor's Guarantees to become due, shall have been Fully Satisfied. Each Guarantor further waives any right it may have to (a) require the holder of any Note to proceed against the Company or against any other party; (b) exercise any right or remedy arising by reason of any performance by it of any Guarantee, whether by subrogation or otherwise, against the Company or any other Guarantor; or (c) to require the Company to pursue any remedy within its power. Each Guarantor agrees thatthat the Guarantees shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Company or any Guarantor is rescinded or must be otherwise restored by any holder of a Note, whether as between a result of any proceedings in bankruptcy or reorganization or otherwise. Without limiting the Guarantorsgenerality of the Guarantees, on the one hand, if an Event of Default shall have occurred and be continuing and the Holders and the Trustee, on the other hand, holders of Notes (xor permitted assignees thereof) the maturity are prevented by applicable law from exercising their remedies (or any of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes them) under Section 8 of this Subsidiary GuaranteeAgreement, notwithstanding any stay, injunction the holders of Notes (or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payablepermitted assignees thereof) shall forthwith become be entitled to receive hereunder from each Guarantor, upon demand therefor, the sums which would have otherwise been due had such remedies been exercised. Each Guarantor shall pay each holder of Notes such further amounts as shall be sufficient to cover the reasonable cost and payable by the Guarantors for the purpose expense of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from collecting any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders sums under the GuaranteeGuarantees, or of otherwise enforcing the Guarantees, including, in any case, reasonable compensation to its attorneys for all reasonable services rendered in that connection.
Appears in 1 contract
Guarantees. Subject to this Article 10(a) For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Guarantors herebyGuarantors, hereby jointly and severally, severally and irrevocably and unconditionally guarantees to the Trustee and to each Holder of a Senior Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and or enforceability of this Indenture, Indenture or the Senior Notes or the obligations Obligations of the Company hereunder or thereunderand the Guarantors under this Indenture, that: (ai) the principal and of, premium, if any, of, and any interest, if anyon the Senior Notes (including, onwithout limitation, any interest that accrues after the Notes filing of a proceeding of the type described in Sections 6.1(g) and (h)) and any fees, expenses and other amounts owing under this Indenture will be promptly duly and punctually paid in full when due, whether at maturityStated Maturity, by acceleration, redemption call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase or otherwise, and interest on the overdue principal and premium, if any of, and (to the extent permitted by law) interest, if any, on, on the Senior Notes and any other amounts due in respect of the Senior Notes, if any, if lawful, and all other obligations Obligations of the Company and the Guarantors to the Holders of the Senior Notes under this Indenture and the Senior Notes, whether now or the Trustee hereunder or thereunder hereafter existing, will be promptly paid in full or performed, all strictly in accordance with the terms hereof and thereofof the Senior Notes; and (bii) in case of any extension of time of payment or renewal of any Senior Notes or any of such other obligationsObligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration acceleration, call for redemption, upon Change of Control Offer, Asset Sale Offer, purchase or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing If payment is not made when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors each Guarantor shall be jointly and severally obligated to pay the same immediatelyindividually whether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Sction 6.2. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations An Event of Default under this Indenture or the Senior Notes shall constitute an Event of Default under this Guarantee, and shall entitle the Holders to accelerate the Obligations of each Guarantor hereunder shall be unconditional, irrespective in the same manner and to the same extent as the Obligations of the validity, regularity Company. This Guarantee is intended to be superior to or enforceability pari passu in right of payment with all Indebtedness of the Notes or this Indenture, the absence Guarantors and each Guarantor's Obligations are independent of any action to enforce the same, any waiver or consent by any Holder Obligation of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same Company or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeGuarantor.
Appears in 1 contract
Guarantees. Subject to the provisions of this Article 10Eleven, each of the Guarantors hereby, Guarantor hereby jointly and severally, severally unconditionally guarantees to each Holder of a Note Security 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 Notes Securities or the obligations of the Company Issuer or any of the other Guarantors to the Holders or the Trustee hereunder or thereunder, that: (a) the principal of and premium, if any, of, and interest, if any, on, interest on the Notes Securities will be promptly duly and punctually paid in full when due, whether at maturity, by acceleration, redemption acceleration or otherwise, and interest on the overdue principal and premium, if any of, and (to the extent permitted by law) interest, if any, on, on the Notes, if any, if lawful, Securities and all other obligations of Obligations on the Company to the Holders or the Trustee hereunder or thereunder Securities will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligationsObligations on the Securities, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at final stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed guaranteed, for whatever reason, the Guarantors shall each Guarantor will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Securities shall constitute an event of default under the Guarantees, and shall entitle the Holders of Securities to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Issuer on the Securities. Each Guarantor of the Guarantors hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder holder of the Notes Securities with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the CompanyIssuer, any action to enforce the same same, whether or not a Guarantee is affixed to any particular Security, or any other circumstance (other than payment) which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor of the Guarantors hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuer, any right to require a proceeding first against the CompanyIssuer, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall will not be discharged except by complete performance of the obligations contained in the Notes Securities, this Indenture and this Indenturethe Guarantees. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuer or to any Guarantor, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuer or the Guarantorssuch Guarantor, any amount paid by either the Issuer or such Guarantor to the Trustee or such Holder, this Subsidiary Guaranteethe Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders of Securities and the Trustee, on the other hand, (xa) subject to this Article Eleven, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Section 6.02 for the purposes of this Subsidiary Guaranteethe Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (yb) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofSection 6.02, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guaranteethe Guarantees. The Guarantees shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation or reorganization, should the Issuer 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 Issuer's assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities, whether as a "voidable preference," "fraudulent transfer" or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. No stockholder, officer, director, employee or incorporator, past, present or future, of any Guarantor, as such, shall have any personal liability under the Guarantees by reason of his, her or its status as such stockholder, officer, director, employee or incorporator. The Guarantors shall have the right to seek contribution from the Issuer and any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeGuarantees. Each Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is the intention of all such parties that in no event shall any Guarantor's obligations under its Guarantee be subject to avoidance under any applicable fraudulent conveyance or similar law of any relevant jurisdiction. Therefore, in the event that the Guarantees would, but for this sentence, be subject to avoidance, then the liability of the Guarantors under the Guarantees shall be reduced to the extent necessary such that such Guarantees shall not be subject to avoidance under the applicable fraudulent conveyance or similar law. Subject to the preceding limitation on liability, the Guarantee of each Guarantor constitutes a guarantee of payment in full when due and not merely a guarantee of collectability.
Appears in 1 contract
Samples: Kilovac International Inc
Guarantees. Subject to this Article 10, each of the Guarantors herebyEach Guarantor hereby unconditionally guarantees, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assignsassigns (a) the full and punctual payment of principal of (and premium, irrespective if any) and interest on the Securities when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the validity Issuer under this Indenture and enforceability the Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Issuer under this Indenture and the Securities (all the foregoing being hereinafter collectively called the “Obligations”). Each Guarantor further agrees that the Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Guarantor, and that such Guarantor 105 will remain bound under this Article Thirteen notwithstanding any extension or renewal of any Obligation. Each Guarantor waives presentation to, demand of, payment from and protest to the Issuer of any of the Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Securities or the Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) any change in the ownership of such Guarantor. Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Obligations. Except as expressly set forth in Sections 805, 806, 1017, 1019, 1202, 1203, 1303 and 1308, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the Company hereunder invalidity, illegality or thereunderunenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, that: the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of (a) the principal and or premium, if any) or interest on any Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, of, and interestupon the failure of the Issuer to pay the principal of (or premium, if any, on, ) or interest on any Obligation when and as the Notes will be promptly paid in full when same shall become due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Obligation, each Guarantor hereby promises to 106 and interest on will, upon receipt of written demand by the overdue principal and premiumTrustee, if any offorthwith pay, and interestor cause to be paid, if anyin cash, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with an amount equal to the terms hereof and thereof; and sum of (bi) in case of any extension of time of payment or renewal of any Notes or any the unpaid amount of such other obligationsObligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally (ii) accrued and jointly and severally with each other Guarantor, to pay any and all expenses unpaid interest on such Obligations (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, but only to the extent theretofore discharged, shall be reinstated in full force not prohibited by law) and effect(iii) all other monetary Obligations of the Issuer to the Holders and the Trustee. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Obligations guaranteed hereby until payment in full in cash of all obligations guaranteed herebyObligations. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Five for the purposes of this Subsidiary Guaranteesuch Guarantor’s Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereofFive, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose purposes of this Subsidiary GuaranteeSection 1301. The Guarantors shall have Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the right to seek contribution from Trustee or any non-paying Guarantor so long as the exercise of such right does not impair the Holder in enforcing any rights of the Holders under the Guaranteethis Section 1301.
Appears in 1 contract
Guarantees. Subject to this Article 10Each of News Corporation and the other Guarantors, each of the Guarantors herebyif any, for consideration received, jointly and severally, unconditionally and irrevocably guarantees on a senior basis to each Holder holder of Securities of a Note authenticated and delivered series designated pursuant to Section 3.01 as being guaranteed by the Trustee each Guarantor so specified and to the Trustee Trustee, as applicable, (1) the due and its successors and assigns, irrespective punctual payment of the validity and enforceability of this Indentureprincipal of, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, and interest on such Security (including interest accruing on or after filing of any petition in bankruptcy or reorganization whether or not a claim for post-filing interest is allowed in such proceeding), when and as the same shall become due and payable, whether at maturity, as a result of redemption, upon a Change of Control Triggering Event, by acceleration or otherwise, (ii) the due and punctual payment of interest on overdue principal of, premium and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premiumSecurities, if any of, and interest, if any, on, to the Notes, if any, if extent lawful, (iii) the due and punctual performance of all other obligations of the Company under this Indenture to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performedTrustee, including payment obligations under Section 6.06, all in accordance with the terms hereof of such Security and thereof; of this Indenture, and (biv) in the case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, at redemption, by acceleration or otherwise, to be paid by such Guarantor or through the other Guarantors as provided below. In addition to the foregoingall respects, each relevant Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of the validity, regularity or enforceability of the Notes any such Security or this Indenture, the absence of any action failure to enforce the sameprovisions of any such Security or this Indenture, any waiver waiver, modification or consent indulgence granted to NAI with respect thereto, by any the Holder of such Security or the Notes with respect to any provisions hereof or thereofTrustee, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance circumstances which might may otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency merger or bankruptcy of the CompanyNAI, any right to require a proceeding first against NAI, the Companybenefit of discussion, protest, protest or notice with respect to any such Security or the Indebtedness evidenced thereby and all demands whatsoever whatsoever, and covenant covenants that this Subsidiary Guarantee shall will not be discharged as to any such Security or the Trustee except by complete performance payment in full of the principal thereof, premium, if any, and interest thereon and as provided in Section 4.01 and payment in full of the obligations contained set forth in the Notes and this IndentureSection 6.06. If the Trustee or any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Company or each Guarantor or any custodian, trusteereceiver, liquidator liquidator, trustee or other similar official acting in relation to either the Company or the Guarantorseach Guarantor, any amount paid by either to the Trustee or such HolderHolder in respect of any Security, this Subsidiary Guarantee, to the extent theretofore dischargeddischarged by the payment of such amount, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantorseach Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 5 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such obligations as provided in Article 6 5 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors each Guarantor for the purpose of this Subsidiary Guarantee. The obligations of each Guarantor hereunder shall be joint and several. For purposes of this Article 12, the liability of News Corporation shall be that amount from time to time equal to the aggregate of its liability hereunder, which shall be limited to the aggregate amount of the obligation as stated in the first sentence of this Section 12.01 with respect to the Securities of any particular series guaranteed pursuant to Section 3.01 and this Article 12 issued pursuant to this Indenture. For purposes of this Article 12, the liability of each Guarantor, other than News Corporation, shall be that amount from time to time equal to the aggregate liability of such Guarantor hereunder, but shall be limited to the least of (A) the aggregate amount of the obligation as stated in the first sentence of this Section 12.01 with respect to the Securities of any particular series guaranteed pursuant to Section 3.01 and this Article 12 issued pursuant to this Indenture or (B) the amount, if any, which would not have (i) rendered such Guarantor "insolvent" (as such term is defined in Section 1.01 (29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of this Indenture) or (ii) left it with unreasonably small capital at the time its Guarantee of the Securities was entered into, after giving effect to the incurrence of existing Indebtedness immediately prior to such time, provided, that it shall be a presumption in any lawsuit or other proceeding in which a Guarantor (other than News Corporation) is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors, of such Guarantor or a trustee in bankruptcy of such Guarantor, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of such Guarantor is limited to the amount set forth in (B). (The liability of News Corporation pursuant to the second preceding sentence and the liability of each Guarantor other than News Corporation pursuant to the immediately preceding sentence are hereinafter referred to as the "Base Guaranty Liability".) In making any determination as to the solvency or sufficiency of capital of a Guarantor in accordance with the second preceding sentence, the right of such Guarantor to contribution from other Guarantors, to subrogation pursuant to the next paragraph of this Section 12.01 and any other rights such Guarantor may have, contractual or otherwise, shall be taken into account. Each Guarantor shall be subrogated to all rights of the Holder of, any Securities and the Trustee against NAI or any of the other Guarantors shall have pursuant to the provisions of this Guarantee; provided, however, that until the payment in full of all obligations and all other amounts payable under this Guarantee, the Guarantors hereby irrevocably waive any claim or other rights which they each may now or hereafter acquire against the Company or any of the other Guarantors that arise from the existence, payment, performance or enforcement of the Guarantors' obligations under this Guarantee, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, any right to participate in any claim or remedy of any Holder and the Trustee on behalf of such Holder against the Company or any of the other Guarantors or any collateral which any such Holder or the Trustee on behalf of such Holder hereafter acquires, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to seek contribution take or receive from the Company or any nonof the other Guarantors, directly or indirectly, in cash or other property or by set-paying Guarantor so long as the exercise off or in any other manner, payment or security on account of such right does not impair claim or other rights. If any amount shall be paid to the rights Guarantors in violation of the Holders preceding sentence at any time prior to the payment in full of all obligations and all other amounts payable under this Guarantee, such amount shall be deemed to have been paid to the GuaranteeGuarantors for the benefit of, and held in trust for the benefit of, any Holder and the Trustee on behalf of any such Holder, and shall forthwith be paid to the Trustee for the benefit of such Holder to be credited and applied upon such guaranteed obligations, whether matured or unmatured, in accordance with the terms of this Indenture. The Guarantors acknowledge that the waiver set forth in this Section 12.01 is knowingly made. The Guarantee set forth in this Section 12.01 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: News Corp
Guarantees. Subject to this Article 10, each Each of the Guarantors hereby, jointly and severallyhereby fully, unconditionally guarantees and irrevocably Guarantees, as primary obligor and not merely as surety, on a senior subordinated basis to each Holder of a Note authenticated and delivered by the Trustee or the Authenticating Agent and to the Trustee and its the Note Security Agent and each of their successors and assigns, irrespective assigns the full and prompt performance of all of the validity Company’s obligations under this Indenture and enforceability the Notes including the payment of principal of, and premium, if any, interest and Additional Amounts, if any, on the Notes and all other obligations of the Company to the Holders, the Trustee and the Note Security Agent hereunder and under the Notes. The obligations of the Company under this Indenture and Notes shall be referred to herein as the “Obligations”. The obligations of each of the Guarantors set forth in this Article X shall be referred to herein as the “Guarantees.” Each Guarantor further agrees that the Obligations may be extended or renewed by the Trustee for and on behalf of itself and the Holders and the Note Security Agent in an amount equal to the sum of (i) the unpaid amount of the Obligations then due and owing and (ii) accrued and unpaid interest on the Obligations then due and owing. Payments made under the Guarantees shall be made to the Trustee on behalf of the Holders or the Note Security Agent, as the case may be. The Guarantors waive presentation to, demand of payment from and protest to the Company of any of the Obligations and also waive notice of protest for nonpayment. Each of the Guarantors waives notice of any default under the Notes or the Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any Pledge held by any Holder, the Note Security Agent or the Trustee for the Obligations or any of them; or (e) any change in the ownership of the Company. Each Guarantor further agrees that each Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Obligations. The obligations of each of the Guarantors hereunder shall, subject to this Article X, Article VIII and Sections 11.2 and 11.3, not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall, subject to this Article X, Article VIII and Sections 10.2, not be discharged or impaired or otherwise affected by the Company hereunder failure of any Holder to assert any claim or thereunderdemand or to enforce any remedy under this Indenture, that: (a) the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of a Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantee is a confirming Guarantee and will remain in full force and effect until payment in full of all of the Obligations. Subject to the provisions of Section 10.4 hereof, each Guarantor further agrees that its Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal and premiumof or interest, or Additional Amounts, if any, ofon any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise. Subject to the provisions of Section 10.3 hereof, in furtherance of the foregoing and interestnot in limitation of any other right which any Holder has at law or in equity against the Guarantors, if anyby virtue hereof, on, upon the Notes will be promptly paid in full failure of the Company to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agreeshereby promises to and will, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred upon receipt of written demand by the Trustee under this Indenture Trustee, forthwith pay, or cause to be paid, in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reasoncash, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, for and on behalf of itself and the Holders an amount equal to the extent theretofore discharged, shall be reinstated in full force unpaid amount of such Obligations then due and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed herebyowing. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the TrusteeHolders, on the other hand, but subject always to Sections 1.2 hereof, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof this Indenture for the purposes of this Subsidiary Guaranteethe Guarantees herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, hereby and (y) in the event of any such declaration of acceleration of such obligations as provided in Article 6 hereofObligations, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights purposes of the Guarantees. Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under the Guarantee.this Article X.
Appears in 1 contract
Guarantees. Subject to this Article 10, each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees guarantees, on a senior unsecured basis, to each Holder of a Note 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 Notes or held thereby and the obligations Obligations of the Company Issuers hereunder or and thereunder, that: (a) the principal and of, premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturityStated Maturity, by acceleration, upon repurchase or redemption or otherwise, and interest on the overdue principal and of, premium, if any of, (to the extent permitted by law) and interest, if any, on, interest on the Notes, if any, if lawful, and all other obligations payment Obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturityStated Maturity, by acceleration acceleration, upon repurchase or redemption or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Notes shall constitute an event of payment default under the Guarantees, and not a guarantee shall entitle the Holders to accelerate the obligations of collectionthe Guarantors hereunder in the same manner and to the same extent as the Obligations of the Issuers. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Companyan Issuer, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor further, to the extent permitted by law, hereby waives 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 Companyan Issuer, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Companyan Issuer, the Guarantors Guarantors, or any custodianCustodian, trustee, liquidator Trustee or other similar official acting in relation to either any of the Company Issuers or the Guarantors, any amount paid by either an Issuer or any Guarantor to the Trustee or such Holder, this Subsidiary Guaranteethe Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary its Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.,
Appears in 1 contract
Samples: Summit Midstream Partners, LP
Guarantees. Subject to the provisions of this Article Section 10, each of the Guarantors hereby, jointly and severallyGuarantor hereby fully, unconditionally guarantees and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several senior secured basis, to each Holder of a Note authenticated the Notes, and delivered by the Trustee the due and punctual payment, of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the Trustee extent permitted by applicable law, on overdue interest and its successors and assigns, irrespective including any additional interest required to be paid according to the terms of the validity Notes), if any, on the Notes, when and enforceability as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Note Guarantee will be secured by first priority security interests (subject to Permitted Liens) in the Collateral owned by such Guarantor. Each Guarantor agrees that the Guarantor Obligations shall rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other 95 Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees shall rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees shall rank junior in right of payment to such claims. To evidence its Note Guarantee set forth in this Section 10.1, each Guarantor hereby agrees that this Indenture (or a supplement thereto) shall be executed on behalf of such Guarantor by an Officer of such Guarantor. Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.1 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes. If an Officer whose signature is on this Indenture (or a supplement thereto) no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantee shall be valid nevertheless. Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Section 10.1 notwithstanding any extension or renewal of any Guarantor Obligation. Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations. Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations. Except as set forth in Section 10.4, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the obligations release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Company hereunder Company; (g) any default, failure or thereunderdelay, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption willful or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If Guarantor Obligations; or (h) any Holder other act or the Trustee is required by any court thing or otherwise omission or delay to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.96
Appears in 1 contract
Samples: Allegiant Travel CO
Guarantees. Subject to this Article 10Each Guarantor unconditionally guarantees, each of the Guarantors herebyas a primary obligor and not merely as a surety, jointly and severallyseverally with each other Guarantor, unconditionally guarantees to each Holder of a Note authenticated the due and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective punctual payment of the validity principal of and enforceability interest on the Revolving Loans and of this Indentureall other Obligations, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal when and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when as due, whether at maturity, by acceleration, redemption by notice or prepayment or otherwise. Each Guarantor further agrees that the Obligations may be extended and renewed, in whole or in part, without notice to or further assent from it, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder that it will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of remain bound upon its guarantee notwithstanding any extension of time of payment or renewal of any Notes Obligations. To the fullest extent permitted by law, each Guarantor waives presentment to, demand of payment from and protest to the Borrowers or any other Person of any of the Obligations, and also waives notice of acceptance of its guarantee and notice of protest for nonpayment. To the fullest extent permitted by law, the obligations of a Guarantor hereunder shall not be affected by (a) the failure of the Agent or any Lender to assert any claim or demand or to enforce any right or remedy against any Borrower or any other Guarantor under the provisions of this Agreement or any of such the other obligationsLoan Documents or otherwise; (b) any rescission, waiver, amendment or modification of any of the terms or provisions of this Agreement, any of the other Loan Documents, any guarantee or any other agreement; (c) the release of any security held by the Agent or any Lender for the Obligations or any of them; or (d) the failure of the Agent or any Lender to exercise any right or remedy against any other Guarantor of the Obligations. Each Guarantor further agrees that same will be promptly paid in full its guarantee constitutes a guarantee of payment when due and not of collection, and waives any right to require that any resort be had by the Agent or performed in accordance with the terms any Lender to any security (if any) held for payment of the extension Obligations or renewalto any balance of any deposit account or credit on the books of the Agent or any Lender in favor of any Borrower or any other Person. To the fullest extent permitted by law, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, obligations of each Guarantor also agreeshereunder shall not be subject to any reduction, unconditionally and jointly and severally with each other Guarantorlimitation, to pay impairment or termination for any and all expenses (reason, including, without limitation, counsel fees any claim of waiver, release, surrender, alteration or compromise, and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by complete performance reason of the obligations contained in the Notes and this Indenture. If any Holder invalidity, illegality or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity unenforceability of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.Obligations or
Appears in 1 contract
Guarantees. Subject to the provisions of this Article 10Ten A, each of the Guarantors hereby, Guarantor hereby jointly and severally, severally unconditionally guarantees to each Holder of a Note Security authenticated and delivered made available for delivery by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes Securities or the obligations of the Company hereunder or thereunderany other Guarantors to the Holders or the Trustee hereunder, that: (a) the principal of and premium, if any, of, and interest, if any, on, interest on the Notes Securities will be promptly duly and punctually paid in full when due, whether at maturity, by acceleration, redemption acceleration or otherwise, and interest on the overdue principal and premium, if any of, and (to the extent permitted by law) interest, if any, on, on the Notes, if any, if lawful, Securities and all other obligations of Obligations on the Company to the Holders or the Trustee hereunder or thereunder Securities will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligationsObligations on the Securities, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at final stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed guaranteed, for whatever reason, the Guarantors shall each Guarantor will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Securities shall constitute an event of default under the Guarantees, and shall entitle the Holders of Securities to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company on the Securities. Each Guarantor of the Guarantors hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Securities with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the Company, any action to enforce the same same, whether or not a Guarantee is affixed to any particular Security, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor of the Guarantors hereby waives 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 99 -91- first against the Company, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall will not be discharged except by complete performance of the obligations contained in the Notes Securities, this Indenture and this Indenturethe Guarantee. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyCompany or to any Guarantor, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorssuch Guarantor, any amount paid by either the Company or such Guarantor to the Trustee or such Holder, this Subsidiary Guaranteethe Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders of Securities and the Trustee, on the other hand, (xa) subject to this Article Ten A, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Section 6.02 for the purposes of this Subsidiary Guaranteethe Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (yb) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofSection 6.02, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guaranteethe Guarantees. The Guarantees 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 Securities are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities, whether as a "voidable preference," "fraudulent transfer" or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. No stockholder, officer, director, employer or incorporator, past, present or future, of any Guarantor, as such, shall have any personal liability under the Guarantees by reason of his, her or its status as such stockholder, officer, director, employer or incorporator. 100 -92- The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeGuarantees. Each Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is the intention of all such parties that in no event shall any Guarantor's obligations under its Guarantee be subject to avoidance under any applicable fraudulent conveyance or similar law of any relevant jurisdiction. Therefore, in the event that the Guarantees would, but for this sentence, be subject to avoidance, then the liability of the Guarantors under the Guarantees shall be reduced to the extent necessary such that such Guarantees shall not be subject to avoidance under the applicable fraudulent conveyance or similar law. Subject to the preceding limitation on liability, the Guarantee of each Guarantor constitutes a guarantee of payment in full when due and not merely a guarantee of collectability.
Appears in 1 contract
Samples: Amcast Radio Sales Inc
Guarantees. Subject to this Article 10The Guarantors hereby unconditionally guarantee, each of the Guarantors herebyon a senior unsecured basis and as primary obligor and not merely as surety, jointly and severallyseverally with each other Guarantor, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee the full and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium and additional amounts, if any, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, Notes and all other obligations and liabilities of the Company Issuer under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Holders Issuer, the Company or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) (all the Trustee hereunder foregoing being hereinafter collectively called the “Obligations”). The Obligations of each of the Guarantors under the Notes Guarantees shall rank equally in right of payment with other Indebtedness of each such Guarantor, except to the extent such other Indebtedness is expressly subordinate to the obligations arising under the Notes Guarantee. Each Guarantor further agrees (to the extent permitted by law) that the Obligations may be extended or thereunder will be promptly paid renewed, in full whole or performedin part, all in accordance with the terms hereof without notice or further assent from it, and thereof; and (b) in case of that it shall remain bound under this Article X notwithstanding any extension of time of payment or renewal of any Obligation. Each Guarantor waives presentation to, demand of payment from and protest to the Issuer of any of the Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; or (f) any change in the ownership of the Issuer or the Company. Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Obligations. The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such other obligations, Guarantor as a matter of law or equity. Each Guarantor agrees that same will be promptly paid its Guarantee herein shall remain in full when due force and effect until payment in full of all the Obligations or performed such Guarantor is released from its Guarantee upon the merger, amalgamation or the sale of all the Capital Stock or all or substantially all of the assets of the Guarantor in compliance with Section 10.2 or otherwise in accordance with the terms of this Indenture. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the extension case may be, if at any time payment, or renewalany part thereof, whether at stated maturity, of principal of or interest on any of the Obligations is rescinded or must otherwise be restored by acceleration any Holder upon the bankruptcy or reorganization of the Issuer or otherwise. In addition furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the foregoingObligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor also agreeshereby promises to and shall, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred upon receipt of written demand by the Trustee under this Indenture Trustee, forthwith pay, or cause to be paid, in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guaranteecash, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation Holders an amount equal to the Holders in respect sum of any obligations guaranteed hereby until payment in full (i) the unpaid amount of all obligations guaranteed herebysuch Obligations then due and owing and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law). Each Guarantor further agrees that, as between the Guarantorssuch Guarantor, on the one hand, and the Holders and the TrusteeHolders, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof this Indenture for the purposes of this Subsidiary Guaranteeits Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, hereby and (y) in the event of any such declaration of acceleration of such obligations as provided in Article 6 hereofObligations, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose purposes of this Subsidiary Guarantee. The Guarantors shall have Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of Trustee or the Holders in enforcing any rights under the Guaranteethis Section.
Appears in 1 contract
Samples: Quiksilver Inc
Guarantees. Subject to this Article 10, each of the Guarantors herebyEach Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assignsassigns as primary obligor and not merely as a surety, irrespective on a senior secured basis, the performance and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all obligations of Terra Capital under this Indenture and the Notes whether for payment of principal of or inter- est on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by the Guarantors being herein called the "Guaranteed Obligations"). The Guarantors will agree to pay, in addition to the amount stated above, any and all expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under the Guarantees. Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Guarantor and that such Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Guarantor waives presentation to, demand of, payment from and protest to Terra Capital of any of the validity Guaranteed Obligations and enforceability also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Terra Capital or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (f) any change in the ownership of such Guarantor. Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Sections 8.2, 10.2 and 10.6, the obligations of the Company each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or thereundertermination for any reason, that: (a) the principal and premiumincluding any claim of waiver, if anyrelease, ofsurrender, alteration or compromise, and interestshall not be subject to any defense of setoff, if anycounterclaim, onrecoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes will or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantor further agrees that its Guarantee herein shall continue to be promptly paid effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of Terra Capital or otherwise. In furtherance of the foregoing and not in full limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of Terra Capital to pay any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any Guaranteed Obligation, each Guarantor hereby promises to and interest on will, upon receipt of written demand by the overdue principal and premiumTrustee, if any offorthwith pay, and interestor cause to be paid, if anyin cash, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with an amount equal to the terms hereof and thereof; and sum of (bi) in case of any extension of time of payment or renewal of any Notes or any the unpaid amount of such other obligationsGuaranteed Obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally (ii) accrued and jointly and severally with each other Guarantor, to pay any and all expenses unpaid interest on such Guaranteed Obligations (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, but only to the extent theretofore discharged, shall be reinstated in full force not prohibited by law) and effect(iii) all other monetary Guaranteed Obligations of Terra Capital to the Holders and the Trustee. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Guaranteed Obligations guaranteed hereby until payment in full of all obligations guaranteed herebyGuaranteed Obligations. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed Guaranteed Obligations hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteesuch Guarantor's Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed herebyGuaranteed Obligations, and (y) in the event of any declaration of acceleration of such obligations Guaranteed Obligations as provided in Article 6 hereof6, such obligations the Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose purposes of this Subsidiary GuaranteeSection. The Guarantors shall have Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys' fees) incurred by the right to seek contribution from Trustee or any non-paying Guarantor so long as the exercise of such right does not impair the Holder in enforcing any rights of the Holders under the Guaranteethis Section.
Appears in 1 contract
Samples: Terra Capital Inc
Guarantees. Subject Each of the Guarantors hereby, irrevocably, unconditionally and absolutely, guarantees the due and punctual payment and performance when due of all of the obligations of Parent and Purchaser under this Agreement (collectively referred to as the "Guaranteed Obligations"). This Guaranty is a guaranty of payment, and not of collection, and a direct obligation of each Guarantor. Accordingly, Platform shall not be obligated or required before enforcing this Article 10Guaranty against any Guarantor: (a) to pursue any right or remedy Platform may have against Parent, Purchaser or any other Guarantor or commence any suit or other proceeding against Parent, Purchaser or any other Guarantor in any court or other tribunal; (b) to make any claim in a liquidation or bankruptcy of Parent, Purchaser or any other Guarantor; or (c) to make demand of Parent, Purchaser or any other Guarantor. In this connection, each of the Guarantors herebyhereby waives the right of such Guarantor to require any holder of the Guaranteed Obligations to take action against Parent or Purchaser as provided by applicable Law; provided, jointly and severallyhowever, unconditionally guarantees to that each Holder of a Note authenticated and delivered by the Trustee and Guarantors may raise any defense or argument (other than defenses or arguments relating to the Trustee due authorization, execution, delivery and its successors enforceability or validity of this Agreement as it relates to Parent or 54 60 Purchaser) available to Parent or Purchaser under this Agreement and assignsshall have no obligation to pay or perform if Parent or Purchaser would not be obligated to pay or perform under the terms of this Agreement, irrespective and in this connection, it shall not be a defense to payment or performance by a Guarantor that this Agreement or the Guaranteed Obligations have not been duly authorized or incurred by Parent or Purchaser or that this Agreement or the Guaranteed Obligations are unenforceable or invalid obligations of Parent or Purchaser. The obligations of each of the validity and enforceability Guarantors hereunder shall not be released, discharged, suspended or terminated by any invalidity or unenforceability of this Indenture, the Notes or any of the obligations of the Company Parent or Purchaser hereunder. All sums payable by Vedior hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will shall be promptly paid in full when duewithout deduction for any withholding Tax or liability imposed by any applicable Law, whether at maturity, by acceleration, redemption governmental agency or otherwiseauthority located outside of the United States, and interest on in the overdue principal and premiumevent that Vedior is required by such applicable Law or by such governmental agency or authority to make any such deduction or withholding Tax, if any Vedior shall pay to Platform such additional amount as will result in the receipt by Platform of the full amount payable hereunder had such deduction or withholding not occurred or been required. It is the intent of each Guarantor that such Guarantor's maximum liability hereunder shall be, but not in excess of, and interestthe maximum amount which would not otherwise cause the Guaranteed Obligations to be avoidable or unenforceable against the Guarantor under (i) Section 548 of the Bankruptcy Code of 1978, as amended, or (ii) any state fraudulent transfer or fraudulent conveyance act or statute applied in such case or proceeding by virtue of Section 544 of the Bankruptcy Code (such laws, acts or statutes referred to herein as "Avoidance Provisions"). To the end set forth in this paragraph, but only to the extent that the Guaranteed Obligations would otherwise be subject to avoidance under the Avoidance Provisions if anya Guarantor is not deemed to have received valuable consideration, onfair value or reasonably equivalent value for the Guaranteed Obligations, or if the Guaranteed Obligations would render a Guarantor insolvent, or leave a Guarantor with an unreasonably small capital to conduct its business, or cause the Guarantor to have incurred debts (or to have intended to have incurred debts) beyond its ability to pay such debts as they mature, in each case as of the time any of the Guaranteed Obligations are deemed to have been incurred under the Avoidance Provisions, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each maximum Guaranteed Obligations for which a Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations liable hereunder shall be unconditionalreduced to that amount which, irrespective after giving effect thereto, would not cause the Guaranteed Obligations, as so reduced, to be subject to avoidance under the Avoidance Provisions. Notwithstanding anything to the contrary in this Agreement, (i) the sum of the validityaggregate amount payable by Vedior hereunder and the aggregate amount payable by SANA hereunder shall not exceed $80 million (provided, regularity or enforceability of the Notes or this Indenturehowever, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee limitation shall not be discharged except by complete performance in no way limit the liability of the obligations contained in the Notes and Parent or Purchaser under this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed herebyAgreement), and (yii) in the event obligations of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due Vedior and payable) SANA hereunder shall forthwith become due and payable by terminate immediately prior to the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights satisfaction of the Holders under the Guaranteeprovisions of Sections 7.14 and 7.15.
Appears in 1 contract
Guarantees. Subject to this Article 10, each of the Guarantors herebyEach Guarantor unconditionally guarantees, jointly with each other Guarantor and severally, unconditionally guarantees to each Holder of as a Note authenticated primary obligor and delivered by the Trustee and to the Trustee and its successors and assignsnot merely as a surety, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the due and punctual payment by each Borrower (other than itself) of (i) the principal of and premium, if any, ofand interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Revolving Credit Advances made to such Borrower, when and interest, if any, on, the Notes will be promptly paid in full when as due, whether at maturity, by acceleration, redemption upon one or more dates set for prepayment or otherwise, and interest on (ii) each payment required to be made by such Borrower under the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations guaranteed hereby until to provide cash collateral and (iii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of such Borrower to the Administrative Agent and each Lender under the Credit Agreement and the other Loan Documents (collectively, the “Guaranteed Parties”), whether such amounts shall have accrued prior to, on or after the Closing Date, (b) the due and punctual payment in full and performance of all covenants, agreements, obligations and liabilities of each Borrower (other than itself), monetary or otherwise, under or pursuant to the Credit Agreement and the other Loan Documents and (c) the due and punctual payment and performance of all obligations guaranteed herebyof each Borrower (other than itself), monetary or otherwise, under each Interest Rate Agreement in effect on the date hereof to which any Lender (or an Affiliate of a Lender) is a party and each Interest Rate Agreement entered into after the date hereof with any counterparty that is a Lender (or an Affiliate of a Lender) at the time such Interest Rate Agreement is entered into (all the monetary and other obligations referred to in the preceding clauses (a) through (c) being collectively called the “Obligations”). Anything contained in this Agreement to the contrary notwithstanding, the obligations of TRS hereunder, and the obligations of any Additional Borrower in respect of the obligations of Rayonier, shall be limited to a maximum aggregate amount equal to the greatest amount that would not render such obligations subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any provisions of applicable law (collectively, the “Fraudulent Transfer Laws”), in each case after giving effect to all other liabilities of TRS or such Additional Borrower, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights of TRS or such Additional Borrower, as the case may be, pursuant to (i) applicable law or (ii) any agreement providing for an equitable allocation among TRS or such Additional Borrower, as the case may be, and other Affiliates of Rayonier of obligations arising under Guarantees by such parties. Each Guarantor further agrees thatthat the Obligations may be extended or renewed, as between the Guarantorsin whole or in part, on the one handwithout notice to or further assent from it, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, that it will remain bound upon its guarantee notwithstanding any stay, injunction extension or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event renewal of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeObligation.
Appears in 1 contract
Guarantees. Subject to this Article 10X, each of the Guarantors hereby, jointly and severally, irrevocably and unconditionally guarantees guarantees, on an unsecured basis, to each Holder of a Note 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 Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal of and interest and premium, if any, of, and interest, if any, on, on the Notes will shall be promptly paid in full when due, whether at maturity, by acceleration, redemption redemption, repurchase or otherwise, and interest on the overdue principal of and premium, if any of, and interest, if any, on, interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will thereunder, including for expenses, indemnification or otherwise, shall be promptly paid in full or performedfull, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediatelypromptly. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which that might otherwise constitute a legal or equitable discharge or defense of a guarantorguarantor (other than payment in full of all of the obligations of the Company hereunder and under the Notes). Each Guarantor hereby waives waives, to the fullest extent permitted by law, 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 covenant covenants that this Subsidiary Guarantee shall not be discharged except by complete performance full payment of the obligations contained in the Notes and this Indenture or by release in accordance with the provisions of this Indenture. Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, Guarantors any amount paid by either to such Holder or the Trustee or such HolderTrustee, then this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Until terminated in accordance with Section 10.06 hereof, each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 VI hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 VI hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying nonpaying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeGuarantees. Each 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 of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or the Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment 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. In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Guarantee issued by any Guarantor shall be a general unsecured senior obligation of such Guarantor and shall be pari passu in right of payment with all existing and future senior Indebtedness of such Guarantor, if any. Each payment to be made by a Guarantor in respect of its Guarantee shall be made without setoff, counterclaim, reduction or diminution of any kind or nature.
Appears in 1 contract
Guarantees. Subject to this Article 10Section 11.5, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity Securities and enforceability of this Indenture, the Notes or the obligations Obligations of the Company hereunder or and thereunder, that: (a) the principal and premium, if any, of, and interest, if any, accrued and unpaid cash interest (including any Additional Interest) on, the Notes will Securities shall be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration, redemption acceleration or otherwise, and interest on the overdue principal principal, interest on any accrued and premium, if any of, and unpaid cash interest, if any, on, the Notesand interest on any Additional Interest, if any, if lawfulon the Securities, and all other obligations payment Obligations of the Company to the Holders or all other Obligations of the Company to the Trustee hereunder or thereunder will shall be promptly paid in full or and performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligationsObligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, reason the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Securities shall constitute an event of payment default under the Guarantees, and not a guarantee shall entitle the Holders to accelerate the obligations of collectionthe Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity validity or enforceability of the Notes Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same same, the release of any Guarantee of any other Guarantor or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor hereby waives 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 covenant covenants that this Subsidiary its Guarantee shall not be discharged except by complete performance of the obligations Obligations contained in the Notes Securities and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof VI for the purposes of this Subsidiary its Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed herebythereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereofVI, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose of this Subsidiary its Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor as provided in Section 11.5 so long as the exercise of such right does not impair the rights of the Holders or the Trustee under the GuaranteeGuarantees or this Indenture.
Appears in 1 contract
Samples: Indenture (Best Buy Co Inc)
Guarantees. Subject This Section 13.01 and Section 13.02 ----------- apply to this Article 10, each the Securities of any series of any Subsidiary Issuer to the extent that the form of the Guarantors hereby, jointly Guarantees to be endorsed on such Securities is not otherwise established as contemplated by Section 3.01. The Guarantor hereby fully and severally, unconditionally guarantees to each Holder of a Note Security of each series issued by a Subsidiary Issuer, 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 such Security (and any Additional Amounts (as defined in Section 10.07) payable in respect thereof), and the due and punctual payment of any sinking fund payments provided for pursuant to the Trustee terms of such Security, when and its successors as the same shall become due and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when duepayable, whether at maturitythe Stated Maturity, by declaration of acceleration, call for redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwisesuch Security and of this Indenture. In addition to the foregoing, each The Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor hereby agrees that this is a guarantee in the event of payment and not a guarantee an Event of collection. The Guarantors hereby agree that their Default 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 the validity, regularity or enforceability any Security of the Notes any series or this Indenture, the absence of any action failure to enforce the sameprovisions of any Security of any series or this Indenture, any waiver waiver, modification or consent indulgence granted to the applicable Subsidiary Issuer with respect thereto, by any the Holder of the Notes with respect to any provisions hereof or thereof, the recovery Security of any judgment against series of such Subsidiary Issuer or the CompanyTrustee, any action to enforce the same or any other circumstance circumstances which might may otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; provided, however, that, notwithstanding the -------- ------- foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantor, increase the principal amount of any Security of a Subsidiary Issuer or the interest rate thereon or increase any premium payable upon redemption thereof. Each The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency merger or bankruptcy of the Companyapplicable Subsidiary Issuer, any right to require a proceeding first against such Subsidiary Issuer, the Companybenefit of discussion, protest, protest or notice with respect to any Security of such Subsidiary Issuer or the indebtedness evidenced thereby or with respect to any sinking fund payment required pursuant to the terms of such Security issued under this Indenture and all demands whatsoever whatsoever, and covenant covenants that this Subsidiary Guarantee shall will not be discharged with respect to such Security except by complete performance payment in full of the obligations contained principal thereof and any premium and interest thereon or as provided in the Notes and this IndentureArticle IV, Section 8.01 or Section 10.12. If any Holder or the Trustee is required by any court or otherwise to return to the Companyany Subsidiary Issuer, the Guarantors Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to either the Company such Issuer or the Guarantors, Guarantor any amount paid by either such Issuer or the Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, Guarantee to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each The Guarantor further agrees that, as between the GuarantorsGuarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity Maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 V hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby. The Guarantor also agrees, to pay any and all reasonable costs and expenses (yincluding reasonable attorneys' fees and expenses) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable incurred by the Guarantors for the purpose of Trustee or any Holders in enforcing any rights under this Subsidiary Guarantee. The Guarantors Guarantor hereby waives any right of set-off which the Guarantor may have against the Holder of any Security of a Subsidiary Issuer in respect of any amounts which are or may become payable by such Holder to such Subsidiary Issuer. The Guarantor shall have the right be subrogated to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the all rights of the Holders of any series of Securities and the Trustee against the applicable Subsidiary Issuer in respect of any amounts paid to such Holders and the Trustee by the Guarantor pursuant to the provisions of the Guarantees; 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, premium, if any, and interest and any Additional Amounts on all of the Securities of such series shall have been paid in full. No past, present or future stockholder, officer, director, employee or incorporator of the Guarantor shall have any personal liability under the GuaranteeGuarantees set forth in this Section 13.01 by reason of his or its status as such stockholder, officer, director, employee or incorporator. The Guarantees set forth in this Section 13.01 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
Guarantees. Subject to this Article 10, each of the Guarantors herebyEach Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee on behalf of the Holders and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: assigns (a) the due and punctual payment of principal and of, premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and interest on all other monetary obligations of the overdue principal and premium, if any of, and interest, if any, onIssuers under this Indenture, the Notes, if any, if lawful, Notes and the Registration Rights Agreement and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company to Issuers under this Indenture, the Holders Notes and the Registration Rights Agreement (all the foregoing being hereinafter collectively called the "Guaranteed Obligations"). Each Guarantor further agrees that the Guaranteed Obligations may be extended or the Trustee hereunder renewed, in whole or thereunder in part, without notice or further assent from such Guarantor and that such Guarantor will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of remain bound under this Article 10 notwithstanding any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediatelyGuaranteed Obligation. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency in- solvency or bankruptcy of the Companyany Issuer, any right to require a proceeding first against the CompanyIssuer, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee whatsoever. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be discharged except affected by complete performance (a) the failure of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by to assert any court claim or otherwise demand or to return to the Company, the Guarantors enforce any right or any custodian, trustee, liquidator or other similar official acting in relation to either remedy against the Company or any other Person under this Indenture, the GuarantorsNotes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (f) except as provided in Section 10.06, any amount paid change in the ownership of such Guarantor. Except as expressly set forth in Sections 10.02 and 10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by either to reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such HolderGuarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of any Issuer or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of any Issuer to pay the principal of, premium, if any, or interest on any obligation under the Notes or this Subsidiary GuaranteeIndenture when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other obligation under the Notes or this Indenture, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent theretofore discharged, shall be reinstated in full force not prohibited by law) and effect(iii) all other monetary Guaranteed Obligations of the Issuers to the Holders and the Trustee. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Guaranteed Obligations guaranteed hereby until payment in full of all obligations guaranteed herebyGuaranteed Obligations. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed Guaranteed Obligations hereby may be accelerated as provided in Article Section 6 hereof for the purposes of this Subsidiary Guaranteesuch Guarantor's Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations under the Notes or this Indenture guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofSection 6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose purposes of this Subsidiary GuaranteeSection. The Guarantors shall have Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys' fees) incurred by the right to seek contribution from Trustee or any non-paying Guarantor so long as the exercise of such right does not impair the Holder in enforcing any rights of the Holders under the Guaranteethis Article 10.
Appears in 1 contract
Guarantees. Subject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note 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 Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal Investor Parent unconditionally and premium, if any, of, irrevocably guarantees to NII Telecom and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company (the “Parent Guaranteed Parties”) the due and punctual performance by Investor of: (i) all of Investor’s obligations pursuant to the Holders terms of this Agreement and the Ancillary Agreements (as varied or the Trustee hereunder or thereunder will be promptly paid in full or performed, all amended in accordance with their terms); (ii) any payment obligation owed by Investor to the terms hereof and thereof; and Parent Guaranteed Parties (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid them) in full when due or performed respect of any obligation by Investor to fund the Company in accordance with the terms of the extension or renewal, whether at stated maturity, this Agreement; (iii) any other payment obligation owed by acceleration or otherwise. In addition Investor to the foregoingParent Guaranteed Parties (or any of them) in accordance with the terms of this Agreement or any of the Ancillary Agreements; or 73 (iv) any indemnity granted by Investor to the Parent Guaranteed Parties (or any of them) in accordance with the terms of this Agreement or any of the Ancillary Agreements, each Guarantor also agrees, unconditionally and Investor Parent undertakes to keep the Parent Guaranteed Parties fully indemnified on demand against any and all Losses of whatever nature which the Parent Guaranteed Parties may suffer or incur as a result of any failure or delay by Investor in the performance of any of its obligations hereunder. (b) Investor and Investor Parent jointly and severally with each other Guarantor, warrant and represent to pay any the Parent Guaranteed Parties that Investor Parent has the corporate power to execute and all expenses (including, without limitation, counsel fees deliver this Agreement and expenses) incurred by the Trustee perform its obligations under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due Section 9.1, that the execution and delivery of any amount so guaranteed or any performance so guaranteed for whatever reason, this Agreement and the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives 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 covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in of Investor Parent under this Section 9.1 have been duly authorized by all necessary corporate action on the Notes part of Investor Parent and this Indenturethat the obligations of Investor Parent under Section 9.1(a), constitute legal, valid and binding obligations of Investor Parent. If any Holder or (c) Parent unconditionally and irrevocably guarantees to Investor (the Trustee is required “Investor Guaranteed Parties”) the due and punctual performance by any court or otherwise to return NII Telecom and the Company of: (i) all of NII Telecom’s and the Company’s obligations pursuant to the Company, terms of this Agreement and the Guarantors Ancillary Agreements (as varied or amended in accordance with their terms); (ii) any payment obligation owed by NII Telecom to the Investor Guaranteed Parties (or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders them) in respect of any obligations guaranteed hereby until obligation by NII Telecom to fund the Company in accordance with the terms of this Agreement; (iii) any other payment obligation owed by NII Telecom or the Company to the Investor Guaranteed Parties (or any of them) in full accordance with the terms of all obligations guaranteed hereby. Each Guarantor further agrees that, as between this Agreement or any of the Guarantors, on Ancillary Agreements; or (iv) any indemnity granted by NII Telecom or the one handCompany to the Investor Guaranteed Parties (or any of them) in accordance with the terms of this Agreement or any of the Ancillary Agreements (subject to Section 8.6), and Parent undertakes to keep the Holders Investor Guaranteed Parties fully indemnified on demand against any and all Losses of whatever nature which the Trustee, on Investor Guaranteed Parties may suffer or incur as a result of any failure or delay by NII Telecom or the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) Company in the event performance of any declaration of acceleration of such its obligations as provided in Article 6 hereof, such obligations hereunder (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guaranteesubject to Section 8.6). The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.9.2
Appears in 1 contract
Samples: Investment Agreement
Guarantees. Subject to this Article 10The Parent Guarantor hereby unconditionally guarantees (the "Guarantee", each and together with the other guarantees of the Guarantors herebySecurities, if any, the "Guarantees"), jointly and severallyseverally with each other Guarantor of the Securities of that series, unconditionally guarantees if any, to each Holder of a Note such Securities 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 Notes such Securities or the obligations of the Company hereunder or thereunder, that: (ai) the due and punctual payment of the principal of and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when dueany premium or interest on such Securities, whether at maturityMaturity or on an Interest Payment Date, by acceleration, redemption pursuant to an offer to purchase such Securities or otherwise, and interest on the overdue principal and premium, if any of, of and interest, if any, on, the Notes, if anyon such Securities, if lawful, and all other obligations of the Company to the Holders of such Securities or the Trustee hereunder or thereunder will shall be promptly paid in full or performedfull, all in accordance with the terms hereof and thereof; thereof including all amounts payable to the Trustee under Section 6.07 hereof, and (bii) in case of any extension of time of payment or renewal of any Notes such Securities or any of such other obligations, that the same will shall be promptly paid in full when due or to be performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition If the Company fails to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay make any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors Parent Guarantor of the Securities of that series shall be obligated, jointly and severally obligated with each other such Guarantor, if any, to pay the same immediately. Each The Parent Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be continuing, absolute and unconditional, irrespective of of, and shall be unaffected by, the validity, regularity or enforceability of the Notes or Securities, this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Securities or the Trustee with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorsuch Guarantor. Each The Parent Guarantor hereby waives diligence, presentment, demand of payment, demand of performance, 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, the benefit of discussion, protest, notice and all demands demand whatsoever and covenant covenants that this Subsidiary its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes Securities guaranteed by such Guarantee, in this Indenture and in this IndentureArticle Fifteen. If any Holder of Securities of a series guaranteed hereby or the Trustee is required by any court or otherwise to return to the CompanyCompany or the Parent Guarantor of such Securities, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the GuarantorsParent Guarantor, any amount paid by either the Company or the Parent Guarantor of such Securities to the Trustee or such Holder, this Subsidiary GuaranteeArticle Fifteen, to the extent theretofore dischargeddischarged with respect to the Guarantee of such Securities, shall be reinstated in full force and effect. Each The Parent Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Securities of a series guaranteed hereby by the Parent Guarantor in respect of any obligations guaranteed hereby by such Guarantee until payment in full of all obligations guaranteed herebysuch obligations. Each The Parent Guarantor further agrees that, as between the GuarantorsParent Guarantor, on the one hand, and the Holders of Securities of a series guaranteed hereby by the Parent Guarantor and the Trustee, Trustee on the other hand, (xi) the maturity of the obligations guaranteed hereby by such Guarantee may be accelerated as provided in Article 6 Five hereof for the purposes of this Subsidiary the Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, hereby and (yii) in the event of any declaration of acceleration of such obligations as provided in Article 6 Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Parent Guarantor, jointly and severally with any other Guarantor of such Securities, if any, for the purpose of this Subsidiary Article Fifteen. In addition, without limiting the foregoing, upon the effectiveness of an acceleration under Article Five, the Trustee may make a demand for payment on the Securities under the Guarantee thereof not discharged. With respect to the Guarantee. The Guarantors , the Parent Guarantor shall have the right be subrogated to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the all rights of the Holders under Holder of any Securities guaranteed hereby by such Guarantee against the Company in respect of any amounts paid to such Holder by the Parent Guarantor pursuant to the provisions of such Guarantee; provided that the Parent Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and interest on all such Securities shall have been paid in full. The Guarantee provided in this Section 15.01 shall not be valid or become obligatory for any purpose with respect to a Security until the certificate of authentication on such Security shall have been signed by the Trustee or any duly appointed agent.
Appears in 1 contract
Samples: L 3 Communications Corp
