Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as will, after giving effect to 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution. (b) Notwithstanding anything herein to the contrary, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of: (i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and (ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 7 contracts
Samples: Indenture (Sensata Technologies Holding PLC), Indenture (Sensata Technologies Holding PLC), Indenture (Sensata Technologies Holding PLC)
Limitation on Guarantor Liability. (a) Each of the Guarantors and the Parent Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that its Guarantee or the Note Guarantee of such Guarantor Parent Guarantee, as applicable, not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note any Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Parent Guarantee. To effectuate the foregoing intention, the Trustee, the Holders Holders, the Parent Guarantor and the Guarantors hereby irrevocably agree that the obligations of such the Parent Guarantor will and 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 the Parent Guarantor or such Guarantor Guarantor, as applicable, that are relevant under such laws, 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 or the Parent Guarantor in respect of the obligations of such other Guarantor or the Parent Guarantor under this Article 10, result in the obligations of such Guarantor under its Note Guarantee or the Parent Guarantor under the Parent Guarantee, not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Guarantee and the contraryParent Guarantor, the Note Guarantee granted by any Guarantor which is incorporated in or existing if it makes a payment under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg GuarantorParent Guarantee, shall be limited at any time entitled upon payment in full of all guaranteed obligations under this Indenture to a contribution from each other Guarantor in an aggregate amount not exceeding the higher of:
(i) 90% equal to such other Guarantor’s pro rata portion of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 payment based on the register respective net assets of commerce and companies all the Guarantors and the accounting and annual accounts of undertakingsParent Guarantor, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on at the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% time of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment determined in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with GAAP.
Appears in 6 contracts
Samples: Indenture (Aramark), Indenture (Aramark), Indenture (Aramark)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent conveyance or a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor under its Guarantee will be limited to the maximum amount as will, after giving effect to 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 its Guarantee or pursuant to its contribution obligations under this Article 10Indenture, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to fraudulent transfer under federal or state law and not otherwise being void or voidable under any similar laws affecting the contrary, the Note rights of creditors generally. Each Guarantor that makes a payment under its Guarantee granted by any Guarantor which is incorporated shall be entitled upon payment in or existing under the laws full of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) all guaranteed obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture to a contribution from each other Guarantor which is not a direct or indirect subsidiary in an amount equal to such other Guarantor’s pro rata portion of such Luxembourg Guarantor, shall be limited payment based on the respective net assets of all the Guarantors at any the time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment determined in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with GAAP.
Appears in 6 contracts
Samples: Indenture (On Semiconductor Corp), Indenture (On Semiconductor Corp), Indenture (On Semiconductor Corp)
Limitation on Guarantor Liability. (aA) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as that 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance under federal, state or such an unlawful distributionsimilar foreign law.
(bB) Notwithstanding anything herein to the contrarycontrary contained in this Indenture, the Note Guarantee granted by aggregate obligations and exposure of each of Endo Luxembourg Finance Company II S.à x.x. and any other Guarantor established in Luxembourg of which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the either Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such (a “Luxembourg Guarantor”) in respect of the obligations of the Issuers under the Notes, shall be limited at any time to an aggregate amount not exceeding 95% of the higher greater of:
(ia) 90% an amount equal to the sum of such the relevant Luxembourg Guarantor’s capitaux propres and subordinated debt Net Assets (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss accountdefined below), enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in the most recent financial information of the relevant Luxembourg Guarantor available to the Trustee at the Issue Date, including, without limitation, its last annual accounts most recently and duly approved financial statements (approved comptes annuels) and any (unaudited) interim financial statements signed by a shareholders’ meetingits board of managers (gérants) or by its board of directors (conseil d’administration), as applicable (or, if no financial information is available on with respect to the date on which a demand is made under relevant Luxembourg Guarantor at the Issue Date, the first financial information available with respect to such Luxembourg Guarantor’s Note GuaranteeGuarantor after the Issue Date); and
(iib) 90% an amount equal to the sum of such the relevant Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) Net Assets, as reflected in the most recent financial information of the relevant Luxembourg Guarantor available to the Trustee at the date the Note Guarantee is enforced against the relevant Luxembourg Guarantor, including, without limitation, its last annual accounts most recently and duly approved financial statements (approved comptes annuels) and any (unaudited) interim financial statements signed by a shareholders’ meetingits board of managers (gérants) or by its board of directors (conseil d’administration), as applicable. Should the financial information of the relevant Luxembourg Guarantor not be available on the date of this Indenture. The above limitation shall not apply Issue Date, the relevant Luxembourg Guarantor’s Net Assets will be determined in accordance with the Luxembourg accounting principles referred to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesbelow.
Appears in 6 contracts
Samples: Indenture (Endo International PLC), Indenture (Endo International PLC), Indenture (Endo International PLC)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each HolderHolder of the Notes, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders of the Notes and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as willwhich, after giving effect to all other contingent and fixed liabilities of such Guarantor that are relevant under such lawsGuarantor, 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 its Guarantee or pursuant to its contribution obligations under this Article 10Ten, will result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or fraudulent transfer under federal or state law. Until such an unlawful distribution.
time as the Notes are paid in full, each Guarantor hereby waives all rights of subrogation or contribution, whether arising by contract or operation of law (bincluding, without limitation, any such right arising under Federal Bankruptcy Law) Notwithstanding anything herein or otherwise by reason of any payment by it pursuant to the contraryprovisions of this Article Ten. Each Guarantor that makes a payment or distribution under its Guarantee will be entitled to seek contribution from each other Guarantor in a pro rata amount based on the net assets of each Guarantor determined in accordance with GAAP, so long as the Note Guarantee granted by any Guarantor which is incorporated in or existing exercise of such right does not impair the rights of the Holders under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 5 contracts
Samples: Indenture (Range Resources Corp), Indenture (Range Resources Corp), Indenture (Range Resources Corp)
Limitation on Guarantor Liability. (a) Each GuarantorGuarantor and, and by its acceptance of NotesSecurities, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent conveyance or a fraudulent transfer or conveyance for purposes of Bankruptcy Lawbankruptcy law in the United States, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors of a series of Securities hereby irrevocably agree that the obligations of each Guarantor of such Guarantor will series of Securities 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, 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 of such series of Securities in respect of the obligations of such other Guarantor of such series of Securities under this Article 10Fifteen, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or fraudulent transfer under applicable law. Each Guarantor of such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the Note series of Securities that makes a payment under its Guarantee granted by any Guarantor which is incorporated shall be entitled upon payment in or existing under the laws full of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) all Guaranteed obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture to a contribution from each other Guarantor which is not a direct or indirect subsidiary of such Luxembourg series of Securities in an amount equal to such other Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% ’s pro rata portion of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 payment based on the register respective net assets of commerce and companies and all the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% Guarantors of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to series of Securities at the time of such payment determined in Annex I) as reflected accordance with generally accepted accounting principles in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesUnited States.
Appears in 5 contracts
Samples: Indenture (Genpact LTD), Indenture (Genpact Luxembourg S.a.r.l.), Indenture (Genpact LTD)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor will 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, 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 Article 1013, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to a voidable preference, financial assistance or improper corporate benefit, or violating the contrary, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws corporate purpose of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg relevant Guarantor or any applicable capital maintenance or similar laws or regulations affecting the rights of creditors generally under any applicable law or regulation. Each Guarantor that makes a payment under its direct Note Guarantee shall be entitled upon payment in full of all guaranteed obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP. Notwithstanding the foregoing, any Guarantee of any Guarantor organized outside the United States of America may be limited as necessary to (1) comply with applicable law, (2) avoid any general legal limitations such as general statutory limitations, financial assistance, maintenance of share capital, corporate benefit, “thin capitalization” rules, retention of title claims or indirect subsidiariessimilar matters or (3) avoid a conflict with the fiduciary duties of such company’s directors, contravention of any legal prohibition or regulatory condition, or the material risk of personal or criminal liability for any officers or directors (collectively referred to as “Agreed Guarantee Principles,” in each case as reasonably determined by the Company).
Appears in 5 contracts
Samples: Fourth Supplemental Indenture (Nikola Corp), First Supplemental Indenture (Nikola Corp), Indenture (Nikola Corp)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holderholder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteeguarantee. To effectuate the foregoing intention, the Trustee, the Holders holders and the Guarantors hereby irrevocably agree that each Guarantor’s liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the guarantee, but shall be limited to the maximum lesser of (a) the aggregate amount of the Company’s obligations under the Notes and this Indenture or (b) the amount, if any, which would not have (1) rendered the Guarantor “insolvent” (as willsuch term is defined in Bankruptcy Law and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its guarantee with respect to the Notes was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of existing Debt immediately before such time; provided, however, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the guarantee with respect to the Notes is the amount described in clause (a) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (b).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 9.02(a), the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 5 contracts
Samples: Indenture (Fushi International Inc), Indenture (China Security & Surveillance Technology, Inc.), Indenture (China Security & Surveillance Technology, Inc.)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of NotesFor purposes hereof, each Holder, hereby confirms Guarantor’s liability shall be that it is amount from time to time equal to the intention of all such parties that the Note Guarantee aggregate liability of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Lawunder its Notes Guarantee, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will but shall be limited to the maximum lesser of (a) the aggregate amount of the obligations of the Company under the Indenture Documents and (b) the amount, if any, which would not have (A) rendered such Guarantor “insolvent” (as willsuch term is defined in the federal Bankruptcy Law and in the Debtor and Creditor Law of the State of New York), (B) left it with unreasonably small capital at the time its Notes Guarantee was entered into, or at the time such Guarantor Incurred liability thereunder, after giving effect to all the Incurrence of Existing Indebtedness immediately prior to such time or (C) left such Guarantor with debts beyond such Guarantor’s ability to pay as such debts mature; provided that, it shall be a presumption in any lawsuit or other contingent and fixed liabilities proceeding in which such Guarantor is a party that the amount Guaranteed pursuant to its Notes Guarantee is the amount set forth in subsection (a) above unless any creditor, or representative of creditors of such Guarantor, or debtor in possession or trustee in bankruptcy of such Guarantor, otherwise proves in such a lawsuit or other proceeding that the aggregate liability of such Guarantor that are relevant under such laws, and after giving effect is limited to the amount set forth in subsection (b). In making any collections from, rights determination as to receive contribution from the solvency or payments made by or on behalf sufficiency of any other capital of a Guarantor in respect of accordance with the obligations of such other Guarantor under this Article 10previous sentence, result in the obligations right of such Guarantor under its Note Guarantee not constituting a fraudulent transfer to contribution from other Guarantors and any other rights such Guarantor may have, contractual or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 5 contracts
Samples: Indenture (CURO Group Holdings Corp.), Indenture (CURO Group Holdings Corp.), Indenture (CURO Group Holdings Corp.)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Notes Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federalU.S. federal or state law, state Canadian federal or foreign provincial law, law of England or law of Luxembourg to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Notes Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor will 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, 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 Article 10, result in the obligations of such Guarantor under its Note Notes Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) fraudulent transfer under applicable law. Notwithstanding anything herein to the contraryany other provision of this Indenture, the Note Guarantee granted by maximum liability of any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the pursuant to its Notes Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding equal to the higher sum of:
(ia) 90an amount equal to the aggregate (without double-counting) of (A) all moneys received by the Luxembourg Guarantor or its direct or indirect present or future Subsidiaries under this Indenture and (B) the aggregate amount directly or indirectly made available to the Luxembourg Guarantor or its direct or indirect present or future Subsidiaries by other members of the group that has been financed by a borrowing under this Indenture;
(b) an amount equal to 95% of such the greater of (a) the Luxembourg Guarantor’s own funds (capitaux propres and subordinated debt (all propres), as referred to in annex I to the Grand Ducal Regulation grand ducal regulation dated 18 December 18, 2015 setting out defining the form and content of the presentation of the balance sheet and profit and loss accountaccount implementing Articles 34, enforcing 35, 46 and 47 of the Luxembourg law of 19 dated December 19, 2002 on concerning the register of commerce trade and companies register and the accounting and annual accounts of undertakings, undertakings as amended (the “Annex IRegulation”) ) as increased by the amount of any Intra-Group Liabilities, each as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
latest duly approved annual accounts and other relevant documents available to the Trustee or (iib) 90% of such the Luxembourg Guarantor’s own funds (capitaux propres and subordinated debt (all propres), as referred to in Annex I) the Regulation as increased by the amount of any Intra-Group Liabilities, each as reflected in its last the Luxembourg Guarantor’s latest duly approved annual accounts (approved by a shareholders’ meeting) and other relevant documents available on to the date of this Indenture. The above limitation shall not apply to any proceeds of Trustee at the offering of time the applicable Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesGuarantee is called.
Appears in 4 contracts
Samples: Indenture (Lions Gate Entertainment Corp /Cn/), Indenture (Lions Gate Entertainment Corp /Cn/), Indenture (Lions Gate Entertainment Corp /Cn/)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of applicable Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign other applicable law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Collateral Agent, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as that 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 Article 1013, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance conveyance. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that its Guarantee, and the waivers set forth herein, are knowingly made in contemplation of such benefits. Notwithstanding the foregoing, any Guarantee of any Guarantor organized outside the United States of America may be limited as necessary to (1) comply with applicable law, (2) avoid any general legal limitations such as general statutory limitations, financial assistance, maintenance of share capital, corporate benefit, “thin capitalization” rules, retention of title claims or similar matters, or (3) avoid a conflict with the fiduciary duties of such an unlawful distribution.
company’s directors, contravention of any legal prohibition or regulatory condition, or the material risk of personal or criminal liability for any officers or directors, in each case of clause (b1) Notwithstanding through (3), as reasonably determined by the Company. Not in limitation of the immediately preceding sentence but in furtherance thereof and notwithstanding anything herein to the contrarycontrary herein or in any other Note Document, (1) the liabilities and obligations of any Guarantor incorporated in Finland under the Note Guarantee granted by any Guarantor which is incorporated in or existing under Documents shall be limited if and only to the laws extent it would constitute (i) financial assistance within the meaning of Chapter 13, Section 10 of the Grand Duchy Finnish Companies Act (Fi: osakeyhtiölaki, 624/2006, as amended), (ii) unlawful distribution of Luxembourg assets within the meaning of Chapter 13, Section 1 of the Finnish Companies Act or (eachiii) a breach of other applicable mandatory provisions of the Finnish Companies Act, a “Luxembourg Guarantor”and (2) under this Section 10.02 that provides for in respect of each Irish Note Party, the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Irish Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation Party shall not apply to any proceeds liability to the extent that it would result in such Guarantee (i) constituting unlawful financial assistance within the meaning of Section 82 of the offering Irish Companies Act or (ii) constituting a breach of Section 239 of the Notes on-lent, or otherwise made available, Irish Companies Act. Each Irish Guarantor acknowledges that to such Luxembourg Guarantor or any the extent that this guarantee has been validated under Section 202 of its direct or indirect subsidiariesthe Irish Companies Act it shall not constitute unlawful financial assistance under Section 82 of the Irish Companies Act and to the extent that Section 243 of the Irish Companies Act applies it shall not constitute a breach of Section 239 of the Irish Companies Act.
Appears in 4 contracts
Samples: Indenture (Rockley Photonics Holdings LTD), Third Supplemental Indenture (Rockley Photonics Holdings LTD), Indenture (Rockley Photonics Holdings LTD)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, foreign, provincial or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree (to the extent required by such laws) that the obligations of such Guarantor will under its Note Guarantee and this Article Ten shall be limited to the maximum amount as will, after giving effect to 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 Article 10Ten, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the breaching corporate interest rules under applicable law. Each Guarantor that makes a payment for distribution under its Note Guarantee granted by any is entitled to a contribution from each other Guarantor which in a pro rata amount based on the adjusted net assets of each Guarantor. Each Guarantor that is incorporated incorporated, organized or formed, as the case may be, in or existing under the laws of the Grand Duchy of Luxembourg Belgium (each, a “Luxembourg Belgian Guarantor”) under this Section 10.02 ), and by its acceptance hereof, each Holder hereby confirms that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) notwithstanding any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date other provision of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or any related agreements or certificates, the maximum aggregate liability hereunder of any such Belgian Guarantor will be limited so that the aggregate of such Belgian Guarantor’s liability hereunder plus all other liabilities (including conditional guarantees) of such Belgian Guarantor will not exceed its financial capacity or otherwise made available, to result in insolvency of such Luxembourg Belgian Guarantor or nor exceed any of its direct or indirect subsidiariesother limitation imposed by Belgian law.
Appears in 4 contracts
Samples: Eighth Supplemental Indenture (Navios Maritime Holdings Inc.), Supplemental Indenture (Navios Maritime Holdings Inc.), Indenture (Navios Maritime Holdings Inc.)
Limitation on Guarantor Liability. (a) Each GuarantorGuarantor that is a Subsidiary of the Company, and by its acceptance of Notes, hereof each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of by such Guarantor pursuant to its Guarantee not constitute (i) a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteelaw. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors such Guarantor hereby irrevocably agree that the obligations of such Guarantor will under its Guarantee shall be limited to the maximum amount as willwhich, after giving effect to all other contingent and fixed liabilities of such Guarantor that are relevant under such lawsGuarantor, 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 its Guarantee or pursuant to its contribution obligations under this Article 10Indenture, will result in the obligations of such Guarantor under its Note Guarantee not constituting a such fraudulent transfer or conveyance or such an unlawful distributionconveyance.
(b) Notwithstanding anything herein Each Guarantor that makes a payment or distribution under its Guarantee shall be entitled to a contribution from each other Guarantor, if any, in a pro rata amount based on the net assets of each Guarantor, determined in accordance with GAAP.
(c) Each Guarantor hereby waives all rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under federal bankruptcy law) or otherwise by reason of any payment by it pursuant to the contrary, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date provisions of this Indenture. The above limitation shall not apply to any proceeds Article 12 until payment in full of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesall Indenture Obligations.
Appears in 4 contracts
Samples: Indenture (Diversified Contractors Inc), Indenture (General Cable Corp /De/), Indenture (General Cable Corp /De/)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor will 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, 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) fraudulent transfer under applicable law or being void or voidable under any law relating to insolvency of debtors. Notwithstanding anything herein to the contraryforegoing, the Note any Guarantee granted by of any Guarantor which is incorporated organized outside the United States of America may be limited as necessary or appropriate to (1) comply with applicable law, (2) avoid any general legal limitations such as general statutory limitations, financial assistance, maintenance of share capital, corporate benefit, “thin capitalization” rules, retention of title claims or similar matters or (3) avoid a conflict with the fiduciary duties of such company’s directors, contravention of any legal prohibition or regulatory condition, or the material risk of personal or criminal liability for any officers or directors (collectively referred to as “Agreed Guarantee Principles,” in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) each case as determined by the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariessole discretion).
Appears in 4 contracts
Samples: Indenture (Clarios International Inc.), Indenture (Clarios International Inc.), Indenture (Clarios International Inc.)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteeguarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor’s liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the guarantee, but shall be limited to the maximum lesser of (a) the aggregate amount of the Company’s obligations under the Notes and this Indenture or (b) the amount, if any, which would not have (1) rendered the Guarantor “insolvent” (as willsuch term is defined in the Federal Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its guarantee with respect to the Notes was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of existing Debt immediately before such time; provided, however, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the guarantee with respect to the Notes is the amount described in clause (a) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or Trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (b).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 10.02(a), the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 3 contracts
Samples: Indenture (Centene Corp), Indenture (Centene Corp), Indenture (Centene Corp)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor will 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, 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or fraudulent transfer under applicable law or to comply with corporate benefit, financial assistance and other laws. Each Guarantor that makes a payment under its Guarantee shall be entitled upon payment in full of all guaranteed obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such an unlawful distribution.
(b) Notwithstanding anything herein other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with IFRS. Each Guarantor shall waive any and all of its rights under the existing or future laws of Guernsey, whether by virtue of the droit de division or otherwise, to require that any liability under or in connection with this Indenture be divided or apportioned with any other person or reduced in any manner whatsoever, and whether by virtue of the droit de discussion or otherwise, to require that recourse be had to the contrary, the Note Guarantee granted by assets of any Guarantor which other person before any claim is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesenforced against it.
Appears in 3 contracts
Samples: Indenture (Viasat Inc), Indenture, Indenture
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of NotesSecurities, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Debtor Relief Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federalU.S. federal or state law or law of such Guarantor’s jurisdiction of organization (which shall be Irish law, state or foreign law in the case of New Medtronic, and Luxembourg law, in the case of Medtronic Luxco) to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor will 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, 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 Article 1014, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee granted by any Guarantor which is incorporated shall be entitled upon payment in or existing under the laws full of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) all Note Guarantee obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture to a contribution from each other Guarantor which is not a direct or indirect subsidiary in an amount equal to such other Guarantor’s pro rata portion of such Luxembourg Guarantor, shall be limited payment based on the respective net assets of all the Guarantors at any the time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment determined in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with GAAP.
Appears in 3 contracts
Samples: Supplemental Indenture (Medtronic PLC), Supplemental Indenture (Medtronic PLC), Supplemental Indenture (Medtronic Inc)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notesa Security, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, U.S. Federal or state or the U.K. Insolvency Act of 1986 or any similar United Kingdom, England and Wales law or The Companies Act of 1981 (as amended), the Conveyancing Act 1983 (as amended) or such other similar Bermuda law or such other foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations Obligations of such each Guarantor will 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, 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 Obligations of such other Guarantor under this Article 10XV, result in the obligations Obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the Note fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Guarantee granted by any Guarantor which is incorporated shall be entitled upon payment in or existing under the laws full of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) all guaranteed Obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture to a contribution from each other Guarantor which is not a direct or indirect subsidiary in an amount equal to such other Guarantor’s pro rata portion of such Luxembourg Guarantor, shall be limited payment based on the respective net assets of all the Guarantors at any the time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment determined in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with GAAP.
Appears in 3 contracts
Samples: Indenture (STERIS PLC), Indenture (STERIS LTD), Indenture (STERIS LTD)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holderholder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteeguarantee. To effectuate the foregoing intention, the Trustee, the Holders holders and the Guarantors hereby irrevocably agree that each Guarantor's liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the guarantee, but shall be limited to the maximum lesser of (a) the aggregate amount of the Company's obligations under the Notes and this Indenture or (b) the amount, if any, which would not have (1) rendered the Guarantor “insolvent” (as willsuch term is defined in Bankruptcy Law and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its guarantee with respect to the Notes was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of existing Debt immediately before such time; provided, however, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the guarantee with respect to the Notes is the amount described in clause (a) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (b).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 9.02(a), the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 3 contracts
Samples: Notes Purchase Agreement (China Security & Surveillance Technology, Inc.), Indenture (China Security & Surveillance Technology, Inc.), Indenture (China Security & Surveillance Technology, Inc.)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent conveyance or a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor under its Guarantee will be limited to the maximum amount as will, after giving effect to 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 its Guarantee or pursuant to its contribution obligations under this Article 10Indenture, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to fraudulent transfer under federal or state law and not otherwise being void or voidable under any similar laws affecting the contrary, the Note rights of creditors generally. Each Guarantor that makes a payment under its Guarantee granted by any Guarantor which is incorporated shall be entitled upon payment in or existing under the laws full of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) all guaranteed obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture to a contribution from each other Guarantor which is not a direct or indirect subsidiary in an amount equal to such other Guarantor’s pro rata portion of such Luxembourg Guarantor, shall be limited payment based on the respective net assets of all the Guarantors at any the time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment determined in annex I to accordance with accounting principles generally accepted in the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesUnited States.
Appears in 3 contracts
Samples: Indenture (Hannon Armstrong Sustainable Infrastructure Capital, Inc.), Indenture (Uniti Group Inc.), Indenture (Uniti Group Inc.)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as that 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionconveyance.
(b) Notwithstanding anything herein To the extent required by the Texas Pawnshop Act, the obligations under a Note Guarantee of any Guarantor subject to such provision of the Texas Pawnshop Act will be limited to the contrarymaximum amount that will, the Note Guarantee granted by any after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor which is incorporated in or existing that are relevant under the laws such provision of the Grand Duchy Texas Pawnshop Act, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee any other Guarantor in respect of the obligations of (i) such other Guarantor, result in the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary obligations of such Luxembourg Guarantor, shall be limited at any time Guarantor under its Note Guarantee not resulting in a violation of the requirement to an aggregate amount not exceeding maintain a minimum of net assets that are used or readily available for use in the higher of:
(i) 90% business of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I Guarantor pursuant to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesTexas Pawnshop Act.
Appears in 3 contracts
Samples: Indenture (FirstCash Holdings, Inc.), Indenture (Firstcash, Inc), Supplemental Indenture (Firstcash, Inc)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as that 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 Article Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionconveyance.
(b) Notwithstanding anything herein To the extent required by the Texas Pawnshop Act, the obligations under a Note Guarantee of any Guarantor subject to such provision of the Texas Pawnshop Act will be limited to the contrarymaximum amount that will, the Note Guarantee granted by any after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor which is incorporated in or existing that are relevant under the laws such provision of the Grand Duchy Texas Pawnshop Act, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee any other Guarantor in respect of the obligations of (i) such other Guarantor, result in the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary obligations of such Luxembourg Guarantor, shall be limited at any time Guarantor under its Note Guarantee not resulting in a violation of the requirement to an aggregate amount not exceeding maintain a minimum of net assets that are used or readily available for use in the higher of:
(i) 90% business of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I Guarantor pursuant to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesTexas Pawnshop Act.
Appears in 2 contracts
Samples: Indenture (Firstcash, Inc), Indenture (Firstcash, Inc)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent conveyance or a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, Canadian, provincial or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the TrusteeTrustees, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor will shall be limited to the maximum amount as will, after giving effect to 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 its Note Guarantee or pursuant to its contribution obligations under this Article 10Indenture, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or fraudulent transfer applicable law. Each Guarantor that makes a payment under its Note Guarantee shall be entitled upon payment in full of all Guaranteed Obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such an unlawful distribution.
(b) Notwithstanding anything herein other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with IFRS. The obligations of each Guarantor are subject to the contrary, the Note Guarantee granted by any Guarantor which is incorporated limitations set forth in or existing under the laws clause (d) of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries4.15.
Appears in 2 contracts
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as will, after giving effect to 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or 80 indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 2 contracts
Samples: Indenture (Sensata Technologies Holding PLC), Indenture (Sensata Technologies Holding PLC)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteeguarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor's liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the guarantee, but shall be limited to the maximum lesser of (a) the aggregate amount of the Company's obligations under the Notes and this Indenture or (b) the amount, if any, which would not have (1) rendered the Guarantor "insolvent" (as willsuch term is defined in Bankruptcy Law and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its guarantee with respect to the Notes was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of existing Debt immediately before such time; PROVIDED, HOWEVER, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the guarantee with respect to the Notes is the amount described in clause (a) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or Trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (b).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with this Section 10.02, the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 2 contracts
Samples: Indenture (Prestige Brands Holdings, Inc.), Indenture (Prestige Brands International, Inc.)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holderholder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor will under its Note Guarantee and this Article Eleven shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor (including, without limitation, its guarantee of amounts payable under the Credit Agreement and its guarantees of the Existing Notes) that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from from, or payments made by or on behalf of of, any other Guarantor in respect of the obligations of such other Guarantor under its Note Guarantee and this Article 10Eleven, result in the obligations of such Guarantor under its Note Guarantee and this Article Eleven not constituting a fraudulent transfer or conveyance or under such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the laws. Each Guarantor that makes a payment under its Note Guarantee granted by any Guarantor which is incorporated shall be entitled upon payment in or existing under the laws full of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) all Note Guarantee obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture to a contribution from each other Guarantor which is not a direct or indirect subsidiary in an amount equal to such other Guarantor’s pro rata portion of such Luxembourg Guarantor, shall be limited payment based on the respective net assets of all the Guarantors at any the time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment determined in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with GAAP.
Appears in 2 contracts
Samples: Indenture (Western Digital Corp), Indenture (WD Media, LLC)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy LawCode, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state state, provincial, territorial or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will under its Note Guarantee and this Article Eleven shall be limited to the maximum amount as will, after giving effect to (i) all other contingent and fixed liabilities of such Guarantor (including any guarantees under any revolving credit agreement permitted by Section 4.10(b)(1) that are relevant under such laws), and after giving effect to (ii) 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 Article 10Eleven, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance conveyance. In order to provide for just and equitable contribution among the Guarantors, each Guarantor agrees that, in the event that any payment or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the Note Guarantee granted distribution is made by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Funding Guarantor”) under this Section 10.02 its Note Guarantee, such Funding Guarantor shall be entitled to a contribution from each other Guarantor in a pro rata amount based on the adjusted Net Assets of each Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by that provides for Funding Guarantor in discharging the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesObligations.
Appears in 2 contracts
Samples: Indenture (Westmoreland Energy LLC), Indenture (WESTMORELAND COAL Co)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as will, after giving effect to 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything to the contrary, nothing in this Indenture may cause the aggregate amount of Sensor-Nite NV’s liability with respect to all Indebtedness guaranteed by Sensor-Nite NV at or prior to the Issue Date, including, without limitation, pursuant to this Indenture and its Note Guarantee, to exceed the greater of (i) 90% of Sensor-Nite NV’s own funds (eigen vermogen/capitaux propres, as defined in Article 617 of the Belgian Companies Code) as derived from its latest audited financial statements available at the time any demand for payment is made and (ii) $40 million.
(c) Notwithstanding anything to the contrary in this Indenture (including in particular this Article 10) and the Notes, the obligations and liabilities of any Guarantor of the Notes incorporated in France (a “French Guarantor”) are subject to the limitations set out in this Section 10.02(c). The obligations and liabilities of any French Guarantor under this Indenture (including in particular this Article 10) and the Notes shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance within the meaning of article L. 225 216 of the French Commercial Code and/or would constitute a misuse of corporate assets within the meaning of articles L. 241 3, L. 242 6 or L. 244 1 of the French Commercial Code or any other laws or regulations having the same effect, as interpreted by French courts. The obligations and liabilities of any French Guarantor under this Indenture (including in particular this Article 10) and the Notes for the Company’s obligations under this Indenture and the Notes shall be limited, at any time, to an amount equal to the aggregate of all amounts made available under the Notes and the Indenture to the Company to the extent directly or indirectly on lent to such French Guarantor and/or its direct and indirect Subsidiaries under intercompany loan agreements (excluding, for the avoidance of doubt, any cash pooling arrangements or other cash management agreements, provided that the proceeds of the Notes shall not be used, in whole or in part, to finance, directly or indirectly, such cash pooling arrangements or other cash management agreements) and outstanding at the date a payment is to be made by such French Guarantor under this Indenture (including in particular this Article 10) and the Notes, it being specified that any payment made by a French Guarantor under this Indenture (including in particular this Article 10) and the Notes in respect of the Company’s obligations shall reduce pro tanto the outstanding amount of the intercompany loans due by such French Guarantor or its relevant direct or indirect Subsidiary under the intercompany loan agreements referred to above and that any repayment of the intercompany loans by such French Guarantor or its relevant direct or indirect Subsidiary shall reduce pro tanto the amount payable by such French Guarantor under this Indenture (including in particular this Article 10) and the Notes. It is acknowledged that no French Guarantor is acting jointly and severally with the other Guarantors and no French Guarantor shall therefore be considered as “co debiteur solidaire” as to its obligations pursuant to the guarantee given pursuant to this Indenture (including in particular this Article 10) and the Notes.
(d) Notwithstanding anything herein to the contrary, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of to guarantee the obligations thereunder of (i) the Issuer Company and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content article 34 of the presentation of the balance sheet and profit and loss account, enforcing the Luxembourg law of dated 19 December 2002 on relating to the register Register of commerce Commerce and companies and Companies as well as the accounting and the annual accounts of undertakingscompanies, as amended (“Annex I”) amended) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex Iarticle 34 of the Luxembourg law dated 19 December 2002 relating to the Register of Commerce and Companies as well as the accounting and the annual accounts of companies, as amended) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 2 contracts
Samples: Indenture (Sensata Technologies Holding PLC), Indenture (Sensata Technologies Holding PLC)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor’s liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the guarantee, but shall be limited to the maximum lesser of (a) the aggregate amount of the Company’s obligations under the Notes and this Indenture or (b) the amount, if any, which would not have (1) rendered the Guarantor “insolvent” (as willsuch term is defined in the Federal Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its Guarantee with respect to the Notes was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of existing Debt immediately before such time; provided, however, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the Guarantee with respect to the Notes is the amount described in clause (a) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (b).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 10.02(a), the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and reimbursement from the Company, and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 2 contracts
Samples: Indenture (Great Lakes Dredge & Dock CORP), Indenture (Great Lakes Dredge & Dock CORP)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each HolderHolder of such Notes, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, Federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as willwhich, after giving effect to all other contingent and fixed liabilities of such Guarantor that are relevant under such lawsGuarantor, 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 its Guarantee or pursuant to its contribution obligations under this Article 10Ten, will result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or fraudulent transfer under Federal or state law. Until such an unlawful distribution.
time as the Notes are paid in full, each Guarantor hereby waives all rights of subrogation or contribution, whether arising by contract or operation of law (bincluding, without limitation, any such right arising under Federal Bankruptcy Law) Notwithstanding anything herein or otherwise by reason of any payment by it pursuant to the contrary, the Note provisions of this Article Ten. Each Guarantor that makes a payment or distribution under its Guarantee granted by any will be entitled to a contribution from each other Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate pro rata amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 based on the register net assets of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected each Guarantor determined in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with GAAP.
Appears in 2 contracts
Samples: Indenture (Continental Resources, Inc), Indenture (Continental Resources, Inc)
Limitation on Guarantor Liability. (a) Each GuarantorGuarantor and, and by its acceptance of NotesSecurities, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent conveyance or a fraudulent transfer or conveyance for purposes of Bankruptcy Lawbankruptcy law in the United States of America, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors of a series of Securities hereby irrevocably agree that the obligations of each Guarantor of such Guarantor will series of Securities 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, 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 of such series of Securities in respect of the obligations of such other Guarantor of such series of Securities under this Article 10Fifteen, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or fraudulent transfer under applicable law. Each Guarantor of such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the Note series of Securities that makes a payment under its Guarantee granted by any Guarantor which is incorporated shall be entitled upon payment in or existing under the laws full of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) all Guaranteed obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture to a contribution from each other Guarantor which is not a direct or indirect subsidiary of such Luxembourg series of Securities in an amount equal to such other Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% ’s pro rata portion of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 payment based on the register respective net assets of commerce and companies and all the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% Guarantors of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to series of Securities at the time of such payment determined in Annex I) as reflected accordance with generally accepted accounting principles in its last annual accounts (approved by a shareholders’ meeting) available on the date United States of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesAmerica.
Appears in 2 contracts
Samples: Indenture (General Electric Co), Indenture (Kyndryl Holdings, Inc.)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of NotesNotes of any series, each HolderHolder of such series of Notes, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders of such series and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as willwhich, after giving effect to all other contingent and fixed liabilities of such Guarantor that are relevant under such lawsGuarantor, 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 its Guarantee or pursuant to its contribution obligations under this Article 10Ten, will result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or fraudulent transfer under federal or state law. Until such an unlawful distribution.
time as the Notes of such series are paid in full, each Guarantor hereby waives all rights of subrogation or contribution, whether arising by contract or operation of law (bincluding, without limitation, any such right arising under Federal Bankruptcy Law) Notwithstanding anything herein or otherwise by reason of any payment by it pursuant to the contraryprovisions of this Article Ten. Each Guarantor that makes a payment or distribution under its Guarantee will be entitled to seek contribution from each other Guarantor in a pro rata amount based on the net assets of each Guarantor determined in accordance with GAAP, so long as the Note Guarantee granted by any Guarantor which is incorporated in or existing exercise of such right does not impair the rights of the Holders under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 2 contracts
Samples: Indenture (California Resources Corp), Indenture (Occidental Petroleum Corp /De/)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of NotesSecurities, each Holder, hereby confirms that it is the intention of all such parties that the Note Security Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Debtor Relief Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federalU.S. federal or state law or law of such Guarantor’s jurisdiction of organization (which shall be Irish law, state or foreign law in the case of Actavis plc, and Bermuda law, in the case of Xxxxxx Xxxxxxxx Limited) to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Security Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor will 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, 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 Article 1016, result in the obligations of such Guarantor under its Note Security Guarantee not constituting a fraudulent transfer or conveyance or fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Security Guarantee shall be entitled upon payment in full of all Security Guarantee obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such an unlawful distributionother Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
(b) Notwithstanding anything herein to the contrarycontrary in Section 1601, the Note Guarantee granted by obligations under Section 1601 of Actavis plc and any other Guarantor which is incorporated in Ireland shall be deemed not to be undertaken or existing under incurred to the laws extent that the same would (but for this Section 1602(b)) (1) constitute unlawful financial assistance prohibited by Section 60 of the Grand Duchy Companies Xxx 0000 of Luxembourg Ireland or (each, 2) constitute a “Luxembourg Guarantor”) under this breach of Section 10.02 that provides for the Guarantee 31 of the obligations Companies Xxx 0000 of (i) Ireland. For the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary avoidance of such Luxembourg Guarantordoubt, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content extent that such indemnities, guarantees, obligations, liabilities or undertakings have been validated under Section 60 (2) to (11) of the presentation Companies Xxx 0000 of Ireland, they shall not constitute unlawful financial assistance under Section 60 of the balance sheet and profit and loss account, enforcing the law Companies Xxx 0000 of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesIreland.
Appears in 2 contracts
Samples: Supplemental Indenture (Warner Chilcott LTD), Supplemental Indenture (Warner Chilcott LTD)
Limitation on Guarantor Liability. From and after the Issue Date and upon the execution and delivery of (ax) Each Guarantorthis Indenture or (y) in the case of any Person that becomes a Guarantor after the date hereof, any supplemental indenture to this Indenture, each Guarantor who executes such supplemental indenture, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Subsidiary Guarantor will 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 Subsidiary Guarantor that are relevant under such laws, 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 Article 10, result in the obligations of such Subsidiary Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee granted by any Guarantor which is incorporated shall be entitled upon payment in or existing under the laws full of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) all guaranteed Obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture to a contribution from each other Guarantor which is not a direct or indirect subsidiary in an amount equal to such other Guarantor’s pro rata portion of such Luxembourg Guarantor, shall be limited payment based on the respective net assets of all the Guarantors at any the time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment determined in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with GAAP.
Appears in 2 contracts
Samples: Base Indenture (Dell Technologies Inc.), Base Indenture (Dell Technologies Inc)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteeguarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor’s liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the Guarantee, but shall be limited to the maximum lesser of (i) the aggregate amount of the Company’s obligations under the Notes and this Indenture or (ii) the amount, if any, which would not have (1) rendered the Guarantor “insolvent” (as willsuch term is defined in Bankruptcy Law and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its guarantee with respect to the Notes was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of existing Debt immediately before such time; provided, however, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the guarantee with respect to the Notes is the amount described in clause (i) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (ii).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 9.02(a), the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 2 contracts
Samples: Indenture (Hi-Tech Wealth Inc.), Indenture (China Natural Gas, Inc.)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteeguarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor's liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the guarantee, but shall be limited to the maximum lesser of (a) the aggregate amount of the Company's obligations under the Notes and this Indenture or (b) the amount, if any, which would not have (1) rendered the Guarantor "insolvent" (as willsuch term is defined in the Federal Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its guarantee with respect to the Notes was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of existing Debt immediately before such time; provided, however, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the guarantee with respect to the Notes is the amount described in clause (a) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or Trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (b).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 10.02(a), the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 2 contracts
Samples: Indenture (Texas San Macros Treatment Center Lp), Indenture (Psychiatric Solutions Inc)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as will, after giving effect to 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or 78 indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 2 contracts
Samples: Indenture (Sensata Technologies Holding PLC), Indenture (Sensata Technologies Holding PLC)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent conveyance or a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federalfederal or state law or abuse of corporate assets or similar laws affecting the rights of creditors generally, state or foreign law including laws relating to the liability of directors and managers, in each case to the extent applicable to its any Note Guarantee or unlawful financial assistance within the meaning of Section 82 of the Irish Companies Act 2014 (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteeas amended). To effectuate the foregoing intention, the Trustee, the Collateral Agent, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor will 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, 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee or the related security granted as Collateral therefor not constituting a fraudulent transfer or conveyance or such an fraudulent transfer under applicable law or unlawful distribution.
financial assistance within the meaning of Section 82 of the Irish Companies Act 2014 (b) Notwithstanding anything herein to the contrary, the as amended). Each Guarantor that makes a payment under its Note Guarantee granted by any Guarantor which is incorporated will be entitled upon payment in or existing under the laws full of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) all Guaranteed Obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture to a contribution from each other Guarantor which is not a direct or indirect subsidiary in an amount equal to such other Guarantor’s pro rata portion of such Luxembourg Guarantor, shall be limited payment based on the respective net assets of all the Guarantors at any the time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment, determined in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with GAAP.
Appears in 2 contracts
Samples: Senior Secured Notes Indenture (CIMPRESS PLC), Note and Warrant Purchase Agreement (CIMPRESS PLC)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, foreign, provincial or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree (to the extent required by such laws) that the obligations of such Guarantor will under its Note Guarantee and this Article Ten shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor (including any guarantee under the Credit Agreement) 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 Article 10Ten, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the conveyance. Each Guarantor that makes a payment for distribution under its Note Guarantee granted by any is entitled to a contribution from each other Guarantor which in a pro rata amount based on the adjusted net assets of each Guarantor. Each Guarantor that is incorporated incorporated, organized or formed, as the case may be, in or existing under the laws of the Grand Duchy of Luxembourg Belgium (each, a “Luxembourg Belgian Guarantor”) under this Section 10.02 ), and by its acceptance hereof, each Holder hereby confirms that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) notwithstanding any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date other provision of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or any related agreements or certificates, the maximum aggregate liability hereunder of any such Belgian Guarantor will be limited so that the aggregate of such Belgian Guarantor’s liability hereunder plus all other liabilities (including conditional guarantees) of such Belgian Guarantor will not exceed its financial capacity or otherwise made available, to result in insolvency of such Luxembourg Belgian Guarantor or nor exceed any of its direct or indirect subsidiariesother limitation imposed by Belgian law.
Appears in 2 contracts
Samples: Indenture (Navios Maritime Holdings Inc.), Indenture (Navios Maritime Holdings Inc.)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, foreign or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will under this Article Eleven shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor (including any guarantee under any Credit Facility (including any Credit Agreement) permitted under Section 4.07(b)(1) and including such Guarantor’s guarantees of the Issuer’s obligations under the Senior Notes, the Senior Notes Indenture, the Existing Senior Subordinated Notes and the Existing Senior Subordinated Notes Indentures) 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 Article 10Eleven, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance under any such applicable federal, foreign or such an unlawful distribution.
(b) Notwithstanding anything herein state law. Each Guarantor that makes a payment for distribution under its Guarantee is entitled to the contrary, the Note Guarantee granted by any a contribution from each other Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate pro rata amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 based on the register adjusted net assets of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg each Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 2 contracts
Samples: Supplemental Indenture (Alere Inc.), Sixteenth Supplemental Indenture (Alere Inc.)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as will, after giving effect to 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) . Notwithstanding anything herein to the contrary, nothing in this Indenture may cause the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding of Sensor-Nite NV's liability with respect to all Indebtedness guaranteed by Sensor-Nite NV at or prior to the higher of:
Issue Date, including, without limitation, pursuant to this Indenture and its Note Guarantee, to exceed the greater of (i) 90% of such Luxembourg Guarantor’s Sensor-Nite NV's own funds (eigen vermogen/capitaux propres and subordinated debt (all propres, as referred to defined in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content Article 617 of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) Belgian Companies Code) as reflected in derived from its last annual accounts (approved by a shareholders’ meeting) latest audited financial statements available on at the date on which a time any demand for payment is made under such Luxembourg Guarantor’s Note Guarantee; and
and (ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries$40 million.
Appears in 2 contracts
Samples: Indenture (Sensata Technologies Holding PLC), Indenture (Sensata Technologies Holding PLC)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as that 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance under federal, state or such an unlawful distributionsimilar foreign law.
(b) Notwithstanding anything herein to the contrarycontrary contained in this Indenture or in any other Secured Debt Document, the Note Guarantee granted by any Guarantor which is aggregate obligations and exposure of each of Endo Luxembourg Finance Company II S.à x.x., a private limited liability company (société à responsabilité limitée) incorporated in or existing under the laws of Luxembourg, having its registered office at 0, Xxxxx xx xx Xxxx, X-0000 Luxembourg and registered with the Grand Duchy Luxembourg Register of Luxembourg Commerce and Companies (each, a “Luxembourg Guarantor”R.C.S Luxembourg) under this Section 10.02 that provides for the Guarantee number B 182.794 and any other Guarantor established in Luxembourg of the obligations of (i) the which any Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such (a “Luxembourg Guarantor”) in respect of the obligations of the Issuers under the Notes, shall be limited at any time to an aggregate amount not exceeding 95% of the higher greater of:
(i1) 90% an amount equal to the sum of such the relevant Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss accountNet Assets, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in the most recent financial information of the relevant Luxembourg Guarantor available to the Trustee at the Issue Date, including, without limitation, its last annual accounts most recently and duly approved financial statements (approved comptes annuels) and any (unaudited) interim financial statements signed by a shareholders’ meetingits board of managers (collège de gérance) or by its board of directors (conseil d’administration), as applicable (or, if no financial information is available on with respect to the date on which a demand is made under relevant Luxembourg Guarantor at the Issue Date, the first financial information available with respect to such Luxembourg Guarantor’s Note GuaranteeGuarantor after the Issue Date); and
(ii2) 90% an amount equal to the sum of such the relevant Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) Net Assets, as reflected in the most recent financial information of the relevant Luxembourg Guarantor available to the Trustee at the date the Note Guarantee is enforced against the relevant Luxembourg Guarantor, including, without limitation, its last annual accounts most recently and duly approved financial statements (approved comptes annuels) and any (unaudited) interim financial statements signed by a shareholders’ meetingits board of managers (gérants) or by its board of directors (conseil d’administration), as applicable. Should the financial information of the relevant Luxembourg Guarantor not be available on the date of this Indenture. The above limitation shall not apply Issue Date, the relevant Luxembourg Guarantor’s Net Assets will be determined in accordance with the Luxembourg accounting principles referred to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesbelow.
Appears in 2 contracts
Samples: Indenture (Endo International PLC), Indenture (Endo International PLC)
Limitation on Guarantor Liability. (aA) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Subsidiary Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Lawany bankruptcy law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state law or foreign law any comparable laws in any other jurisdiction to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the The obligations of such each Guarantor under its Subsidiary Guarantee will be limited to the maximum amount as will, after giving effect to 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 its Subsidiary Guarantee or pursuant to its contribution obligations under this Article 10Indenture, result in the obligations of such Guarantor under its Note Subsidiary Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionfraudulent transfer under federal or state law or any comparable laws in any other jurisdiction and not otherwise being void or voidable under any similar laws affecting the rights of creditors generally.
(bB) Notwithstanding anything herein Limitation with respect to Swiss Guarantors
(i) If and to the contrary, the Note Guarantee granted by any extent a Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg Switzerland (each, a “Luxembourg Swiss Guarantor”) becomes directly or indirectly liable under this Section 10.02 that provides Indenture or any other Indenture Documents for obligations of any other Company Indenture Party (other than the Guarantee wholly owned direct or indirect subsidiaries of such Swiss Guarantor) (the “Restricted Obligations”) and if complying with such obligations would constitute a repayment of capital (Einlagerückgewähr), a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung) by such Swiss Guarantor or would otherwise be restricted under Swiss law and practice then applicable, such Swiss Guarantor’s aggregate liability for Restricted Obligations shall not exceed the amount of the Swiss Guarantor’s freely disposable equity (frei verfügbares Eigenkapital) at the time it becomes liable including, without limitation, any statutory reserves which can be transferred into unrestricted, distributable reserves, in accordance with Swiss law (the “Freely Disposable Amount”).
(ii) This limitation shall only apply to the extent it is a requirement under applicable law at the time the Swiss Guarantor is required to perform Restricted Obligations under any Indenture Document. Such limitation shall not free the Swiss Guarantor from its obligations in excess of the Freely Disposable Amount, but merely postpone the performance date thereof until such times when the Swiss Guarantor has again freely disposable equity.
(iii) If the enforcement of the obligations of the Swiss Guarantor under any Indenture Documents would be limited due to the effects referred to in this Indenture, the Swiss Guarantor shall further, to the extent permitted by applicable law and Swiss accounting standards and upon request by the Collateral Trustee, (i) write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale, however, only if such assets are not necessary for the Swiss Guarantor’s business (nicht betriebsnotwendig) and (ii) reduce its share capital to the minimum allowed under then applicable law, provided that such steps are permitted under the Indenture Documents.
(iv) The Swiss Guarantor and any holding company of the Swiss Guarantor which is a party to an Indenture Document shall procure that the Swiss Guarantor will take and will cause to be taken all and any action as soon as reasonably practicable but in any event within 30 Business Days from the request of the Collateral Trustee, including, without limitation, (i) the Issuer and/or passing of any shareholders’ resolutions to approve any payment or other performance under this Indenture or any other Indenture Document, (ii) the provision of an audited interim balance sheet, (iii) the provision of a determination by the Swiss Guarantor of the Freely Disposable Amount based on such audited interim balance sheet, (iv) the provision of a confirmation from the auditors of the Swiss Guarantor that a payment of the Swiss Guarantor under the Indenture or any other Indenture Documents in an amount corresponding to the Freely Disposable Amount is in compliance with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves, and (v) the obtaining of any other confirmations which may be required as a matter of Swiss mandatory law in force at the time the Swiss Guarantor which is not required to make a direct payment or indirect subsidiary perform other obligations under this Indenture or any other Indenture Document, in order to allow a prompt payment in relation to Restricted Obligations with a minimum of such Luxembourg limitations.
(v) If so required under applicable law (including tax treaties) at the time it is required to make a payment under this Indenture and any Indenture Document, the Swiss Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i1) 90% shall use its best efforts to ensure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to such Luxembourg Guarantor’s capitaux propres and subordinated debt tax by notification pursuant to applicable law (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content including tax treaties) rather than payment of the presentation of tax;
(2) shall deduct the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended Swiss Withholding Tax at such rate (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available being 35% on the date on which hereof) as in force from time to time if the notification procedure pursuant to sub-paragraph (a) above does not apply; or shall deduct the Swiss Withholding Tax at the reduced rate resulting after discharge of part of such tax by notification if the notification procedure pursuant to sub-paragraph (a) applies for a demand is made under part of the Swiss Withholding Tax only; and shall pay within the time allowed any such Luxembourg Guarantor’s Note Guaranteetaxes deducted to the Swiss Federal Tax Administration; and
(ii3) 90% shall promptly notify the Collateral Trustee that such notification or, as the case may be, deduction has been made, and provide the Collateral Trustee with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration.
(vi) In the case of a deduction of Swiss Withholding Tax, the Swiss Guarantor shall use its best efforts to ensure that any person that is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment under this Indenture or any Indenture Documents, will, as soon as possible after such deduction:
(1) request a refund of the Swiss Withholding Tax under applicable law (including tax treaties), and
(2) pay to the Collateral Trustee upon receipt any amount so refunded. The Collateral Trustee shall co-operate with the Swiss Guarantor to secure such refund.
(vii) To the extent the Swiss Guarantor is required to deduct Swiss Withholding Tax pursuant to this Indenture or any other Indenture Documents, and if the Freely Disposable Amount is not fully utilised, the Swiss Guarantor will be required to pay an additional amount so that after making any required deduction of Swiss Withholding Tax the aggregate net amount paid to the Collateral Trustee is equal to the amount which would have been paid if no deduction of Swiss Withholding Tax had been required, provided that the aggregate amount paid (including the additional amount) shall in any event be limited to the Freely Disposable Amount. If a refund is made to a Notes Secured Party, such Notes Secured Party shall transfer the refund so received to the Swiss Guarantor, subject to any right of set-off of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred Notes Secured Party pursuant to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesIndenture Documents.
Appears in 2 contracts
Samples: Indenture (Maxeon Solar Technologies, Ltd.), Indenture (Maxeon Rooster HoldCo, Ltd.)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notesa Security, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, U.S. federal or state or the U.K. Insolvency Act of 1986 or any similar United Kingdom, England and Wales law or The Companies Act of 1981 (as amended), the Conveyancing Act 1983 (as amended) or such other similar Bermuda law or such other foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations Obligations of such each Guarantor will 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, 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 Obligations of such other Guarantor under this Article 10XV, result in the obligations Obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the Note fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Guarantee granted by any Guarantor which is incorporated shall be entitled upon payment in or existing under the laws full of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) all guaranteed Obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture to a contribution from each other Guarantor which is not a direct or indirect subsidiary in an amount equal to such other Guarantor’s pro rata portion of such Luxembourg Guarantor, shall be limited payment based on the respective net assets of all the Guarantors at any the time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment determined in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with GAAP.
Appears in 2 contracts
Samples: Indenture (Signet Jewelers LTD), Indenture (Sterling Jewelers LLC)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign provincial law in any jurisdiction to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Collateral Agent, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as that 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionconveyance.
(b) Notwithstanding anything herein to the contraryAny guarantee, the Note Guarantee granted indemnity, obligation and/or liability granted, incurred, undertaken, assumed or otherwise agreed by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg Spain (each, a “Luxembourg Spanish Guarantor”) under this Section 10.02 shall be limited as follows:
(1) it shall not cover any obligation to the extent that provides for the Guarantee same would constitute unlawful financial assistance within the meaning of sections 143 and 150 of the Spanish Companies Act (“Real Decreto Legislativo 1/2010, de 2 de xxxxx, por el que se aprueba el texto refundido de xx Xxx de Sociedades de Capital”). Such limitations of the liabilities and obligations of any Spanish Guarantor may have the effect of reducing the amount of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time liabilities assumed to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guaranteezero; and
(ii2) 90% it shall not be granted by the Spanish Guarantor if it is incorporated as a “sociedad de responsabilidad limitada”, to the extent that the same would be in breach of such Luxembourg Guarantor’s capitaux propres and subordinated debt the prohibition contained in section 402 of the Spanish Companies Act (all as referred to in Annex I) as reflected in its last annual accounts (approved “Real Decreto Legislativo 1/2010, de 2 de xxxxx, por el que se aprueba el texto refundido de xx Xxx de Sociedades de Capital”). In addition, a Note Guarantee provided by a shareholders’ meetingSpanish Guarantor as provided for in this Article 10 shall be deemed to be null and void if the principal obligation secured is declared null and void.
(c) available on Each Guarantor that as of the date of this Indenture. The above limitation Indenture or thereafter is incorporated, organized or formed, as the case may be, in Colombia (a “Colombian Guarantor”), and by its acceptance hereof, each Holder, the Collateral Agent and the Trustee, hereby confirm that the liability of such Colombian Guarantor shall not apply be limited to the amount that any proceeds of the offering of the Notes on-lent, such Colombian Guarantor may be able to pay without exceeding its financial capacity or otherwise made available, to resulting in insolvency of such Luxembourg Guarantor or any of its direct or indirect subsidiariesColombian Guarantor.
Appears in 1 contract
Samples: Indenture (Atento S.A.)
Limitation on Guarantor Liability. (a) Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Subsidiary Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act Act, the Uniform Voidable Transactions Act, or any similar federal, U.S. federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Collateral Agent, the Holders and the Subsidiary Guarantors hereby irrevocably agree that the obligations of such each Subsidiary Guarantor will 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 Subsidiary Guarantor that are relevant under such laws, laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under this Article 1018, result in the obligations of such Subsidiary Guarantor under its Note Guarantee not constituting a fraudulent transfer conveyance or, fraudulent transfer, or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the voidable transaction under applicable law. Each Subsidiary Guarantor that makes a payment under its Note Guarantee granted by any Guarantor which is incorporated shall be entitled upon payment in or existing under the laws full of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) all Note Guaranteed obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture to a contribution from each other Subsidiary Guarantor which is not a direct or indirect subsidiary in an amount equal to such other Subsidiary Guarantor’s pro rata portion of such Luxembourg Guarantor, shall be limited payment based on the respective net assets of all the Subsidiary Guarantors at any the time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment determined in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with U.S. GAAP.
Appears in 1 contract
Samples: First Supplemental Indenture and Amendment to Security and Pledge Agreement (UpHealth, Inc.)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes each Holder of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as willwhich, after giving effect to all other contingent and fixed liabilities of such Guarantor that are relevant under such lawsGuarantor, 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 its Note Guarantee or pursuant to its contribution obligations under this Article 10ARTICLE XI, will result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or fraudulent transfer under federal or state law. Until such an unlawful distribution.
time as the Notes are paid in full, each Guarantor hereby waives all rights of subrogation or contribution, whether arising by contract or operation of law (bincluding, without limitation, any such right arising under Federal Bankruptcy Law) Notwithstanding anything herein or otherwise by reason of any payment by it pursuant to the contraryprovisions of this ARTICLE XI. Each Guarantor that makes a payment or distribution under its Note Guarantee will be entitled to seek contribution from each other Guarantor in a pro rata amount based on the net assets of each Guarantor determined in accordance with GAAP, so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 1 contract
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as that will, after giving effect to 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 Article 1012, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or fraudulent conveyance under federal or such an unlawful distributionstate law and not otherwise be void or voidable under any similar laws affecting the rights of creditors generally.
(b) Notwithstanding anything herein contained to the contrary, no Property of Intermediate Holdco, other than the Collateral of Intermediate Holdco pledged as collateral pursuant to the Intermediate Holdco Pledge Agreement and the Intermediate Holdco Security Agreement (collectively, the “Intermediate Holdco Collateral”), shall be sold, levied upon or otherwise used to satisfy any judgment rendered in connection with any action brought against Intermediate Holdco with respect to its Guarantee. To the extent that the Intermediate Holdco Collateral is not sufficient to fully discharge and satisfy the Obligations of Intermediate Holdco hereunder, the Intermediate Holdco will not be personally liable for any such deficiency and the Trustee shall not seek a deficiency or personal judgment against Intermediate Holdco for payment of the Obligations of Intermediate Holdco evidenced by this Guarantee. The Trustee’s recourse under this Guarantee shall be limited solely to its rights as a creditor secured by liens in the Intermediate Holdco Collateral. Notwithstanding the provisions of this Section 12.02(b) to the contrary, nothing contained in herein or any other Note Guarantee granted by any Guarantor which is incorporated in Document shall be construed to (i) impair or existing limit the rights of the Collateral Trustee arising under the laws of Intermediate Holdco Pledge Agreement and the Grand Duchy of Luxembourg Intermediate Holdco Security Agreement or any other Security Document to which Intermediate Holdco is a party; (each, a “Luxembourg Guarantor”ii) under this Section 10.02 that provides for the Guarantee impair or limit any of the obligations of Intermediate Holdco under the Intermediate Holdco Pledge Agreement and the Intermediate Holdco Security Agreement or any other Note Document to which it is a party; (iiii) impair or limit the Issuer and/or (ii) validity of the indebtedness evidenced by the other Note Documents or prevent the taking of any action permitted by law against the Company or any other Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I pursuant to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content terms of the presentation Note Documents to which the Company or such Guarantor is a party; (iv) prevent the commencement of any action, suit or proceeding against any Person (or prevent the balance sheet service of papers under any Person) for the purpose of obtaining jurisdiction over Intermediate Holdco, (v) prevent the Collateral Trustee or any other holder of Parity Lien Obligations from exercising and profit enforcing, consistent with the provisions of this Section 12.02(b), any other remedy allowed at law or in equity or by statute or by the terms of this Article 12, the Intermediate Holdco Pledge Agreement or the Intermediate Holdco Security Agreement, or (vi) prevent the Collateral Trustee or any other holder of Parity Lien Obligations from recovering from Intermediate Holdco (or the Company or any other Guarantor), or limit the Collateral Trustee’s or such other Parity Lien Obligations holder’s recourse against Intermediate Holdco (or the Company or any other Guarantor) for any and loss accountall funds, enforcing damages, losses, expenses, costs or other similar amounts (including, without limitation, reasonable attorneys’ fees and expenses) incurred by the law Collateral Trustee or such other holder of 19 December 2002 on Parity Lien Obligations as a result of any act or omission constituting willful misconduct or gross negligence, any fraudulent act or omission, or any intentional breach of this Article 12, the register of commerce and companies and Intermediate Holdco Pledge Agreement or the accounting and annual accounts of undertakingsIntermediate Holdco Security Agreement, in each case as amended (“Annex I”) ) as reflected in its last annual accounts (approved determined by a shareholders’ meeting) available on the date on which court of competent jurisdiction in a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes onfinal, non-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesappealable judgment.
Appears in 1 contract
Samples: Indenture (Energy XXI LTD)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor will 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, 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Guarantee shall be entitled upon payment in full of all guaranteed obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such an unlawful distributionother Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
(b) Notwithstanding anything herein Except as otherwise provided for in subsections (d), (e), (f) and (h) below, the Holders agree not to enforce this Guarantee or any obligation of Avago Technologies GmbH under any document entered into in relation hereto (for the purposes of this Section 10.02, collectively, the “Claims”) against Avago Technologies GmbH if and to the contrary, extent that such enforcement would otherwise result in the Note Guarantee granted by any Guarantor which is incorporated in or existing under net assets of Avago Technologies GmbH (Eigenkapital within the laws meaning of Section 266 paragraph 3 A of the Grand Duchy German Commercial Code (Handelsgesetzbuch)) falling below the amount of Luxembourg its stated share capital (each, a “Luxembourg Guarantor”Stammkapital) under this Section 10.02 that provides for or increase any existing capital impairment (Begründung oder Vertiefung einer Unterbilanz) in the Guarantee meaning of Sections 30 and 31 of the obligations German Act on Limited Liability Companies (GmbHG). In calculation of (i) the Issuer and/or (ii) net assets and the stated share capital any Guarantor which is not a direct Indebtedness and other contractual liabilities incurred by Avago Technologies GmbH in violation of the provisions hereunder or indirect subsidiary any increases of such Luxembourg Guarantor, the stated share capital of Avago Technologies GmbH in violation of the provisions hereunder shall be limited at any time disregarded. Any recourse claim of Avago Technologies GmbH against its affiliated companies shall not be regarded as an asset in determining the net assets of Avago Technologies GmbH, if and to the extent that Avago Technologies GmbH provides evidence, to the reasonable satisfaction of the Trustee, that such recourse claim is of no value (nicht werthaltig).
(c) If and to the extent legally permissible and commercially justifiable in respect of the business of Avago Technologies GmbH, Avago Technologies GmbH shall, following the receipt of an aggregate amount not exceeding Enforcement Notice (as defined below), if and to the higher ofextent:
(i) 90% it does not have sufficient assets to allow an enforcement of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to any collateral in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guaranteeaccordance with Section 10.02(b); and
(ii) 90% the Holders would (but for this paragraph) be entitled to enforce the Claims granted hereunder, realize any and all of its assets that are shown in the balance sheet with a book value (Buchwert) that is substantially lower than the market value of such Luxembourg Guarantor’s capitaux propres assets, and subordinated debt which are not essentially necessary for the business of Avago Technologies GmbH (all betriebsnotwendig).
(d) The limitations set out in Section 10.02(a) shall only apply if and to the extent that Avago Technologies GmbH evidences by providing the Trustee:
(i) within ten (10) Business Days following a notice by the Trustee to the Company of its intention to enforce the Claims (for purposes of this Section 10.02, the “Enforcement Notice”), with a written confirmation by the managing director(s) on behalf of Avago Technologies GmbH specifying if and to what extent Claims granted hereunder cannot be enforced as referred it would cause the net assets of Avago Technologies GmbH to fall below the amount of its stated share capital (supported by evidence further specified in Annex Ithe last clause of this paragraph (d)) as reflected in its last annual accounts (approved by for purposes of this Section 10.02, the “Management Determination”) and the Trustee has not contested this Management Determination and argued that no or a shareholders’ meetinglesser amount would be necessary to maintain the stated share capital of Avago Technologies GmbH; or
(ii) available on within thirty (30) Business Days after the date on which the Trustee contested the Management Determination, with a written confirmation (Bescheinigung aufgrund prüferischer Durchsicht) by the statutory auditor of Avago Technologies GmbH (Abschlussprüfer) (for purposes of this IndentureSection 10.04, the “Auditor’s Determination”) with respect to the financial statements provided to the Trustee pursuant to the next paragraph. The above Management Determination shall be supported by (i) a list of Indebtedness drawn by or passed on to, Avago Technologies GmbH pursuant to Section 10.04(h) below, and (ii) evidence reasonably satisfactory to the Trustee showing the amount of the net assets and the stated share capital of Avago Technologies GmbH.
(e) If the Trustee disagrees with the Auditor’s Determination, the Holders shall be entitled to enforce the Claims up to the amount which is undisputed between itself and Avago Technologies GmbH in accordance with the provisions of Section 10.02(b) above. In relation to the amount which is disputed, the Holders shall be entitled to further pursue their Claims (if any) and Avago Technologies GmbH shall be entitled to defend itself in court and to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date that the Enforcement Notice was given). If, after it has been provided with an Auditor’s Determination that prevented it from the enforcement of the security interest, the Trustee ascertains in good faith that the financial condition of Avago Technologies GmbH has substantially improved (in particular if Avago Technologies GmbH has taken any action in accordance with Section 10.02(c) above), the Administrative Agent may, at Avago Technologies GmbH’s cost and expense, arrange for the preparation of an updated balance sheet of Avago Technologies GmbH by the auditors having prepared the Auditor’s Determination in order for such auditors to determine whether (and if so, to what extent) an enforcement would not lead to the net assets of Avago Technologies GmbH falling below the amount of its stated share capital.
(f) If any enforcement action was taken without limitation because the Management Determination and/or the Auditor’s Determination, as the case may be, was not delivered within the relevant time frame, the Holders shall repay to Avago Technologies GmbH any amount which is necessary to maintain its stated share capital, calculated as of the date that the Enforcement Notice was given.
(g) In addition, the Claims shall not apply be enforced if and to any proceeds the extent that such enforcement would lead to a breach of the offering prohibition of insolvency causing intervention (Verbot des existenzvernichtenden Eingriffs) by depriving Avago Technologies GmbH of the liquidity necessary to fulfill its financial liabilities to its creditors.
(h) Notwithstanding paragraphs (b) through (g) above, the Administrative Agent shall be entitled to enforce the Claims without any limitation if and to the extent the Claims secure or correspond to proceeds or portions of proceeds from the sale of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor by any Issuer or any of its direct affiliates to the extent the funds will be borrowed by, passed on or indirect subsidiariesotherwise made available to Avago Technologies GmbH, to the extent outstanding at the level of Avago Technologies GmbH and including interest and fees accrued thereon and unpaid by Avago Technologies GmbH as of the date that the Enforcement Notice was given.
(i) To the extent that applicable requirements of law prohibit any Guarantor from providing any Guarantee or collateral security in respect of loans or other financial accommodations made to finance in whole or in part the acquisition of the capital stock, then the obligations of such Guarantor shall be deemed not to include that portion of the obligations of the Issuers that are applied for the purpose of acquiring the capital stock of such Guarantor.
(j) Notwithstanding any other provision of this Article 10 or this Indenture, Avago Technologies Italy S.R.L. shall only be liable up to the amount of the lower of (i) 100.0% of the principal aggregate amount of the Notes allocated to Avago Technologies Italy S.R.L. by the Issuers, and (ii) the amount of the Notes allocated to Avago Technologies Italy S.R.L. at the time of the enforcement of the Guarantee.
(k) Notwithstanding any other provision of this Article 10 or this Indenture, Avago Technologies U.K. Ltd. shall not have any obligation or liability under its Guarantee, which, if it were incurred or any part thereof were incurred, such Guarantee would constitute unlawful financial assistance for the purpose of Sections 151 and 152 of the U.K. Companies Axx 0000 and such obligation or liability shall be specifically excluded.
(l) In connection with the execution and delivery by Kxxxxx Xxx-Xxxx Xxx and/or Axxx Xxxxxxx Xxxxxxx and/or Lxxx Oxxxxxx Xxxxx Xxxxxxxx and/or Rxxxxx Xxxxx Xxxxxxxx, on behalf of Avago Technologies México, S. de R.X. de C.V., of the Guarantee, this Indenture and any and all documents related hereto, all parties hereto hereby irrevocably waive any rights that they or any beneficiaries under this Indenture or any document related hereto, may now or in the future have against any of the above mentioned individuals as attorney-in-fact and representative of Avago Technologies México, S. de R.X. de C.V. under Article 7 of the Commercial Companies Act (Ley General de Sociedades Mercantiles) of Mexico.
(m) Notwithstanding any other provision of this Article 10 or this Indenture, to the extent any Subsidiary of the Company executes and delivers a supplemental indenture to this Indenture, the form of which is attached as Exhibit D hereto, providing for a Guarantee by such Subsidiary, the applicable limitations on the Guarantee pursuant to the local law of such Subsidiary shall be added to the supplemental indenture.
Appears in 1 contract
Samples: Indenture (Avago Technologies Manufacturing (Singapore) Pte. Ltd.)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent conveyance or a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federalfederal or state law or abuse of corporate assets or similar laws affecting the rights of creditors generally, state or foreign law including laws relating to the liability of directors and managers, in each case to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor will 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, 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee granted by any Guarantor which is incorporated will be entitled, upon payment in or existing under the laws full of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) all Guaranteed Obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture, to a contribution from each other Guarantor which is not a direct or indirect subsidiary in an amount equal to such other Guarantor’s pro rata portion of such Luxembourg Guarantor, shall be limited payment based on the respective net assets of all the Guarantors at any the time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment, determined in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with GAAP.
Appears in 1 contract
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteeguarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor's liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the Guarantee, but shall be limited to the maximum lesser of (a) the aggregate amount of the Companies' obligations under the Notes and this Indenture or (b) the amount, if any, which would not have (1) rendered the Guarantor "insolvent" (as willsuch term is defined in the Federal Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its Guarantee with respect to the Notes was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of existing Indebtedness immediately before such time; provided, however, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the Guarantee with respect to the Notes is the amount described in clause (a) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or Trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (b).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 10.02(a), the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 1 contract
Samples: Indenture (Twi Holdings Inc)
Limitation on Guarantor Liability. Subject to this Article 10, each of (ai) Each Guarantorthe Guarantors hereby on the Issue Date and (iii) any other Guarantors from time to time, upon the execution and delivery of any other supplemental indenture to this Indenture, and, by its acceptance of Secured Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Subsidiary Guarantor will 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 Subsidiary Guarantor that are relevant under such laws, 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 Article 10, result in the obligations of such Subsidiary Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee granted by any Guarantor which is incorporated shall be entitled upon payment in or existing under the laws full of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) all guaranteed Obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture to a contribution from each other Guarantor which is not a direct or indirect subsidiary in an amount equal to such other Guarantor’s pro rata portion of such Luxembourg Guarantor, shall be limited payment based on the respective net assets of all the Guarantors at any the time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment determined in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with GAAP.
Appears in 1 contract
Limitation on Guarantor Liability. (a) Each Subject to paragraph (b) below, each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of applicable Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as that 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 Article 10XVI, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or conveyance. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that its Guarantee, and the waivers set forth herein, are knowingly made in contemplation of such an unlawful distributionbenefits.
(b) Notwithstanding anything herein If and to the contraryextent that a Swiss Guarantor becomes liable under or in connection with this Indenture for obligations of any other obligor (other than its wholly owned direct or indirect subsidiaries) and if complying with such obligation would constitute a repayment of capital (Einlagerückgewähr), the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws a violation of the Grand Duchy legally protected reserves (gesetzlich geschützte Reserven) or the payment of Luxembourg a constructive dividend (eachverdeckte Gewinnausschüttung) by such Swiss Guarantor or would otherwise be restricted under Swiss mandatory law or accounting principles then applicable (the “Restricted Obligations”), a such Swiss Guarantor’s liability will be limited to the amount of such Swiss Guarantor’s freely disposable equity in accordance with Swiss law and Swiss accounting principles (the “Luxembourg GuarantorSwiss Available Amount”) under ). The limitation in this Section 10.02 16.02(b) shall only apply to the extent that provides for it constitutes a requirement under Swiss mandatory legal and accounting principles at the Guarantee time a Swiss Guarantor is required to perform the Restricted Obligations. Such limitation will not free such Swiss Guarantor from its obligations in excess of the Swiss Available Amount, but will merely postpone the performance date thereof until such time(s) when such performance is again permitted from a Swiss legal and Swiss accounting point of view. If the enforcement of the obligations of a Swiss Guarantor would be limited due to the effects referred to in this Indenture, such Swiss Guarantor shall further, to the extent permitted by applicable law and accounting principles and upon request by the Holders, promptly (i) transfer statutory reserves into unrestricted, distributable reserves, (ii) write up or realize any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of realization, however, only if such assets are not necessary for such Swiss Guarantor’s business (nicht betriebsnotwendig) and such sale is permitted under this Indenture and (iii) take all other measures necessary or useful to allow the Holders to obtain the maximum benefit under this guarantee. Such Swiss Guarantor shall, and any holding company of such Swiss Guarantor that is a party to this Indenture shall procure that such Swiss Guarantor shall, take and cause to be taken all and any action as soon as reasonably practicable but in any event within 40 days from the request of the Holders, including (i) the Issuer and/or passing of any shareholders’ resolutions to approve any payment or other performance under this Indenture, (ii) any the provision of an up-to-date audited interim balance sheet, (iii) the provision of a determination by such Swiss Guarantor which is not of the Swiss Available Amount based on such audited interim balance sheet, (iv) the provision of a direct or indirect subsidiary confirmation from the auditors of such Luxembourg Swiss Guarantor that the payment in an amount corresponding to the Swiss Available Amount or the performance of other obligations is in compliance with the provisions of Swiss corporate law that are aimed at protecting the share capital and legal reserves and (v) the obtaining of any other confirmations which may be necessary or useful as a matter of Swiss mandatory law in force at the time of enforcement, in order to allow a prompt payment or performance of other obligations with a minimum of limitations. If Swiss Withholding Tax is required to be deducted from any payment under this Indenture, including but not limited to, any guarantee payment and any payment of proceeds of any enforcement under applicable law at the time of enforcement, the relevant Swiss Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% shall use its best efforts to ensure that the proceeds of any enforcement can be paid without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to such Luxembourg Guarantor’s capitaux propres and subordinated debt tax by notification pursuant to applicable law (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content including tax treaties) rather than payment of the presentation of tax (the balance sheet and profit and loss account, enforcing “Swiss Notification Procedure”);
(ii) shall deduct the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended Swiss Withholding Tax at such rate (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available being 35% on the date on which hereof) as in force from time to time if the Swiss Notification Procedure does not apply; or shall deduct the Swiss Withholding Tax at the reduced rate resulting after discharge of part of such tax by notification if the Swiss Notification Procedure applies for a demand is made under part of the Swiss Withholding Tax only; and shall pay within the time allowed any such Luxembourg Guarantor’s Note Guaranteetaxes deducted to the Swiss Federal Tax Administration; and
(iiiii) 90% shall promptly notify the respective beneficiary or beneficiaries that such notification or, as the case may be, deduction has been made, and provide the respective beneficiary or beneficiaries with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration. In the case of a deduction of Swiss Withholding Tax, the Swiss Guarantor shall use its best efforts to ensure that any person that is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment under this Indenture, will, as soon as possible after such deduction: request a refund of the Swiss Withholding Tax under applicable law (including tax treaties), and pay to the respective beneficiary or beneficiaries upon receipt any amount so refunded. The respective beneficiary or beneficiaries shall co-operate with the Swiss Guarantor to secure such refund. To the extent such a deduction is made, any Swiss Guarantor shall not hold harmless the beneficiary or the beneficiaries in relation to any such deduction. To the extent such Swiss Guarantor is required to deduct Swiss Withholding Tax pursuant to this Indenture, and if the Swiss Available Amount is not fully utilized, such Swiss Guarantor shall be required to pay, directly or by way of use of the proceeds of enforcement, an additional amount so that after making any required deduction of Swiss Withholding Tax the aggregate net amount paid to the beneficiary, directly or by way of use of the proceeds of enforcement, is equal to the amount which would have been paid if no deduction of Swiss Withholding Tax had been required. If a refund is made to a beneficiary, such beneficiary shall transfer the refund so received to the Swiss Guarantor, subject to any right of set-off of such Luxembourg Guarantor’s capitaux propres beneficiary pursuant to this Indenture and subordinated debt (all as referred subject to not being in Annex Ia less favorable net after-tax position than the beneficiary would have been in if the Swiss Withholding Tax had not been required in the first instance. For the avoidance of doubt, nothing in this Section 16.02(b) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date relating to Swiss Withholding Tax shall limit or reduce any obligation to pay Additional Amounts pursuant to any other provision of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 1 contract
Samples: Purchase Agreement (Quotient LTD)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteeguarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor’s liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the guarantee, but shall be limited to the maximum lesser of (x) the aggregate amount of the Company’s obligations under the Notes and this Indenture or (y) the amount, if any, which would not have (1) rendered the Guarantor “insolvent” (as willsuch term is defined in Bankruptcy Law and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its guarantee with respect to the Notes was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of existing Debt immediately before such time; provided, however, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the guarantee with respect to the Notes is the amount described in clause (x) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (y).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 9.02(a), the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 1 contract
Limitation on Guarantor Liability. Subject to this Article 10, each of (ai) Each Guarantorthe Diamond Guarantors, (ii) from and after the consummation of the Acquisition and upon the execution and delivery of the Effective Date Supplemental Indenture, the RSN Guarantors and (iii) any other Guarantors from time to time, upon the execution and delivery of any other supplemental indenture to this Indenture, and, by its acceptance of Secured Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Subsidiary Guarantor will 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 Subsidiary Guarantor that are relevant under such laws, 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 Article 10, result in the obligations of such Subsidiary Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee granted by any Guarantor which is incorporated shall be entitled upon payment in or existing under the laws full of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) all guaranteed Obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture to a contribution from each other Guarantor which is not a direct or indirect subsidiary in an amount equal to such other Guarantor’s pro rata portion of such Luxembourg Guarantor, shall be limited payment based on the respective net assets of all the Guarantors at any the time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment determined in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with GAAP.
Appears in 1 contract
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteeguarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor's liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the guarantee, but shall be limited to the maximum lesser of (a) the aggregate amount of HLI's obligations under the Notes and this Indenture or (b) the amount, if any, which would not have (1) rendered the Guarantor "insolvent" (as willsuch term is defined in the Federal Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its guarantee with respect to the Notes was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of existing Debt immediately before such time; provided, however, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the guarantee with respect to the Notes is the amount described in clause (a) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or Trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (b).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 10.2(a), the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 1 contract
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor will 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, 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee granted by any shall be entitled upon payment in full of all guaranteed Obligations under this Indenture to a contribution from each other Guarantor which is in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP. Any Note Guarantee of a Guarantor incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres England and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation Wales shall not apply to any proceeds the extent that it would result in such Note Guarantee constituting unlawful financial assistance within the meaning of sections 678 or 679 of the offering Companies Act 2006. Any Note Guarantee of a Guarantor incorporated under the laws of Ireland shall not apply to the extent that it would result in such Note Guarantee constituting financial assistance as prohibited by section 82 of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesIrish Companies Act 2014.
Appears in 1 contract
Samples: Indenture (New Fortress Energy Inc.)
Limitation on Guarantor Liability. (a) Each Guarantor, and each Holder by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteeguarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor's liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the guarantee, but shall be limited to the maximum lesser of (a) the aggregate amount of the Issuers' Obligations under the Notes and this Indenture or (b) the amount, if any, which would not have (1) rendered the Guarantor "insolvent" (as willsuch term is defined in the Federal Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its guarantee with respect to the Notes was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of Existing Indebtedness immediately before such time; provided, however, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the guarantee with respect to the Notes is the amount described in clause (a) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or Trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (b).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 10.2(a) hereof, the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 1 contract
Samples: Indenture (CBD Media LLC)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, foreign, provincial or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree (to the extent required by such laws) that the obligations of such Guarantor will under its Note Guarantee and this Article Ten shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor (including any guarantee under the Credit Agreement) 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 Article 10Ten, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the conveyance. Each Guarantor that makes a payment for distribution under its Note Guarantee granted by any is entitled to a contribution from each other Guarantor which in a pro rata amount based on the adjusted net assets of each Guarantor. Each Guarantor that is incorporated incorporated, organized or formed, as the case may be, in or existing under the laws of the Grand Duchy of Luxembourg Belgium (each, a “Luxembourg Belgian Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor), shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss accountby its acceptance hereof, enforcing the law of 19 December 2002 on the register of commerce and companies each Holder and the accounting and annual accounts of undertakingsTrustee, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date hereby confirms that notwithstanding any other provision of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or any related agreements or certificates, the maximum aggregate liability hereunder of any such Belgian Guarantor will be limited so that the aggregate of such Belgian Guarantor’s liability hereunder plus all other liabilities (including conditional guarantees) of such Belgian Guarantor will not exceed its financial capacity or otherwise made available, to result in insolvency of such Luxembourg Belgian Guarantor or nor exceed any of its direct or indirect subsidiariesother limitation imposed by Belgian law.
Appears in 1 contract
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as will, after giving effect to 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything to the contrary, nothing in this Indenture may cause the aggregate amount of Sensor‑Nite NV’s liability with respect to all Indebtedness guaranteed by Sensor‑Nite NV at or prior to the Issue Date, including, without limitation, pursuant to this Indenture and its Note Guarantee, to exceed the greater of (i) 90% of Sensor‑Nite NV’s own funds (eigen vermogen/capitaux propres, as defined in Article 617 of the Belgian Companies Code) as derived from its latest audited financial statements available at the time any demand for payment is made and (ii) $40 million.
(c) Notwithstanding anything to the contrary in this Indenture (including in particular this Article 10) and the Notes, the obligations and liabilities of any Guarantor of the Notes incorporated in France (a “French Guarantor”) are subject to the limitations set out in this Section 10.02(c). The obligations and liabilities of any French Guarantor under this Indenture (including in particular this Article 10) and the Notes shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance within the meaning of article L. 225 216 of the French Commercial Code and/or would constitute a misuse of corporate assets within the meaning of articles L. 241 3, L. 242 6 or L. 244 1 of the French Commercial Code or any other laws or regulations having the same effect, as interpreted by French courts. The obligations and liabilities of any French Guarantor under this Indenture (including in particular this Article 10) and the Notes for the Company’s obligations under this Indenture and the Notes shall be limited, at any time, to an amount equal to the aggregate of all amounts made available under the Notes and the Indenture to the Company to the extent directly or indirectly on lent to such French Guarantor and/or its direct and indirect Subsidiaries under intercompany loan agreements (excluding, for the avoidance of doubt, any cash pooling arrangements or other cash management agreements, provided that the proceeds of the Notes shall not be used, in whole or in part, to finance, directly or indirectly, such cash pooling arrangements or other cash management agreements) and outstanding at the date a payment is to be made by such French Guarantor under this Indenture (including in particular this Article 10) and the Notes, it being specified that any payment made by a French Guarantor under this Indenture (including in particular this Article 10) and the Notes in respect of the Company’s obligations shall reduce pro tanto the outstanding amount of the intercompany loans due by such French Guarantor or its relevant direct or indirect Subsidiary under the intercompany loan agreements referred to above and that any repayment of the intercompany loans by such French Guarantor or its relevant direct or indirect Subsidiary shall reduce pro tanto the amount payable by such French Guarantor under this Indenture (including in particular this Article 10) and the Notes. It is acknowledged that no French Guarantor is acting jointly and severally with the other Guarantors and no French Guarantor shall therefore be considered as “co débiteur solidaire” as to its obligations pursuant to the guarantee given pursuant to this Indenture (including in particular this Article 10) and the Notes.
(d) Notwithstanding anything herein to the contrary, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of to guarantee the obligations thereunder of (i) the Issuer Company and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content article 34 of the presentation of the balance sheet and profit and loss account, enforcing the Luxembourg law of dated 19 December 2002 on relating to the register Register of commerce Commerce and companies and Companies as well as the accounting and the annual accounts of undertakingscompanies, as amended (“Annex I”) amended) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex Iarticle 34 of the Luxembourg law dated 19 December 2002 relating to the Register of Commerce and Companies as well as the accounting and the annual accounts of companies, as amended) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 1 contract
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor will under its Guarantee and this Article 13 shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor (including, without limitation, its guarantee of amounts payable under the 2026 Notes) that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from from, or payments or deliveries made by or on behalf of of, any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee and this Article 1013, result in the obligations of such Guarantor under its Note Guarantee and this Article 13 not constituting a fraudulent transfer or conveyance under such laws. Each Guarantor that makes a payment or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the Note delivery under its Guarantee granted by any Guarantor which is incorporated shall be entitled upon satisfaction in or existing under the laws full of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) all Guarantee Obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture to a contribution from each other Guarantor which is not a direct or indirect subsidiary in an amount equal to such other Guarantor’s pro rata portion of such Luxembourg Guarantorpayment or delivery, shall be limited as the case may be, based on the respective net assets of all the Guarantors at any the time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment or delivery determined in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with GAAP.
Appears in 1 contract
Samples: Indenture (Western Digital Corp)
Limitation on Guarantor Liability. (a) Each Guarantor, and each Holder by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteeguarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor's liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the guarantee, but shall be limited to the maximum lesser of (a) the aggregate amount of the Company's Obligations under the Notes and this Indenture or (b) the amount, if any, which would not have (1) rendered the Guarantor "insolvent" (as willsuch term is defined in the Federal Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its guarantee with respect to the Notes was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of Existing Indebtedness immediately before such time; PROVIDED, HOWEVER, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the guarantee with respect to the Notes is the amount described in clause (a) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or Trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (b).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 10.2(a) hereof, the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 1 contract
Samples: Indenture (Medvest Holdings Corp)
Limitation on Guarantor Liability. (a) Each GuarantorTradeware, and by its acceptance of Notes, each Holder, hereby confirms confirm that it is the intention of all such parties that the this Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its this Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors Tradeware hereby irrevocably agree that the obligations of such each Guarantor will 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, 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 Article 10 of the Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture or this Article 10Supplemental Indenture, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee shall be entitled upon payment in full of all guaranteed obligations under the contraryIndenture, the Note Guarantee granted by any First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture or this Supplemental Indenture to a contribution from each other Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg an amount equal to such other Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary ’s pro rata portion of such Luxembourg Guarantor, shall be limited payment based on the respective net assets of all the Guarantors at any the time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment determined in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with GAAP.
Appears in 1 contract
Samples: Fourth Supplemental Indenture (SS&C Technologies Holdings Inc)
Limitation on Guarantor Liability. (a) This Section 12.02(a) shall apply to any guarantee (hereafter a “United States Guarantee”) which is granted by any Guarantor incorporated under the laws of the United States of America or any State or territory thereof (a “US Guarantor”). Each Guarantor, Guarantor and each Holder (by its acceptance of Notes, each Holder, the benefits of the Guarantee in this Article 12) hereby confirms that it is the its intention of all such parties that the Note this Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of the Bankruptcy LawCode, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or of any similar federal, Federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteelaw. To effectuate the foregoing intention, each Guarantor and each Holder (by its acceptance of the Trustee, benefits of the Holders and the Guarantors Guarantee in this Article 12) hereby irrevocably agree agrees that the obligations of Guaranteed Obligations guaranteed by such Guarantor will shall be limited to the maximum such amount as will, after giving effect to such maximum amount and all other (contingent and fixed or otherwise) liabilities of such Guarantor that are relevant under such laws, laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf pursuant to any agreement providing for an equitable contribution among such Guarantor and the other Guarantors, result in the Guaranteed Obligations of any other such Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its Note Guarantee maximum amount not constituting a fraudulent transfer or conveyance or such an unlawful distributionconveyance.
(b) Notwithstanding anything herein (i) The restrictions in this Section 12.02(b) shall apply to any guarantee and indemnity (hereinafter the contrary, the Note Guarantee “German Guarantee”) granted by any a Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg Germany as a limited liability company (each, “GmbH”) (a “Luxembourg German Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any secure liabilities of its direct or indirect subsidiariesshareholder(s) (upstream) or an entity affiliated with such shareholder (verbundenes Unternehmen) within the meaning of section 15 et seq. of the German Stock Corporation Act (Aktiengesetz) (cross-stream) (excluding, for the avoidance of doubt purposes any direct or indirect Subsidiary of such Guarantor). It is understood and agreed that the limitations set forth in this Section 12.02(b) shall also apply to any German Guarantor’s obligations under the Guarantee to repay any amounts owed under Sections 12.04 which are not attributable to such German Guarantor.
Appears in 1 contract
Samples: Indenture (Toys R Us Inc)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee guarantee of such Guarantor not constitute (i) a fraudulent transfer or -89- conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor’s liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the guarantee, but shall be limited to the maximum lesser of (a) the aggregate amount of the Company’s obligations under the Notes and this Indenture or (b) the amount, if any, which would not have (1) rendered the Guarantor “insolvent” (as willsuch term is defined in the Federal Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its Guarantee with respect to the Notes was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of existing debt immediately before such time; provided, however, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the Guarantee with respect to the Notes is the amount described in clause (a) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (b).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 10.02(a), the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and reimbursement from the Company, and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 1 contract
Limitation on Guarantor Liability. (a) Each GuarantorGuarantor and, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor’s liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the Note Guarantee, but shall be limited to the maximum lesser of (a) the aggregate amount of the Company’s obligations under the Notes and this Indenture or (b) the amount, if any, which would not have (1) rendered the Guarantor “insolvent” (as willsuch term is defined in the Federal Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its Note Guarantee was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of existing Indebtedness immediately before such time; provided, however, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the Note Guarantee is the amount described in clause (a) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or Trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (b).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 10.02(a), the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 1 contract
Samples: Indenture (ClubCorp Holdings, Inc.)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as will, after giving effect to 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything to the contrary, nothing in this Indenture may cause the aggregate amount of Sensor‑Nite NV’s liability with respect to all Indebtedness guaranteed by Sensor‑Nite NV at or prior to the Issue Date, including, without limitation, pursuant to this Indenture and its Note Guarantee, to exceed the greater of (i) 90% of Sensor‑Nite NV’s own funds (eigen vermogen/capitaux propres, as defined in Article 617 of the Belgian Companies Code) as derived from its latest audited financial statements available at the time any demand for payment is made and (ii) $40 million.
(c) Notwithstanding anything to the contrary in this Indenture (including in particular this Article 10) and the Notes, the obligations and liabilities of any Guarantor of the Notes incorporated in France (a “French Guarantor”) are subject to the limitations set out in this Section 10.02(c). The obligations and liabilities of any French Guarantor under this Indenture (including in particular this Article 10) and the Notes shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance within the meaning of article L. 225 216 of the French Commercial Code and/or would constitute a misuse of corporate assets within the meaning of articles L. 241 3, L. 242 6 or L. 244 1 of the French Commercial Code or any other laws or regulations having the same effect, as interpreted by French courts. The obligations and liabilities of any French Guarantor under this Indenture (including in particular this Article 10) and the Notes for the Issuer’s obligations under this Indenture and the Notes shall be limited, at any time, to an amount equal to the aggregate of all amounts made available under the Notes and the Indenture to the Issuer to the extent directly or indirectly on lent to such French Guarantor and/or its direct and indirect Subsidiaries under intercompany loan agreements (excluding, for the avoidance of doubt, any cash pooling arrangements or other cash management agreements, provided that the proceeds of the Notes shall not be used, in whole or in part, to finance, directly or indirectly, such cash pooling arrangements or other cash management agreements) and outstanding at the date a payment is to be made by such French Guarantor under this Indenture (including in particular this Article 10) and the Notes, it being specified that any payment made by a French Guarantor under this Indenture (including in particular this Article 10) and the Notes in respect of the Issuer’s obligations shall reduce pro tanto the outstanding amount of the intercompany loans due by such French Guarantor or its relevant direct or indirect Subsidiary under the intercompany loan agreements referred to above and that any repayment of the intercompany loans by such French Guarantor or its relevant direct or indirect Subsidiary shall reduce pro tanto the amount payable by such French Guarantor under this Indenture (including in particular this Article 10) and the Notes. It is acknowledged that no French Guarantor is acting jointly and severally with the other Guarantors and no French Guarantor shall therefore be considered as “co débiteur solidaire” as to its obligations pursuant to the guarantee given pursuant to this Indenture (including in particular this Article 10) and the Notes.
(d) Notwithstanding anything herein to the contrary, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of to guarantee the obligations thereunder of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content article 34 of the presentation of the balance sheet and profit and loss account, enforcing the Luxembourg law of dated 19 December 2002 on relating to the register Register of commerce Commerce and companies and Companies as well as the accounting and the annual accounts of undertakingscompanies, as amended (“Annex I”) amended) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex Iarticle 34 of the Luxembourg law dated 19 December 2002 relating to the Register of Commerce and Companies as well as the accounting and the annual accounts of companies, as amended) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 1 contract
Limitation on Guarantor Liability. Subject to this Article 10, each of (ai) Each Guarantorthe Guarantors and (ii) any other Guarantors from time to time, upon the execution and delivery of any other supplemental indenture to this Indenture, and, by its acceptance of Senior Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Subsidiary Guarantor will 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 Subsidiary Guarantor that are relevant under such laws, 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 Article 10, result in the obligations of such Subsidiary Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee granted by any Guarantor which is incorporated shall be entitled upon payment in or existing under the laws full of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) all guaranteed Obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture to a contribution from each other Guarantor which is not a direct or indirect subsidiary in an amount equal to such other Guarantor’s pro rata portion of such Luxembourg Guarantor, shall be limited payment based on the respective net assets of all the Guarantors at any the time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment determined in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with GAAP.
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Limitation on Guarantor Liability. (a) Each Any term or provision of this Indenture to the contrary notwithstanding, the maximum, aggregate amount of the Guaranteed Obligations guaranteed hereunder by any Guarantor shall not exceed the maximum amount that can be hereby guaranteed without rendering this Indenture, as it relates to such Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or conveyance for purposes similar laws affecting the rights of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as will, after giving effect to 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributioncreditors generally.
(b) Notwithstanding anything herein A Guarantee as to the contrary, the Note Guarantee granted by any Guarantor which is incorporated in shall terminate and be of no further force or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) effect and such Guarantor shall be deemed to be released from all obligations under this Section 10.02 that provides for the Guarantee of the obligations of Article Ten (i) in the Issuer and/or event that such Guarantor no longer has outstanding, other than the Guarantee, any Indebtedness (in the case of a Domestic Restricted Subsidiary) or Material Indebtedness (in the case of a Foreign Restricted Subsidiary) or (ii) upon (x) the merger or consolidation of such Guarantor with or into any Person other than the Company or a Subsidiary or Affiliate of the Company where such Guarantor which is not a direct or indirect subsidiary the surviving entity of such Luxembourg consolidation or merger or (y) the sale by the Company or any Subsidiary of the Company (or any pledgee of the Company) of a majority of the Capital Stock of such Guarantor, shall be limited at any time to an aggregate amount not exceeding where, after such sale, such Guarantor is no longer a Subsidiary of the higher of:
Company; provided, however, that each such merger, consolidation or 103 sale (i) 90% or, in the case of a sale by such a pledgee, the disposition of the proceeds of such Luxembourg Guarantor’s capitaux propres sale) shall comply with Section 4.11 and subordinated debt (all as referred to in annex I to Section 5.01(b). At the Grand Ducal Regulation dated 18 December 2015 setting out the form and content written request of the presentation of Company, the balance sheet Trustee shall execute and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under deliver an appropriate instrument evidencing such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesrelease.
Appears in 1 contract
Samples: Indenture (Dutchess County Cellular Telephone Co Inc)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteeguarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor’s liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the guarantee, but shall be limited to the maximum lesser of (a) the aggregate amount of the Company’s obligations under the Notes and this Indenture or (b) the amount, if any, which would not have (1) rendered the Guarantor “insolvent” (as willsuch term is defined in Bankruptcy Law and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its guarantee with respect to the Notes was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of existing Debt immediately before such time; provided, however, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the guarantee with respect to the Notes is the amount described in clause (a) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or Trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (b).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with this Section 10.02, the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
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Limitation on Guarantor Liability. (a) Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Subsidiary Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act, the Uniform Voidable Transactions Act or any similar federal, U.S. federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Collateral Agent, the Holders and the Subsidiary Guarantors hereby irrevocably agree that the obligations of such each Subsidiary Guarantor will 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 Subsidiary Guarantor that are relevant under such laws, laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under this Article 1018, result in the obligations of such Subsidiary Guarantor under its Note Guarantee not constituting a fraudulent conveyance, fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein voidable transaction under applicable law. Each Subsidiary Guarantor that makes a payment under its Note Guarantee shall, to the contraryfullest extent permitted by applicable law, the be entitled upon payment in full of all Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture to a contribution from each other Subsidiary Guarantor which is not a direct or indirect subsidiary in an amount equal to such other Subsidiary Guarantor’s pro rata portion of such Luxembourg Guarantor, shall be limited payment based on the respective net assets of all the Subsidiary Guarantors at any the time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment determined in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with U.S. GAAP.
Appears in 1 contract
Samples: Indenture (Liveperson Inc)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Security Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Debtor Relief Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federalU.S. federal or state law or law of such Guarantor’s jurisdiction of organization (which shall be Irish law, state or foreign law in the case of Actavis plc and Bermuda law, in the case of Xxxxxx Xxxxxxxx Limited) to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Security Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor will 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, 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 Article 1012, result in the obligations of such Guarantor under its Note Security Guarantee not constituting a fraudulent transfer or conveyance or fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Security Guarantee shall be entitled upon payment in full of all Security Guarantee obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such an unlawful distributionother Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
(b) Notwithstanding anything herein to the contrarycontrary in Section 12.01, the Note Guarantee granted by obligations under Section 12.01 of Actavis plc and any other Guarantor which is incorporated in Ireland shall be deemed not to be undertaken or existing under incurred to the laws extent that the same would (but for this Section 12.02(b)) (1) constitute unlawful financial assistance prohibited by Section 60 of the Grand Duchy Companies Xxx 0000 of Luxembourg Ireland or (each, 2) constitute a “Luxembourg Guarantor”) under this breach of Section 10.02 that provides for the Guarantee 31 of the obligations Companies Xxx 0000 of (i) Ireland. For the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary avoidance of such Luxembourg Guarantordoubt, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content extent that such indemnities, guarantees, obligations, liabilities or undertakings have been validated under Section 60(2) to (11) of the presentation Companies Xxx 0000 of Ireland, they shall not constitute unlawful financial assistance under Section 60 of the balance sheet and profit and loss account, enforcing the law Companies Xxx 0000 of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesIreland.
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Limitation on Guarantor Liability. (a) Each Any term or provision of this Indenture to the contrary notwithstanding, the maximum aggregate amount of the Guaranteed Obligations guaranteed hereunder by any Guarantor shall not exceed the maximum amount that can be hereby guaranteed by the applicable Guarantor without rendering this Indenture or the Guarantee, as each relates to such Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or conveyance for purposes similar laws affecting the rights of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as will, after giving effect to 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributioncreditors generally.
(b) Notwithstanding anything herein A Guarantee as to the contrary, the Note Guarantee granted by any Guarantor which is incorporated in shall automatically terminate and be of no further force or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) effect and such Guarantor shall be deemed to be unconditionally released and discharged from all obligations under this Section 10.02 that provides for Article 11 upon the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time earliest to an aggregate amount not exceeding the higher occur of:
(i) 90% except in the case of Holdings, the sale, disposition or other transfer (including through merger, dissolution or consolidation) of the Capital Stock of such Luxembourg Guarantor to a Person other than Holdings, the Issuer or a Restricted Subsidiary if after such sale, disposition or other transfer, such Guarantor is no longer a Restricted Subsidiary, or the sale, disposition or other transfer of all or substantially all the assets of such Guarantor’s capitaux propres and subordinated debt (all as referred to , in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss accounteach case, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakingsif such sale, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand disposition or other transfer is made under such Luxembourg Guarantor’s Note Guarantee; andin compliance with this Indenture,
(ii) 90% the Issuer designating such Guarantor as, or such Guarantor becoming (in each case other than Holdings), (x) an Unrestricted Subsidiary in accordance with the provisions set forth under Section 4.04 and the definition of “Unrestricted Subsidiary” or (y) an Excluded Subsidiary in accordance with the definition of “Excluded Subsidiary”,
(iii) (x) in the case of any Restricted Subsidiary that is required to guarantee the Notes pursuant to Section 4.10, the release or discharge of the obligation by such Restricted Subsidiary of Indebtedness of the Issuer or any Restricted Subsidiary or the repayment of the Indebtedness or Disqualified Stock, in each case, which resulted in the obligation to guarantee the Notes, except if a release or discharge is by or as a result of payment in connection with the enforcement of remedies under such other obligation and a Default or Event of Default would occur thereby and (y) in the case of any Guarantee that is provided in accordance with the last sentence of the last paragraph of the definition of “Excluded Subsidiary,” in accordance with the terms of such Luxembourg Guarantordefinition,
(iv) the Issuer’s capitaux propres and subordinated debt (all exercise of its legal defeasance option or covenant defeasance option as referred to described under Section 8.01 or if the Issuer’s obligations under this Indenture are discharged in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on accordance with the date terms of this Indenture. The above limitation shall not apply ,
(v) the merger or consolidation of such Guarantor with and into the Issuer or another Guarantor that is the surviving Person in such merger or consolidation, or upon the liquidation or dissolution of such Guarantor following the transfer of all or substantially all of its assets to any proceeds the Issuer or another Guarantor,
(vi) as described under Article 9 in accordance with the provisions of the offering Intercreditor Agreement or any Acceptable Intercreditor Agreement, or
(vii) except in the case of Holdings, upon the release or discharge of all other Guarantees by such Guarantor of Indebtedness of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor Issuer or any other Guarantor, other than in the case of its direct or indirect subsidiariesthe repayment in full of such Indebtedness.
Appears in 1 contract
Samples: Indenture (At Home Group Inc.)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteeguarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor’s liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the guarantee, but shall be limited to the maximum lesser of (a) the aggregate amount of the Company’s obligations under the Notes and this Indenture or (b) the amount, if any, which would not have (1) rendered the Guarantor “insolvent” (as willsuch term is defined in the Federal Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its guarantee with respect to the Notes was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of existing Indebtedness immediately before such time; provided, however, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the guarantee with respect to the Notes is the amount described in clause (a) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or Trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (b).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 10.2(a), the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 1 contract
Samples: Indenture (GNLV Corp)
Limitation on Guarantor Liability. (a) Each GuarantorNotwithstanding any other provisions of this Indenture, the obligations of each Guarantor under its Guarantee shall be limited under the relevant laws applicable to such Guarantor and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee granting of such Guarantor not constitute Guarantee (i) a including laws relating to corporate benefit, capital preservation, financial assistance, fraudulent transfer conveyances and transfers, voidable preferences or conveyance for purposes of Bankruptcy Lawtransactions under value); provided that, with respect to each jurisdiction described below, such obligations shall be limited in the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act manner described below or in any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteesupplemental indenture. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as that will, after giving notice to the Trustee of such maximum amount and 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 Article 1011, result in the obligations of such Guarantor under its Note Guarantee not conflicting with the principles of corporate benefit or capital preservation or constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contraryconveyance, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (eachfraudulent transfer, voidable preference, a “Luxembourg Guarantor”) transaction under this Section 10.02 that provides for value or unlawful financial assistance, or other similar laws affecting the Guarantee rights of the creditors generally; provided that, with respect to each jurisdiction described below, such obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at in the manner described below or in any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariessupplemental indenture.
Appears in 1 contract
Samples: Indenture (Twist Beauty S.a r.l. & Partners S.C.A.)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent conveyance or a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor will 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, 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee will be entitled upon payment in full of all Guaranteed Obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such an unlawful distributionother Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment, determined in accordance with GAAP.
(b) Notwithstanding anything herein any provision to the contrarycontrary herein, the obligations of SWM Luxembourg in respect of the Guaranteed Obligations under the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time time, with no double counting, to an aggregate amount not exceeding the higher of:
(i) 90% ninety-five per cent (95%) of such Luxembourg Guarantorthe sum of SWM Luxembourg’s own funds (capitaux propres and subordinated debt propres) (all as referred to in annex I to Schedule 1 of the Grand Ducal Luxembourg Regulation dated 18 December 2015 setting out defining the form and the content of the presentation of the balance sheet and profit and loss account, enforcing account layouts and implementing among others article 34 of the law Luxembourg Act of 19 December 2002 on the register Register of commerce Commerce and companies and the Companies, on accounting and on annual accounts of undertakingsthe companies, as amended amended) and SWM Luxembourg’s debt which is subordinated in right of payment (“Annex I”whether generally or specifically) ) to any claim of any Holder, as reflected determined in its last annual accounts (approved good faith by a shareholders’ meeting) available on the Company, as at the date on which a demand is made under such Luxembourg Guarantor’s of this Note Guarantee; and
(ii) 90% ninety-five per cent (95%) of such Luxembourg Guarantorthe sum of SWM Luxembourg’s own funds (capitaux propres and subordinated debt propres) (all as referred to in Annex I) as reflected in its last Schedule 1 of the Luxembourg Regulation dated 18 December 2015 defining the form and the content of the balance sheet and profit and loss account layouts and implementing among others article 34 of the Luxembourg Act of 19 December 2002 on the Register of Commerce and Companies, on accounting and on annual accounts of the companies, as amended) and SWM Luxembourg’s debt which is subordinated in right of payment (approved whether generally or specifically) to any claim of any Holder, as determined in good faith by a shareholders’ meeting) available the Company, as on the date of this Indenturepayment of the Note Guarantee hereunder. The above limitation shall not apply to any the proceeds of the offering issue of the Notes on-lentdirectly or indirectly transferred to, or otherwise made availableincurred for, to such the benefit of SWM Luxembourg Guarantor or any of its (current or future) direct or indirect subsidiariesSubsidiaries.
Appears in 1 contract
Samples: Senior Notes Indenture (Schweitzer Mauduit International Inc)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteeguarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor’s liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the guarantee, but shall be limited to the maximum lesser of (a) the aggregate amount of the Issuers’ obligations under the Notes and this Indenture or (b) the amount, if any, which would not have (1) rendered the Guarantor “insolvent” (as willsuch term is defined in the Federal Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its guarantee with respect to the Notes was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of existing Indebtedness immediately before such time; provided, however, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the guarantee with respect to the Notes is the amount described in clause (a) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or Trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (b).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 10.2(a), the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 1 contract
Samples: Indenture (Trump Entertainment Resorts Holdings Lp)
Limitation on Guarantor Liability. (a) Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Subsidiary Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, foreign or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Subsidiary Guarantors hereby irrevocably agree that the obligations of such Subsidiary Guarantor will under its Note Guarantee and this Article XI shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor (including any guarantees permitted under the Credit Agreement) 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 Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under its Note Guarantee or pursuant to its contribution obligations under this Article 10XI, result in the obligations of such Subsidiary Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the conveyance. Each Subsidiary Guarantor that makes a payment for distribution under its Note Guarantee granted by any will be entitled to a contribution from each other Subsidiary Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate pro rata amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 based on the register adjusted net assets of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg each Subsidiary Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 1 contract
Samples: Indenture (Ply Gem Holdings Inc)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent conveyance or a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federalfederal or state law or abuse of corporate assets or similar laws affecting the rights of creditors generally, state or foreign law including laws relating to the liability of directors and managers, in each case to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor will 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, 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee granted by any Guarantor which is incorporated will be entitled upon payment in or existing under the laws full of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) all Guaranteed Obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture to a contribution from each other Guarantor which is not a direct or indirect subsidiary in an amount equal to such other Guarantor’s pro rata portion of such Luxembourg Guarantor, shall be limited payment based on the respective net assets of all the Guarantors at any the time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment, determined in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with GAAP.
Appears in 1 contract
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteeguarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor’s liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the guarantee, but shall be limited to the maximum lesser of (a) the aggregate amount of the Company’s obligations under the Notes and this Indenture or (b) the amount, if any, which would not have (1) rendered the Guarantor “insolvent” (as willsuch term is defined in the Federal Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its guarantee with respect to the Notes was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of existing Debt immediately before such time; provided, however, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the guarantee with respect to the Notes is the amount described in clause (a) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (b) below.
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 10.02(a), the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 1 contract
Samples: Indenture (Centene Corp)
Limitation on Guarantor Liability. (a) Each US Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such US Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting shareholder distributions by an insolvent entity subsidiary to the extent applicable to its Note Guarantee. Each UK Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such UK Guarantor not constitute a transaction at an undervalue or preference under the Insolvency Act of 1986. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will 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 Article 10Ten, result in the obligations of such Guarantor under its Note Guarantee not constituting constituting, in the case of the US Guarantors, a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to shareholder distribution or, in the contrary, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws case of the Grand Duchy of Luxembourg (eachUK Guarantors, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct transaction at an undervalue or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariespreference.
Appears in 1 contract
Samples: Indenture (Solo Cup CO)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance Notwithstanding any other provisions of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Lawthis Indenture, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to obligations of each Guarantor under its Note Guarantee or (ii) an unlawful distribution shall be limited under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent relevant laws applicable to its such Guarantor and the granting of such Note GuaranteeGuarantees (including laws relating to corporate benefit, capital preservation, financial assistance, fraudulent conveyances and transfers, voidable preferences or transactions under value), provided that, with respect to each jurisdiction described below, such obligations shall be limited in the manner described below or in any supplemental indenture. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as that will, after giving notice to the Trustee of such maximum amount and 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 Article 1011, result in the obligations of such Guarantor under its Note Guarantee not conflicting with the principles of corporate benefit or capital preservation or constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contraryconveyance, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (eachfraudulent transfer, voidable preference, a “Luxembourg Guarantor”) transaction under this Section 10.02 that provides for value or unlawful financial assistance, or other similar laws affecting the Guarantee rights of the creditors generally, provided that, with respect to each jurisdiction described below, such obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at in the manner described below or in any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariessupplemental indenture.
Appears in 1 contract
Limitation on Guarantor Liability. (a) Each GuarantorGuarantor and, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor’s liability will be that amount from time to time equal to the obligations aggregate liability of such Guarantor under the Note Guarantee, but will be limited to the maximum lesser of (a) the aggregate amount of the Company’s obligations under the Notes and this Indenture or (b) the amount, if any, which would not have (1) rendered the Guarantor “insolvent” (as willsuch term is defined in the Federal Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its Note Guarantee was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of existing Indebtedness immediately before such time; provided, however, it will be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the Note Guarantee is the amount described in clause (a) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or Trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (b).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 10.02(a), the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (eachotherwise, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall will be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 1 contract
Samples: Indenture (Xerium Technologies Inc)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or any Guarantee, and with respect to any Guarantor organized under the laws of Malaysia, the amount of the obligations guaranteed by such Guarantor (iiand the value of any assets provided by such Guarantor as security for such obligations) an unlawful distribution under shall be in, but not in excess of, the maximum amount permitted by any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent Legal Requirement applicable to its Note Guarantee. To effectuate the foregoing intentionsuch Guarantor, including, but not limited to, the TrusteeMalaysian Financial Services Act of 2013, the Holders as amended, and the Guarantors hereby irrevocably agree that the any rules, regulations, or rulings promulgated by Bank Negara Malaysia (or any successor central bank of Malaysia). The obligations of such each Guarantor under its Guarantee will be limited to the maximum amount as will, after giving effect to 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 its Guarantee or pursuant to its contribution obligations under this Article 10Indenture, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to fraudulent transfer under federal or state or foreign law and not otherwise being void or voidable under any similar laws affecting the contraryrights of creditors generally. Each Guarantor that makes a payment under its Guarantee shall be entitled, the Note Guarantee granted by any Guarantor which is incorporated upon payment in or existing under the laws full of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) all guaranteed Obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture, to seek contribution from each other Guarantor which is not a direct or indirect subsidiary in an amount equal to such other Guarantor’s pro rata portion of such Luxembourg Guarantor, shall be limited payment based on the respective net assets of all Guarantors at any the time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment determined in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with GAAP.
Appears in 1 contract
Limitation on Guarantor Liability. (a) Each It is the intent of each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy LawLenders, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders Collateral Agent and the Guarantors hereby irrevocably agree Administrative Agent that the obligations of such Guarantor will each Guarantor's maximum liability hereunder shall not be limited to the maximum amount as will, after giving effect to 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher excess of:
(i) 90% of in a Proceeding (as defined below) commenced by or against such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to Guarantor under the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss accountBankruptcy Code, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on or within one year from the date on which a demand is made any of such Guarantor's obligations hereunder are incurred, the maximum amount which would not otherwise cause such Guarantor's obligations hereunder to be avoidable or unenforceable against such Guarantor under (A) Section 548 of the Bankruptcy Code, or (B) any state fraudulent transfer or fraudulent conveyance act or statute applied in such Luxembourg Guarantor’s Note Guaranteecase or proceeding by virtue of Section 544 of the Bankruptcy Code; andor
(ii) 90% in a Proceeding commenced by or against such Guarantor under the Bankruptcy Code subsequent to one year from the date on which any of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred 's obligations hereunder are incurred, the maximum amount which would not otherwise cause such Guarantor's obligations to be avoidable or unenforceable against such Guarantor under any state fraudulent transfer or fraudulent conveyance act or statute applied in Annex I) as reflected in its last annual accounts (approved any such case or proceeding by a shareholders’ meeting) available on the date virtue of this Indenture. The above limitation shall not apply to any proceeds Section 544 of the offering Bankruptcy Code; or
(iii) in a Proceeding commenced by or against such Guarantor under any law, statute or regulation other than the Bankruptcy Code (including, without limitation, any other bankruptcy, reorganization, arrangement, moratorium, readjustment of debt, dissolution, liquidation or similar debtor relief laws), the Notes on-lentmaximum amount which would not otherwise cause such Guarantor's obligations hereunder to be avoidable or unenforceable against such Guarantor under such law, statute or otherwise made availableregulation, to including, without limitation, any state fraudulent transfer or fraudulent conveyance act or statute applied in any such Luxembourg Guarantor case or any of its direct or indirect subsidiariesproceeding.
Appears in 1 contract
Samples: u.s. Revolving Credit Agreement (Ems Technologies Inc)
Limitation on Guarantor Liability. (a) Each Guarantor, Guarantor and by its acceptance of Notes, each Holder, the Lenders hereby confirms confirm that it is the intention of all such parties that the Note Guarantee Guaranty of such Guarantor not constitute (i) a fraudulent transfer or conveyance fraudulent conveyance, or similar limitation, for purposes of the Bankruptcy LawCode, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note GuaranteeGuaranty. To effectuate the foregoing intention, upon execution of the TrusteeJoinder Agreement, the Holders each Guarantor and the Guarantors hereby Lenders irrevocably agree that the obligations of such each Guarantor will shall be limited to the maximum amount as willshall, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, laws and after giving effect to any collections from, from the 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 Article 10Agreement, result in the obligations of such Guarantor under its Note Guarantee Guaranty not constituting a fraudulent transfer or conveyance fraudulent conveyance, or such an unlawful distribution.
(b) similar limitation, under applicable law. Notwithstanding anything herein to the contrarycontrary contained in this Agreement, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws upon execution of the Grand Duchy Joinder Agreement, each Guarantor hereby unconditionally and irrevocably waives, releases and abrogates any and all rights it may now or hereafter have under any agreement, at law or in equity (including without limitation any law subrogating the Guarantor to the rights of Luxembourg (eachthe Lenders), a “Luxembourg Guarantor”) to assert any claim against or seek contribution, indemnification or any other form of reimbursement from the Borrower or any other Loan Party liable for payment of any or all of the Obligations for any payment made by the Guarantor under or in connection with its Guaranty or otherwise until such time as all Obligations are paid in full under this Agreement and this Agreement has been terminated in accordance with Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiarieshereof.
Appears in 1 contract
Samples: Debtor in Possession Loan and Security Agreement (Novation Companies, Inc.)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for For purposes of Bankruptcy Lawhereof, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law Guarantor’s liability shall be that amount from time to time equal to the extent applicable to its Note Guarantee or (ii) an unlawful distribution aggregate liability of the Guarantor under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will but shall be limited to the maximum lesser of (a) the aggregate amount of the Agreement Obligations of the Company and (b) the amount, if any, which would not have (A) rendered the Guarantor “insolvent” (as willsuch term is defined in the federal Bankruptcy Law and in the Debtor and Creditor Law of the State of New York), (B) left it with unreasonably small capital at the time its Note Guarantee was entered into, or at the time the Guarantor incurred liability thereunder, after giving effect to all the incurrence of existing Indebtedness immediately prior to such time or (C) left the Guarantor with debts beyond the Guarantor’s ability to pay as such debts mature; provided that, it shall be a presumption in any lawsuit or other contingent and fixed liabilities of such proceeding in which the Guarantor is a party that are relevant under such laws, and after giving effect the amount Guaranteed pursuant 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting is the amount set forth in subsection (a) above unless any creditor, or representative of creditors of the Guarantor, or debtor in possession or trustee in bankruptcy of the Guarantor, otherwise proves in such a fraudulent transfer lawsuit or conveyance or such an unlawful distribution.
other proceeding that the aggregate liability of the Guarantor is limited to the amount set forth in subsection (b) Notwithstanding anything herein above. Section 16.06 “Representative” to the contrary, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited Include Paying Agent. In case at any time any Paying Agent other than the Company shall have been appointed by the Company and be then acting hereunder, the term “Representative” as used in this Article 16 shall in such case (unless the context shall otherwise require) be construed as extending to an aggregate amount not exceeding the higher of:
(i) 90% of and including such Luxembourg Guarantor’s capitaux propres Paying Agent within its meaning as fully and subordinated debt (for all intents and purposes as referred to if such Paying Agent were named in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content this Article 16 in place of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesCompany.
Appears in 1 contract
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law in any jurisdiction to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteeguarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor’s liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the guarantee, but shall be limited to the maximum lesser of (a) the aggregate amount of the Company’s obligations under the Notes and this Indenture or (b) the amount, if any, which would not have (1) rendered the Guarantor “insolvent” (as willsuch term is defined in Bankruptcy Law and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its guarantee with respect to the Notes was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of existing Debt immediately before such time; provided, however, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the guarantee with respect to the Notes is the amount described in clause (a) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (b).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 9.02(a), the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 1 contract
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteeguarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor’s liability shall be that amount from time to time equal to the obligations aggregate liability of such Guarantor will under the guarantee, but shall be limited to the maximum lesser of (a) the aggregate amount of the Issuer’s obligations under the Notes and this Indenture or (b) the amount, if any, which would not have (1) rendered the Guarantor “insolvent” (as willsuch term is defined in the Federal Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its guarantee with respect to the Notes was entered into, after giving effect to all other contingent and fixed liabilities the incurrence of existing Debt immediately before such time; provided, however, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that are relevant under such lawsthe amount guaranteed pursuant to the guarantee with respect to the Notes is the amount described in clause (a) above unless any creditor, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf representative of any other Guarantor in respect creditors of the obligations Guarantor, or debtor in possession or Trustee in bankruptcy of such other the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor under this Article 10, result is limited to the amount described in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionclause (b).
(b) Notwithstanding anything herein In making any determination as to the contrarysolvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 10.02(a), the Note Guarantee granted by right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor which is incorporated in may have, contractual or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantorotherwise, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss taken into account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Appears in 1 contract
Samples: Indenture (Hli Operating Co Inc)
Limitation on Guarantor Liability. (a) Each Subject to paragraph (b) below, each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of applicable Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as that 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 Article 10XVI, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or conveyance. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that its Guarantee, and the waivers set forth herein, are knowingly made in contemplation of such an unlawful distributionbenefits.
(b) Notwithstanding anything herein If and to the contraryextent that a Swiss Guarantor becomes liable under or in connection with this Indenture for obligations of any other obligor (other than its wholly owned direct or indirect subsidiaries) and if complying with such obligation would constitute a repayment of capital (Einlagerückgewähr), the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws a violation of the Grand Duchy legally protected reserves (gesetzlich geschützte Reserven) or the payment of Luxembourg a constructive dividend (eachverdeckte Gewinnausschüttung) by such Swiss Guarantor or would otherwise be restricted under Swiss mandatory law or accounting principles then applicable (the “Restricted Obligations”), a such Swiss Guarantor’s liability will be limited to the amount of such Swiss Guarantor’s freely disposable equity in accordance with Swiss law and Swiss accounting principles (the “Luxembourg GuarantorSwiss Available Amount”) under ). The limitation in this Section 10.02 16.02(b) shall only apply to the extent that provides for it constitutes a requirement under Swiss mandatory legal and accounting principles at the Guarantee time a Swiss Guarantor is required to perform the Restricted Obligations. Such limitation will not free such Swiss Guarantor from its obligations in excess of the Swiss Available Amount, but will merely postpone the performance date thereof until such time(s) when such performance is again permitted from a Swiss legal and Swiss accounting point of view. If the enforcement of the obligations of a Swiss Guarantor would be limited due to the effects referred to in this Indenture, such Swiss Guarantor shall further, to the extent permitted by applicable law and accounting principles and upon request by the Holders, promptly (i) transfer statutory reserves into unrestricted, distributable reserves, (ii) write up or realize any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of realization, however, only if such assets are not necessary for such Swiss Guarantor’s business (nicht betriebsnotwendig) and such sale is permitted under this Indenture and (iii) take all other measures necessary or useful to allow the Holders to obtain the maximum benefit under this guarantee. Such Swiss Guarantor shall, and any holding company of such Swiss Guarantor that is a party to this Indenture shall procure that such Swiss Guarantor shall, take and cause to be taken all and any action as soon as reasonably practicable but in any event within 40 days from the request of the Holders, including (i) the Issuer and/or passing of any shareholders’ resolutions to approve any payment or other performance under this Indenture, (ii) any the provision of an up-to-date audited interim balance sheet, (iii) the provision of a determination by such Swiss Guarantor which is not of the Swiss Available Amount based on such audited interim balance sheet, (iv) the provision of a direct or indirect subsidiary confirmation from the auditors of such Luxembourg Swiss Guarantor that the payment in an amount corresponding to the Swiss Available Amount or the performance of other obligations is in compliance with the provisions of Swiss corporate law that are aimed at protecting the share capital and legal reserves and (v) the obtaining of any other confirmations which may be necessary or useful as a matter of Swiss mandatory law in force at the time of enforcement, in order to allow a prompt payment or performance of other obligations with a minimum of limitations. If Swiss Withholding Tax is required to be deducted from any payment under this Indenture, including but not limited to, any guarantee payment and any payment of proceeds of any enforcement under applicable law at the time of enforcement, the relevant Swiss Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% shall use its best efforts to ensure that the proceeds of any enforcement can be paid without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to such Luxembourg Guarantor’s capitaux propres and subordinated debt tax by notification pursuant to applicable law (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content including tax treaties) rather than payment of the presentation of tax (the balance sheet and profit and loss account, enforcing “Swiss Notification Procedure”);
(ii) shall deduct the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended Swiss Withholding Tax at such rate (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available being 35% on the date on which hereof) as in force from time to time if the Swiss Notification Procedure does not apply; or shall deduct the Swiss Withholding Tax at the reduced rate resulting after discharge of part of such tax by notification if the Swiss Notification Procedure applies for a demand is made under part of the Swiss Withholding Tax only; and shall pay within the time allowed any such Luxembourg Guarantor’s Note Guaranteetaxes deducted to the Swiss Federal Tax Administration; and
(iiiii) 90% shall promptly notify the respective beneficiary or beneficiaries that such notification or, as the case may be, deduction has been made, and provide the respective beneficiary or beneficiaries with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration. In the case of a deduction of Swiss Withholding Tax, the Swiss Guarantor shall use its best efforts to ensure that any person that is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment under this Indenture, will, as soon as possible after such deduction: request a refund of the Swiss Withholding Tax under applicable law (including tax treaties), and pay to the respective beneficiary or beneficiaries upon receipt any amount so refunded. The respective beneficiary or beneficiaries shall co-operate with the Swiss Guarantor to secure such refund. To the extent such a deduction is made, any Swiss Guarantor shall not hold harmless the beneficiary or the beneficiaries in relation to any such deduction. To the extent such Swiss Guarantor is required to deduct Swiss Withholding Tax pursuant to this Indenture, and if the Swiss Available Amount is not fully utilized, such Swiss Guarantor shall be required to pay, directly or by way of use of the proceeds of enforcement, an additional amount so that after making any required deduction of Swiss Withholding Tax the aggregate net amount paid to the beneficiary, directly or by way of use of the proceeds of enforcement, is equal to the amount which would have been paid if no deduction of Swiss Withholding Tax had been required. If a refund is made to a beneficiary, such beneficiary shall transfer the refund so received to the Swiss Guarantor, subject to any right of set-off of such Luxembourg Guarantor’s capitaux propres beneficiary pursuant to this Indenture and subordinated debt (all as referred subject to not being in Annex Ia less favorable net after-tax position than the beneficiary would have been in if the Swiss Withholding Tax had not been required in the first instance. For the avoidance of doubt, nothing in this Section 16.02(b) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date relating to Swiss Withholding Tax shall limit or reduce any obligation to pay Additional Amounts pursuant to any other provision of this Indenture. .
(c) The above limitation obligations and liabilities of the Spanish Guarantor under the Guarantee shall not apply extend to any proceeds obligations that would constitute unlawful financial assistance within the meaning of article 143.2 or 150, as applicable, of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesSpanish Companies Law.
Appears in 1 contract
Samples: Indenture (Quotient LTD)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor will 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, 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or fraudulent transfer under applicable law or to comply with corporate benefit, financial assistance and other laws. Each Guarantor that makes a payment under its Guarantee shall be entitled upon payment in full of all guaranteed obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such an unlawful distribution.
(b) Notwithstanding anything herein other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with IFRS. Each Guarantor shall waive any and all of its rights under the existing or future laws of Guernsey, whether by virtue of the droit de division or otherwise, to require that any liability under or in connection with this Indenture be divided or apportioned with any other person or reduced in any manner whatsoever, and whether by virtue of the droit de discussion or otherwise, to require that recourse be had to the contrary, the Note Guarantee granted by assets of any other person before any claim is enforced against it. The obligations of each Guarantor which is incorporated in or existing as a limited liability company under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, Norway shall be limited at any time subject to an aggregate amount not exceeding the higher offollowing limitations:
(i) 90% the obligations and liabilities of such Luxembourg Guarantor’s capitaux propres each Norwegian Guarantor under this Indenture shall be limited if and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out extent required by the form and content mandatory provisions of the presentation Norwegian Companies Act, including Sections 8-7 and 8-10 cf. Sections 1-3, regulating unlawful financial assistance and other restrictions on a Norwegian limited liability company’s ability to grant guarantees, loans or security interests (the “NCA Corporate Benefit Restrictions”). It is understood that the obligations and liabilities of each Norwegian Guarantor under this Indenture shall always be interpreted so as to make such Norwegian Guarantor liable to the balance sheet and profit and loss account, enforcing fullest extent permitted by the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; andNCA Corporate Benefit Restrictions.
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt the limitations set forth in (all as referred to in Annex Ii) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply apply, mutatis mutandis, to any proceeds of the offering of the Notes on-lentLien created by such Norwegian Guarantor under any security document and to any guarantee, or otherwise indemnity and payment made available, to by such Luxembourg Guarantor or any of its direct or indirect subsidiariesNorwegian Guarantor.
Appears in 1 contract
Samples: Indenture (Viasat Inc)
Limitation on Guarantor Liability. Subject to this Article 10, each of (ai) Each Guarantorthe Diamond Guarantors, (ii) from and after the consummation of the Acquisition and upon the execution and delivery of the Effective Date Supplemental Indenture, the RSN Guarantors and (iii) any other Guarantors from time to time, upon the execution and delivery of any other supplemental indenture to this Indenture, and, by its acceptance of Senior Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Subsidiary Guarantor will 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 Subsidiary Guarantor that are relevant under such laws, 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 Article 10, result in the obligations of such Subsidiary Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee granted by any Guarantor which is incorporated shall be entitled upon payment in or existing under the laws full of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) all guaranteed Obligations under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Indenture to a contribution from each other Guarantor which is not a direct or indirect subsidiary in an amount equal to such other Guarantor’s pro rata portion of such Luxembourg Guarantor, shall be limited payment based on the respective net assets of all the Guarantors at any the time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to payment determined in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesaccordance with GAAP.
Appears in 1 contract
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor will 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, 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee granted by any shall be entitled upon payment in full of all guaranteed Obligations under this Indenture to a contribution from each other Guarantor which is in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP. Any Note Guarantee of a Guarantor incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres England and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation Wales shall not apply to any proceeds the extent that it would result in such Note Guarantee constituting unlawful financial assistance within the meaning of sections 678 or 679 of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesCompanies Axx 0000.
Appears in 1 contract
Samples: Indenture (New Fortress Energy Inc.)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state law or similar foreign law for the relief of debtors to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors (including the Full Guarantors) hereby irrevocably agree that the obligations of such each Guarantor will shall be limited to an amount not to exceed 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, 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Guarantee shall be entitled upon payment in full of all guaranteed Obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such an unlawful distribution.
other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP (b) Notwithstanding anything herein but subject, in the case of each Limited Guarantor, to the contraryamount of its Limited Guarantee, with the Note Guarantee granted by any Guarantor which is incorporated Full Guarantors being obligated to make additional contributions, pro rata in or existing under accordance with the laws respective net assets of the Grand Duchy Full Guarantors at the time of Luxembourg (eachsuch payment determined in accordance with GAAP, a “Luxembourg Guarantor”) under this Section 10.02 that provides for to cover any shortfall in contributions resulting from the Guarantee limitations on the Limited Guarantees of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Limited Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries).
Appears in 1 contract
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as that 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to conveyance. To the contrary, the Note Guarantee granted extent required by any Guarantor which is incorporated in or existing under the laws Section 371.072 of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakingsTexas Finance Code, as amended (“Annex ITexas Pawnshop Act”) ) ), the Trustee, the Holders and the Guarantors hereby agree that the obligations under a Note Guarantee of any Guarantor subject to such provision of the Texas Pawnshop Act will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such provision of the Texas Pawnshop Act, 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not resulting in a violation of the requirement to maintain a minimum of net assets that are used or readily available for use in the business of such Guarantor pursuant to the Texas Pawnshop Act, which minimum net assets requirement is $150,000 per pawnshop license as reflected in its last annual accounts (approved by a shareholders’ meeting) available on of the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiarieshereof.
Appears in 1 contract
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such each Guarantor will 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, 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 Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b) Notwithstanding anything herein to the contrary, the fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee granted by any shall be entitled upon payment in full of all guaranteed Obligations under this Indenture to a contribution from each other Guarantor which is in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP. Any Note Guarantee of a Guarantor incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres England and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation Wales shall not apply to any proceeds the extent that it would result in such Note Guarantee constituting unlawful financial assistance within the meaning of sections 678 or 679 of the offering Companies Xxx 0000. Any Note Guarantee of a Guarantor incorporated under the laws of Ireland shall not apply to the extent that it would result in such Note Guarantee constituting financial assistance as prohibited by section 82 of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesIrish Companies Xxx 0000.
Appears in 1 contract
Samples: Indenture (New Fortress Energy Inc.)
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state law or foreign law to the extent applicable to its any Note Guarantee or Guarantee, and with respect to any Guarantor organized under the laws of Malaysia, the amount of the Note Obligations guaranteed by such Guarantor (iiand the value of any assets provided by such Guarantor as security for the Note Obligations) an unlawful distribution under shall be in, but not in excess of, the maximum amount permitted by any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent Legal Requirement applicable to its Note Guaranteesuch Guarantor, including, but not limited to, the Malaysian Financial Services Act of 2013, as amended, and any rules, regulations, or rulings promulgated by Bank Negara Malaysia (or any successor central bank of Malaysia). To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of each 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 Article 1011 to the extent relevant under such laws, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or being otherwise unenforceable under relevant law, and the amount of the Note Obligations guaranteed by a Guarantor organized under the laws of Malaysia (and the value of any assets provided by such Guarantor as security for such Note Obligations) shall be limited to an unlawful distributionaggregate amount equal to the largest amount that would not violate any Legal Requirement applicable to such Guarantor, including, but not limited to, the Malaysian Financial Services Act of 2013, as amended, and any rules, regulations, or rulings promulgated by Bank Negara Malaysia (or any successor central bank of Malaysia).
(b) Notwithstanding anything herein to the contrary, the Note Guarantee granted by any The liability of each Guarantor which is incorporated or established in or existing under the laws of the Grand Duchy of Luxembourg Poland (each, a “Luxembourg Polish Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) Indenture or any Guarantor other Indenture Document to which it is not a direct or indirect subsidiary of such Luxembourg Guarantorparty shall, shall in all circumstances, be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I equal to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesPolish Limitation Amount.
Appears in 1 contract
Limitation on Guarantor Liability. (a) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Subsidiary Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will shall be limited to the maximum amount as that 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 Article 10, result in the obligations of such Guarantor under its Note Subsidiary Guarantee not constituting a fraudulent transfer or conveyance conveyance. Notwithstanding any other provision of this Indenture, in no event or such an unlawful distribution.
circumstance shall any Holder or other obligee under the Subsidiary Guarantees be entitled to recover from the Captive Subsidiary any amount that would cause the statutory assets of the Captive Subsidiary to fail to exceed its statutory liabilities by the greatest of (a) $120,000, (b) Notwithstanding anything herein 20% of net premiums written up to $6,000,000 plus 10% of net premiums written over $6,000,000, and (c) 10% of loss and other insurance reserves, all as determined under the contraryinsurance laws of Bermuda. All obligations of the Captive Subsidiary under the Notes, the Note Guarantee granted by any Guarantor which is incorporated Subsidiary Guarantees and this Indenture are expressly limited in or existing under accordance with the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariespreceding sentence.
Appears in 1 contract
Samples: Indenture (Hughes Supply Inc)
Limitation on Guarantor Liability. (aA) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Subsidiary Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Lawany bankruptcy law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, federal or state law or foreign law any comparable laws in any other jurisdiction to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the The obligations of such each Guarantor under its Subsidiary Guarantee will be limited to the maximum amount as will, after giving effect to 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 its Subsidiary Guarantee or pursuant to its contribution obligations under this Article 10Indenture, result in the obligations of such Guarantor under its Note Subsidiary Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distributionfraudulent transfer under federal or state law or any comparable laws in any other jurisdiction and not otherwise being void or voidable under any similar laws affecting the rights of creditors generally.
(bB) Notwithstanding anything herein Limitation with respect to Swiss Guarantors
(i) If and to the contrary, the Note Guarantee granted by any extent a Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg Switzerland (each, a “Luxembourg Swiss Guarantor”) becomes directly or indirectly liable under this Section 10.02 that provides Indenture or any other Indenture Documents for obligations of any other Company Indenture Party (other than the Guarantee wholly owned direct or indirect subsidiaries of such Swiss Guarantor) (the “Restricted Obligations”) and if complying with such obligations would constitute a repayment of capital (Einlagerückgewähr), a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung) by such Swiss Guarantor or would otherwise be restricted under Swiss law and practice then applicable, such Swiss Guarantor’s aggregate liability for Restricted Obligations shall not exceed the amount of the Swiss Guarantor’s freely disposable equity (frei verfügbares Eigenkapital) at the time it becomes liable including, without limitation, any statutory reserves which can be transferred into unrestricted, distributable reserves, in accordance with Swiss law (the “Freely Disposable Amount”).
(ii) This limitation shall only apply to the extent it is a requirement under applicable law at the time the Swiss Guarantor is required to perform Restricted Obligations under any Indenture Document. Such limitation shall not free the Swiss Guarantor from its obligations in excess of the Freely Disposable Amount, but merely postpone the performance date thereof until such times when the Swiss Guarantor has again freely disposable equity.
(iii) If the enforcement of the obligations of the Swiss Guarantor under any Indenture Documents would be limited due to the effects referred to in this Indenture, the Swiss Guarantor shall further, to the extent permitted by applicable law and Swiss accounting standards and upon request by the Collateral Trustee, (i) write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale, however, only if such assets are not necessary for the Swiss Guarantor's business (nicht betriebsnotwendig) and (ii) reduce its share capital to the minimum allowed under then applicable law, provided that such steps are permitted under the Indenture Documents.
(iv) The Swiss Guarantor and any holding company of the Swiss Guarantor which is a party to an Indenture Document shall procure that the Swiss Guarantor will take and will cause to be taken all and any action as soon as reasonably practicable but in any event within 30 Business Days from the request of the Collateral Trustee, including, without limitation, (i) the Issuer and/or passing of any shareholders’ resolutions to approve any payment or other performance under this Indenture or any other Indenture Document, (ii) the provision of an audited interim balance sheet, (iii) the provision of a determination by the Swiss Guarantor of the Freely Disposable Amount based on such audited interim balance sheet, (iv) the provision of a confirmation from the auditors of the Swiss Guarantor that a payment of the Swiss Guarantor under the Indenture or any other Indenture Documents in an amount corresponding to the Freely Disposable Amount is in compliance with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves, and (v) the obtaining of any other confirmations which may be required as a matter of Swiss mandatory law in force at the time the Swiss Guarantor which is not required to make a direct payment or indirect subsidiary perform other obligations under this Indenture or any other Indenture Document, in order to allow a prompt payment in relation to Restricted Obligations with a minimum of such Luxembourg limitations.
(v) If so required under applicable law (including tax treaties) at the time it is required to make a payment under this Indenture and any Indenture Document, the Swiss Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i1) 90% shall use its best efforts to ensure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to such Luxembourg Guarantor’s capitaux propres and subordinated debt tax by notification pursuant to applicable law (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content including tax treaties) rather than payment of the presentation of tax;
(2) shall deduct the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended Swiss Withholding Tax at such rate (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available being 35% on the date on which hereof) as in force from time to time if the notification procedure pursuant to sub-paragraph (a) above does not apply; or shall deduct the Swiss Withholding Tax at the reduced rate resulting after discharge of part of such tax by notification if the notification procedure pursuant to sub-paragraph (a) applies for a demand is made under part of the Swiss Withholding Tax only; and shall pay within the time allowed any such Luxembourg Guarantor’s Note Guaranteetaxes deducted to the Swiss Federal Tax Administration; and
(ii3) 90% shall promptly notify the Collateral Trustee that such notification or, as the case may be, deduction has been made, and provide the Collateral Trustee with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration.
(vi) In the case of a deduction of Swiss Withholding Tax, the Swiss Guarantor shall use its best efforts to ensure that any person that is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment under this Indenture or any Indenture Documents, will, as soon as possible after such deduction:
(1) request a refund of the Swiss Withholding Tax under applicable law (including tax treaties), and
(2) pay to the Collateral Trustee upon receipt any amount so refunded. The Collateral Trustee shall co-operate with the Swiss Guarantor to secure such refund.
(vii) To the extent the Swiss Guarantor is required to deduct Swiss Withholding Tax pursuant to this Indenture or any other Indenture Documents, and if the Freely Disposable Amount is not fully utilised, the Swiss Guarantor will be required to pay an additional amount so that after making any required deduction of Swiss Withholding Tax the aggregate net amount paid to the Collateral Trustee is equal to the amount which would have been paid if no deduction of Swiss Withholding Tax had been required, provided that the aggregate amount paid (including the additional amount) shall in any event be limited to the Freely Disposable Amount. If a refund is made to a Secured Party, such Secured Party shall transfer the refund so received to the Swiss Guarantor, subject to any right of set-off of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred Secured Party pursuant to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiariesIndenture Documents.
Appears in 1 contract
Limitation on Guarantor Liability. (a) This Section 12.02(a) shall apply to any guarantee (hereafter a “United States Guarantee”) which is granted as provided under the Agreed Guarantee and Security Principles by any Guarantor incorporated under the laws of the United States of America or any State or territory thereof (other than a Parent Guarantor) (a “US Guarantor”). Each Guarantor, Guarantor and each Holder (by its acceptance of Notes, each Holder, the benefits of the Guarantee in this Article XII) hereby confirms that it is the its intention of all such parties that the Note this Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of the Bankruptcy LawCode, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or of any similar federal, Federal or state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guaranteelaw. To effectuate the foregoing intention, each Guarantor and each Holder (by its acceptance of the Trustee, benefits of the Holders and the Guarantors Guarantee in this Article XII) hereby irrevocably agree agrees that the obligations of Guaranteed Obligations guaranteed by such Guarantor will shall be limited to the maximum such amount as will, after giving effect to such maximum amount and all other (contingent and fixed or otherwise) liabilities of such Guarantor that are relevant under such laws, laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf pursuant to any agreement providing for an equitable contribution among such Guarantor and the other Guarantors, result in the Guaranteed Obligations of any other such Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its Note Guarantee maximum amount not constituting a fraudulent transfer or conveyance or such an unlawful distributionconveyance.
(b) Notwithstanding anything herein (%4) The restrictions in this Section 12.02(b) shall apply to any guarantee and indemnity (hereinafter the contrary, the Note Guarantee “German Guarantee”) granted by any a Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg Germany as a limited liability company (each, “GmbH”) (a “Luxembourg German Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture. The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any secure liabilities of its direct or indirect subsidiariesshareholder(s) (upstream) or an entity affiliated with such shareholder (verbundenes Unternehmen) within the meaning of section 15 et seq. of the German Stock Corporation Act (Aktiengesetz) (cross-stream) (excluding, for the avoidance of doubt purposes any direct or indirect Subsidiary of such Guarantor). It is understood and agreed that the limitations set forth in this Section 12.02(b) shall also apply to any German Guarantor’s obligations under the Guarantee to repay any amounts owed under Sections 12.04 which are not attributable to such German Guarantor.
(1) The restrictions in this Section 12.02(b) shall not apply to the extent the German Guarantor secures any indebtedness under any Indenture or Security Document in respect of (i) loans to the extent they are on-lent or otherwise (directly or indirectly) passed on to the relevant German Guarantor or its Subsidiaries and such amount on-lent or otherwise passed on is not repaid or (ii) any other benefit granted under the Indenture or Security Documents.
(2) The parties to this Indenture agree that if payment under the Guarantee or enforcement of the Guarantee under the Security Documents to which a German Guarantor is a party would (i) cause the amount of a German Guarantor’s net assets, as calculated pursuant to this Section 12.02(b), to fall below the amount of its registered share capital (Stammkapital), or (ii) increase an existing shortage of its registered share capital (Vertiefung einer Unterbilanz), in each case in violation of section 30 of the German Limited Liability Companies Act (Gesetz betreffend die Gesellschaft mit beschränkter Haftung) (“GmbHG”) (such events are hereinafter referred to as a “Capital Impairment”), then the Trustee shall, at the direction of the Requisite Holder Designee, subject to Sections 12.02(b)(4) and (5) and the applicable provisions of the Collateral Trust Agreement, demand such payment or enforcement from such German Guarantor only to the extent such Capital Impairment would not occur.
(3) If the relevant German Guarantor does not notify the Trustee in writing (the “Management Notification”) within ten Business Days after the Trustee notified such German Guarantor of its intention to demand payment under the Guarantee that a Capital Impairment would occur (setting out in reasonable detail to what extent a Capital Impairment would occur), then the restrictions set out in Section 12.02(b)(3) shall not apply.
(4) If the relevant German Guarantor does not provide an Auditors’ Determination (as defined below) within 30 Business Days from the date on which the Trustee received the Management Notification then the restrictions set out in the Section 12.02(b)(3) shall not apply and the Trustee shall not be obliged to assign or make available to the German Guarantor any net proceeds realized.
(5) The calculation of net assets (the “Net Assets”) shall only take into account the sum of the values of the assets of the relevant German Guarantor determined in accordance with applicable law and court decisions and, if there is no positive going concern (positive Fortführungsprognose) based on the lower of book value (Buchwert) and liquidation value (Liquidationswert) (consisting of all assets which correspond to those items listed in section 266 subsection (2) A, B and C of the German Commercial Code (Handelsgesetzbuch) “HGB”) less the relevant German Guarantor’s liabilities (consisting of all liabilities and liability reserves which correspond to those items listed in accordance with section 266 subsection (3) B, C and D HGB).
(6) For the purposes of calculating the Net Assets, the following balance sheet items shall be adjusted as follows:
(A) the amount of any increase in the registered share capital of the relevant German Guarantor which was carried out after the relevant German Guarantor became a party to this Indenture without the prior written consent of the Trustee shall be deducted from the amount of the registered share capital of the relevant German Guarantor;
(B) loans or other contractual liabilities incurred by the relevant German Guarantor in breach of the Indenture or the Security Documents shall not be taken into account as liabilities.
(7) The relevant German Guarantor shall realize, to the extent legally permitted and commercially reasonable in a situation where it does not have sufficient Net Assets to maintain its registered share capital, all of its assets that are shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of the assets if such asset is not necessary for the German Guarantor’s business (betriebsnotwendig).
(8) The limitations on demanding payment under this Guarantee set out in this Section 12.02(b) shall not apply if and to the extent that the German Guarantor has not taken a specific measure which the Trustee has reasonably requested and which the relevant German Guarantor is legally permitted to take in order to avoid demanding payment under the Guarantee causing a Capital Impairment of the relevant German Guarantor (including without limitation, setting off-claims), provided that it is commercially justifiable to take such measures.
(9) If the relevant German Guarantor claims that a Capital Impairment would occur on payment under this Guarantee, the German Guarantor may (at its own cost and expense) arrange for the preparation of a balance sheet by a firm of recognized auditors (the “Auditors”) in order to have such Auditors determine whether (and, if so, to what extent) any payment under this Guarantee would cause a Capital Impairment (the “Auditors’ Determination”).
(10) The Auditors’ Determination shall be prepared, taking into account the adjustments set out in Section 12.02(b)(6) and (7), by applying the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) based on the same principles and evaluation methods as constantly applied by the relevant German Guarantor in the preparation of its financial statements, in particular in the preparation of its most recent annual balance sheet, and taking into consideration applicable court rulings of German courts. Subject to Section 12.02(b)(15), such Auditors’ Determination shall be binding on the relevant German Guarantor and the Trustee.
(11) Even if the relevant German Guarantor arranges for the preparation of an Auditors’ Determination, the relevant German Guarantor’s obligations under the mitigation provisions set out in Section 12.02(b)(viii) shall continue to exist.
(12) If, after it has been provided with an Auditors’ Determination which prevented it from demanding any or only partial payment under this Guarantee, the Trustee has reasonable grounds to believe that the financial condition of the relevant German Guarantor as set out in the Auditors’ Determination has substantially improved (in particular, if the relevant German Guarantor has taken any action in accordance with the mitigation provisions set out in Section 12.02(b)(8)), the Trustee may (but shall not be obligated), at the direction of the Requisite Holder Designee, at the relevant German Guarantor’s cost and expense, arrange for the preparation of an updated balance sheet of the relevant German Guarantor by applying the same principles that were used for the preparation of the Auditors’ Determination by the Auditors who prepared the Auditors’ Determination pursuant to Section 12.02(b)(10) in order for such Auditors to determine whether (and, if so, to what extent) the situation leading to a Capital Impairment has been cured as a result of the improvement of the financial condition of the relevant German Guarantor. The Trustee may, at the direction of the Requisite Holder Designee, demand payment under this Guarantee to the extent that the Auditors determine that the Capital Impairment has been cured. Without prejudice to the foregoing, the Trustee shall have no obligation to examine or analyze the financial condition of any German Guarantor.
(13) Any managing director (Geschäftsführer) of a German Guarantor may request reimbursement from the Holders (pro rata) or the Trustee for such net proceeds received by the relevant Holder or Trustee from the realization of the security and/or guarantee provided hereunder if such managing director is required to reimburse the German Guarantor pursuant to section 64, sentence 3 GmbHG due to a final non-appealable (rechtskräftig) court decision (other than a court decision based on omission (Versäumnisurteil) or recognisance (Anerkenntnis)) which states that either the granting or the enforcement of any Security Document or a payment under this Guarantee led to the illiquidity (Zahlungsunfähigkeit) of the relevant German Guarantor, such request to be made within one month from the date of service (Zustellung) on such managing director the German Guarantor of such final court decision.
(14) Notwithstanding any limitation under this Guarantee, the Trustee shall be entitled (but not required) to further pursue in court payment claims under this Guarantee granted by the respective German Guarantor if it disagrees with the Auditor’s Determination by claiming in court that demanding payment under the German Guarantee against the relevant German Guarantor does not violate §§ 30, 31
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Samples: Indenture (Toys R Us Inc)