Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture. (b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation. (c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by: i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise; ii. any extension or renewal of any thereof; iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; iv. the release of any security held by any Holder or the Trustee for the obligations of any of them; v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings. (d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. (e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity. (f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. (g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee. (h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture. (i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 10 contracts
Samples: Supplemental Indenture (Seagate Technology PLC), Supplemental Indenture (Seagate Technology PLC), Supplemental Indenture (Seagate Technology PLC)
Parent Guarantee. (a) Holdings The Parent Guarantor, as primary obligor and not merely as surety, hereby agrees to become a party to the Indenture as a Guarantor irrevocably and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes fully and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder of the Notes and to the Trustee and its successors successor and assigns (the Guaranteed Obligations “Parent Guarantee”) on an unsecured, unsubordinated basis and equal in accordance right of payment to all existing and future unsecured, unsubordinated indebtedness of the Parent Guarantor, the punctual payment when due of all monetary obligations of the Company under the Indenture and the Notes, whether for principal of or interest on the Notes. The obligations of the Parent Guarantor hereunder shall be joint and several with Article 10 the obligations of the other Guarantors pursuant to their Guarantees under the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 The obligations of the Indenture notwithstanding Parent Guarantor shall be limited to the maximum amount as shall, after giving effect to all other contingent and fixed liabilities of the Parent Guarantor and after giving effect to any extension collections from or renewal payments made by or on behalf of any Guaranteed Obligationother Guarantor in respect of the obligations of such other Guarantor under its Guarantee, result in the obligations of the Parent Guarantor under the Parent Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law, or being void or unenforceable under any law relating to insolvency of debtors.
(c) Holdings waives presentation toThe Parent Guarantor further agrees that (to the fullest extent permitted by law) its obligations hereunder shall be unconditional, demand of, payment from and protest to Holdings of any irrespective of the Guaranteed Obligations and also waives notice validity, regularity or enforceability of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any the obligations of the terms or provisions of this Indenture, the Notes Company or any other agreement;
iv. Guarantor hereunder or thereunder, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, any release of any security held by any Holder or other Guarantor, the Trustee for the obligations recovery of any of them;
v. judgment against the failure of Company, any Holder action to enforce the same, or the Trustee to exercise any right or remedy against any other guarantor circumstance that might otherwise constitute a legal or equitable discharge or defense of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of HoldingsParent Guarantor.
(d) Holdings further agrees that The Parent Guarantor hereby waives (to the Parent Guarantee constitutes a guarantee fullest extent permitted by law) the benefit of diligence, presentment, demand of payment, performance and compliance when due (and not filing of claims with a guarantee court in the event of collection) and waives insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(eexcept as otherwise provided in Section 1.03) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected except by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the complete performance of the obligationsobligations contained in the Notes, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of and the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect . The Parent Guarantee is a guarantee of the Guaranteed Obligations guaranteed hereby, payment and (y) in the event not of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenturecollection.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 8 contracts
Samples: Supplemental Indenture (Cigna Holding Co), Supplemental Indenture (Halfmoon Parent, Inc.), Supplemental Indenture (Halfmoon Parent, Inc.)
Parent Guarantee. (a) Holdings The Parent Guarantor will hereby agrees to become irrevocably and unconditionally guarantee on a party to the Indenture senior basis, as a Guarantor primary obligor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenturenot merely as a surety, to be substituted for STX as “Parent” under the Indentureeach Holder, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the IndentureTrustee, the Notes Collateral Agent and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its their successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings Obligations. The Parent Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings the Parent Guarantor, and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any no extension or renewal of any Guaranteed Obligation.
(c) Holdings Obligation shall release the obligations of the Parent Guarantor hereunder. The obligations of the Parent Guarantor hereunder shall be joint and several with the Subsidiary Guarantees of the Subsidiary Guarantors. The Parent Guarantor waives presentation to, demand of, of payment from and protest to Holdings the Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings The Parent Guarantor waives notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee Guarantor hereunder shall not be affected by:
i. by (i) the failure of any Holder Holder, the Trustee or the Trustee Collateral Agent to assert any claim or demand or to enforce any right or remedy against Holdings the Issuer or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise;
; (ii. ) any extension or renewal of this Indenture, the Securities or any thereof;
other agreement; (iii. ) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement;
; (iv. ) the release of any security held by any the Collateral Agent on behalf of each Holder or and the Trustee for the obligations of Guaranteed Obligations or any of them;
v. Subsidiary Guarantor; or (v) the failure of any Holder Holder, the Trustee or the Trustee Collateral Agent to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 The Parent Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among itself and the Subsidiary Guarantors, such that the Parent Guarantor’s obligations would be less than the full amount claimed. The Parent Guarantor hereby waives any right to which it may be entitled to have the assets of the Indenture, Issuer first be used and depleted as payment of the Issuer’s or the Parent Guarantor’s obligations hereunder prior to any change in amounts being claimed from or paid by the ownership of Holdings.
(d) Holdings Parent Guarantor hereunder. The Parent Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against the Parent Guarantor. The Parent Guarantor further agrees that the its Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Trustee Collateral Agent to any security held for payment of the Guaranteed Obligations.
(eb) The Parent Guarantee of the Parent Guarantor is, to the extent and in the manner set forth herein, equal in right of payment to all existing and future Parent Pari Passu Indebtedness and senior in right of payment to all existing and future Parent Subordinated Indebtedness and is made subject to such provisions of this Indenture.
(c) Except as expressly set forth in Sections 8.02 and 10.05 Section 8.01(b) of the this Indenture, the obligations of Holdings under the Parent Guarantee Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee Guarantor shall not be discharged or impaired or otherwise affected by the failure of any Holder Holder, the Trustee or the Trustee Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings the Parent Guarantor or would otherwise operate as a discharge of Holdings the Parent Guarantor as a matter of law or equity.
(fd) Holdings The Parent Guarantor agrees that its Parent Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. The Parent Guarantor further agrees that the its Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder Holder, the Trustee or the Trustee Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(ge) In furtherance of the foregoing and not in limitation of any other right which any Holder Holder, the Trustee or the Trustee Collateral Agent has at law or in equity against Holdings the Parent Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, Holdings the Parent Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1i) the unpaid principal amount of such Guaranteed Obligations, (2ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (3iii) all other monetary Guaranteed Obligations obligations of the Company Issuer to the Holders and the Trustee.
(hf) Holdings The Parent Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. The Parent Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations Guaranteed guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent GuaranteeGuarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings the Parent Guarantor for the purposes of this Section 10.01 of the Indenture14.01.
(ig) Holdings The Parent Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Collateral Agent, the Trustee or any Holder in enforcing any rights under this Section 10.01 14.01.
(h) Upon request of the IndentureTrustee, the Parent Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Section 14.01.
(i) For the avoidance of doubt, the Parent Guarantor will not be subject to any of the restrictive covenants contained in this Indenture or any of the other obligations or agreements of a Subsidiary Guarantor hereunder.
Appears in 7 contracts
Samples: Indenture (Berry Global Group, Inc.), Indenture (Berry Global Group, Inc.), Indenture (Berry Global Group, Inc.)
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns assigns:
(a) the Guaranteed Obligations in accordance with Article 10 full and punctual payment of principal of, premium (if any) on and interest on the Notes when the same becomes due and payable at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise, and all other monetary obligations of the Indenture.Parent under this Indenture and the Notes; and
(b) Holdings the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing under (a) and (b) of this Section 10.01 being hereinafter collectively called the “Guaranteed Obligations”). Parent further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings Parent and that Holdings Parent will remain bound by under this Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings . Parent waives presentation to, demand of, payment from and protest to Holdings the Parent of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings Parent waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee hereunder shall not be affected by:
i. (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings the Parent or any other Person under this Indenture, the Notes or any other agreement or otherwise;
(ii. ) any extension or renewal of any thereof;
(iii. ) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
(iv. ) the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. (v) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
(vi. ) except as set forth in Section 10.05 of the Indenture10.05, any change in the ownership of Holdings.
(d) Holdings Parent. Parent further agrees that the Parent Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) . Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture10.05, the obligations of Holdings under the Parent Guarantee hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings Parent or would otherwise operate as a discharge of Holdings Parent as a matter of law or equity.
(f) Holdings . Parent further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) . In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings Parent by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings Parent hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings . Parent further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent GuaranteeGuarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings Parent for the purposes of Section 10.01 of the Indenture.
(i) Holdings this Section. Parent also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenturethis Section.
Appears in 6 contracts
Samples: Indenture (Seagate Technology PLC), Indenture (Seagate Technology PLC), Indenture (Seagate Technology PLC)
Parent Guarantee. (a) Holdings The Parent Guarantor, as primary obligor and not merely as surety, hereby agrees to become a party to the Indenture as a Guarantor irrevocably and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes fully and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder of the Notes and to the Trustee and its successors successor and assigns (the Guaranteed Obligations “Parent Guarantee”) on an unsecured, unsubordinated basis and equal in accordance right of payment to all existing and future unsecured, unsubordinated indebtedness of the Parent Guarantor, the punctual payment when due of all monetary obligations of the Company under the Indenture and the Notes, whether for principal of or interest on the Notes. The obligations of the Parent Guarantor hereunder shall be joint and several with Article 10 the obligations of the other Guarantors pursuant to their Guarantees under the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 The obligations of the Indenture notwithstanding Parent Guarantor shall be limited to the maximum amount as shall, after giving effect to all other contingent and fixed liabilities of the Parent Guarantor and after giving effect to any extension collections from or renewal payments made by or on behalf of any Guaranteed Obligationother Guarantor in respect of the obligations of such other Guarantor under its Guarantee, result in the obligations of the Parent Guarantor under the Parent Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law, or being void or unenforceable under any law relating to insolvency of debtors.
(c) Holdings waives presentation toThe Parent Guarantor further agrees that (to the fullest extent permitted by law) its obligations hereunder shall be unconditional, demand of, payment from and protest to Holdings of any irrespective of the Guaranteed Obligations and also waives notice validity, regularity or enforceability of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any the obligations of the terms or provisions of this Indenture, the Notes Company or any other agreement;
iv. Guarantor hereunder or thereunder, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, any release of any security held by any Holder or other Guarantor, the Trustee for the obligations recovery of any of them;
v. judgment against the failure of Company, any Holder action to enforce the same, or the Trustee to exercise any right or remedy against any other guarantor circumstance that might otherwise constitute a legal or equitable discharge or defense of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of HoldingsParent Guarantor.
(d) Holdings further agrees that The Parent Guarantor hereby waives (to the Parent Guarantee constitutes a guarantee fullest extent permitted by law) the benefit of diligence, presentment, demand of payment, performance and compliance when due (and not filing of claims with a guarantee court in the event of collection) and waives insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected except by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the complete performance of the obligationsobligations contained in the Notes, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of and the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect . The Parent Guarantee is a guarantee of the Guaranteed Obligations guaranteed hereby, payment and (y) in the event not of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenturecollection.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 4 contracts
Samples: Second Supplemental Indenture (Halfmoon Parent, Inc.), Second Supplemental Indenture (Express Scripts Holding Co.), Supplemental Indenture (Halfmoon Parent, Inc.)
Parent Guarantee. The Parent Guarantor hereby fully and unconditionally guarantees (ai) Holdings hereby agrees to become a party each Holder of each Security that is authenticated and delivered by the Trustee, and (ii) to the Indenture Trustee on behalf of such Holder, the due and punctual payment of the principal of, premium, if any, and interest on such Security when and as a Guarantor the same shall become due and payable, whether at the stated maturity, by acceleration, call for redemption or otherwise, in accordance with the amendments to the terms of the Indenture made in Section 2 such Security and of this Supplemental Indenture. In case of the failure of the Issuer punctually to make any such payment, the Parent Guarantor hereby agrees to cause such payment to be substituted made punctually when and as the same shall become due and payable, whether at the stated maturity or by acceleration, call for STX redemption or otherwise, and as “Parent” under if such payment were made by the Issuer. The Parent Guarantor hereby agrees that its obligations hereunder shall be absolute and unconditional, irrespective of, and shall be unaffected by, the validity, regularity or enforceability of such Security or this Indenture, the Notes and absence of any action to enforce the same or any release, amendment, waiver or indulgence granted to the Issuer or the Parent Guarantee. Holdings shall have all of the rights and be subject Guarantor or any consent to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent departure from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal requirement of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings other guarantee of all or any of the Guaranteed Obligations and also waives notice Securities or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of protest for nonpayment. Holdings waives notice of any default under the Notes a surety or the Guaranteed Obligationsguarantor. The obligations Parent Guarantor hereby waives the benefits of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of diligence, presentment, demand for payment, any Holder or requirement that the Trustee to assert or any claim of the Holders protect, secure, perfect or demand insure any security interest in or to enforce other lien on any property subject thereto or exhaust any right or remedy take any action against Holdings the Issuer or any other Person under or any collateral, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to such Security or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this IndentureParent Guarantee will not be discharged in respect of such Security except by complete performance of the obligations contained in such Security and in such Parent Guarantee. The Parent Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Notes Trustee or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms Holders of the applicable Series of Securities are prevented by applicable law from exercising their respective rights to accelerate the maturity of such Securities, to collect interest on such Securities, or provisions of this Indentureto enforce or exercise any other right or remedy with respect to such Securities, the Notes or any other agreement;
iv. the release of any security held by any Holder or Parent Guarantor agrees to pay to the Trustee for the obligations account of such Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of such Holders. The Parent Guarantor shall be subrogated to all rights of the holders of the Securities against the Issuer in respect of any amounts paid by the Parent Guarantor on account of them;
v. such Security pursuant to the failure provisions of any Holder its Parent Guarantee or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligationsthis Indenture; or
vi. except as set forth in Section 10.05 of the Indentureprovided, any change in the ownership of Holdings.
(d) Holdings further agrees however, that the Parent Guarantee constitutes a guarantee Guarantor shall not be entitled to enforce or to receive any payment arising out of, or based upon, such right of payment, performance subrogation until the principal of and compliance when due (and not a guarantee interest on all Securities of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth such Series issued hereunder shall have been paid in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the full. The Parent Guarantee shall not remain in full force and effect and continue to be subject to effective should any reductionpetition be filed by or against the Issuer for liquidation or reorganization, limitation, impairment should the Issuer become insolvent or termination make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any reason, including any claim part of waiver, release, surrender, alteration or compromisethe Issuer’s assets, and shall not be subject shall, to any defense of setoffthe fullest extent permitted by law, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of such Securities, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any holder of such Securities, whether as a “voidable preference”, “fraudulent transfer”, or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, of principal of is rescinded, reduced, restored or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereofreturned, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and such Securities shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. Any term or provision of the Trustee an amount equal Parent Guarantee to the sum of (1) contrary notwithstanding, the unpaid aggregate amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only the obligations guaranteed hereunder shall be reduced to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations necessary to prevent such Parent Guarantee from violating or becoming voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of the Company to the Holders and the Trusteecreditors generally.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 4 contracts
Samples: Indenture (Celanese Americas LLC), Indenture (Celanese Global Relocation LLC), Indenture (Celanese Global Relocation LLC)
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns assigns:
(a) the Guaranteed Obligations in accordance with Article 10 full and punctual payment of principal of, premium (if any) on and interest on the Notes when the same becomes due and payable at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise, and all other monetary obligations of the Indenture.Parent under this Indenture and the Notes; and
(b) Holdings the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing under (a) and (b) of this Section 10.01 being hereinafter collectively called the “ Guaranteed Obligations” ). Parent further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings Parent and that Holdings Parent will remain bound by under this Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings . Parent waives presentation to, demand of, payment from and protest to Holdings the Parent of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings Parent waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee hereunder shall not be affected by:
i. (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings the Parent or any other Person under this Indenture, the Notes or any other agreement or otherwise;
(ii. ) any extension or renewal of any thereof;
(iii. ) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
(iv. ) the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. (v) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
(vi. ) except as set forth in Section 10.05 of the Indenture10.05, any change in the ownership of Holdings.
(d) Holdings Parent. Parent further agrees that the Parent Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) . Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture10.05, the obligations of Holdings under the Parent Guarantee hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings Parent or would otherwise operate as a discharge of Holdings Parent as a matter of law or equity.
(f) Holdings . Parent further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) . In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings Parent by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings Parent hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings . Parent further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent GuaranteeGuarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings Parent for the purposes of Section 10.01 of the Indenture.
(i) Holdings this Section. Parent also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenturethis Section.
Appears in 4 contracts
Parent Guarantee. (a) Holdings The Parent hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indentureabsolutely, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to Seller the payment and performance of all of the payment and other obligations of Buyer to Seller in this Agreement and the other Transaction Agreements (the “Parent Obligations”), in each Holder case, when and to the Trustee extent that, any such Parent Obligations shall become due and its successors payable; provided, however, that the Parent shall be subject to the limitations set forth herein and assigns the Guaranteed Obligations in accordance with Article 10 shall succeed to all rights of the Indenture.
(b) Holdings further Buyer hereunder. The Parent agrees that the Guaranteed Obligations may be extended or renewedguaranty set forth in this Section 10.25 is a present and continuing guaranty of payment and not of collectability, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of Seller shall not be required to prosecute collection, enforcement or other remedies against Buyer or any other Person, or to enforce or resort to any other rights or remedies hereunder, before calling on the Indenture notwithstanding Parent for payment or performance. The Parent agrees that if, for any extension reason, Buyer shall fail or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation tobe unable to pay or perform, demand ofpunctually and fully, payment from and protest to Holdings of any of the Guaranteed Parent Obligations, the Parent shall pay or perform such Parent Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligationsto Seller in full immediately upon demand. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for agrees that the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of paymentpursuant to this Section 10.25 shall be primary obligations, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reductioncounterclaim, limitationset-off, impairment abatement, deferment or termination for any reason, including defense based upon any claim of waiverthat the Parent may have against Seller or any other Person, release, surrender, alteration or compromiseand shall remain in full force and effect without regard to, and shall not be subject to any defense of setoffreleased, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of in any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, way by any waiver circumstance or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations condition (whether or not due the Parent shall have any knowledge thereof). The execution, delivery and payable) shall forthwith become due performance by the Parent of this Agreement and payable by Holdings for the purposes of Section 10.01 consummation of the Indenture.
(i) Holdings also agrees transactions contemplated hereby, have been duly authorized by all necessary corporate action on the part of the Parent. The Parent has duly executed and delivered this Agreement, and assuming the due authorization, execution and delivery by Seller, this Agreement constitute its legal, valid and binding obligation, enforceable against it in accordance with its terms, except to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred the extent that the enforceability thereof may be limited by the Trustee or any Holder in enforcing any rights under Section 10.01 Enforceability Exceptions. [The remainder of the Indenturethis page is intentionally blank. Signatures follow.]
Appears in 4 contracts
Samples: Share Purchase Agreement (Revelyst, Inc.), Share Purchase Agreement (Outdoor Products Spinco Inc.), Share Purchase Agreement (Outdoor Products Spinco Inc.)
Parent Guarantee. (a) Holdings hereby agrees to become Each Parent Guarantor, hereby, jointly and severally, irrevocably and unconditionally guarantees, on a party to senior basis, for itself and its successors and assigns, irrespective of the validity and enforceability of the Indenture as a Guarantor or the Notes, or the obligations of the Company thereunder, that: (1) the principal of and premium, if any, and interest on the Notes, shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, shall be promptly paid in full, all in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings Notes; and (2) in case of any extension of time of payment of renewal of any Notes, that same shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations promptly paid in full when due in accordance with Article 10 the terms of the Indenture.
(b) Holdings further extension or renewal, whether a stated maturity, by acceleration or otherwise. Failing payment by the Company when due of any amount so guaranteed for whatever reason, the Parent Guarantors shall be jointly and severally obligated to pay the same immediately. Each Parent Guarantor agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes is a guarantee of payment, performance and compliance when due (payment and not a guarantee of collection.
(b) The Parent Guarantors hereby agree that their obligations under the Indenture and the Notes shall be unconditional, irrespective of the validity, regulatory or enforceability of the Indenture or the Notes, the absence of any action to enforce the same, any waiver or consent by any Securityholder with respect to any provisions of the Indenture or the Notes, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Parent Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the a Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee Guaranty shall not be discharged or impaired or otherwise affected except by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the complete performance of the obligationsobligations contained in the Indenture and the Notes, or by any other act or thing or omission or delay pursuant to do any other act or thing which may or might in any manner or to any extent vary the risk Section 3(c) of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the this Ninth Supplemental Indenture.
(ic) Holdings also agrees to pay any A Parent Guaranty by a Parent Guarantor shall be automatically and all costs unconditionally released and expenses (including reasonable attorneys’ fees discharged, and expenses) incurred such Parent Guaranty shall thereupon terminate and be discharged and be of no further force and effect, and no further action by such Parent Guarantor, the Company or the Trustee shall be required for the release of such Parent Guarantor’s Parent Guaranty: (A) upon the merger or consolidation of such Parent Guarantor with and into the Company, any other Parent Guarantor or any Holder Other Guarantor that is a surviving person in enforcing such merger or consolidation, or upon the liquidation of such Parent Guarantor following or concurrently with the transfer of all or substantially all of its assets to Company, another Parent Guarantor or any rights under Section 10.01 Other Guarantor (and, if applicable, any minority stockholders of such Parent Guarantor or Other Guarantor) or (B) upon the Company exercising its legal defeasance or covenant defeasance options in accordance with the terms of the IndentureIndenture and the Notes.
Appears in 3 contracts
Samples: Supplemental Indenture (Covidien PLC), Supplemental Indenture (Medtronic PLC), Supplemental Indenture (Medtronic PLC)
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings PARENT hereby unconditionally and irrevocably guarantees to each Holder guarantees, jointly and to severally, as a primary obligor and not merely as a surety, the Trustee due and its successors timely payment and assigns performance of all obligations of CELGENE under this Agreement (the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings further “Celgene Obligations”). PARENT agrees that (a) the Guaranteed Celgene Obligations and this Agreement may be extended extended, modified or renewed, in whole or in part, without notice or further assent from Holdings PARENT, and that Holdings PARENT will remain bound by Article 10 of the Indenture upon its guarantee notwithstanding any extension extension, modification or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation toCelgene Obligation or of this Agreement, demand of, payment from and protest to Holdings any assumption of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of such guaranteed Celgene Obligation by any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings other party or any other Person act or event that might otherwise operate as a legal or equitable discharge of PARENT under this IndentureSection 13.21 (other than any defenses available to CELGENE under this Agreement), the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any and (b) PARENT shall be bound by all of the terms or provisions and conditions of Article 9 and this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor Article 13 (and all of the Guaranteed Obligations; or
videfinitions and capitalized terms contained therein) as if such Section applied to PARENT. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings PARENT further agrees that the Parent Guarantee its guarantee constitutes a an irrevocable guarantee of payment, payment and performance and compliance when due (and not a guarantee just of collection) and waives any right to require that any resort be had by EPIZYME to any Holder or the Trustee to other guarantee for any security held for payment or performance of the Guaranteed Celgene Obligations.
. This guarantee is in no way conditioned upon any requirement that EPIZYME first attempt to collect or enforce any guaranteed obligation from or against CELGENE. Except with respect to any defenses available to CELGENE under this Agreement: (ey) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under PARENT hereunder shall be absolute and unconditional irrespective of the Parent Guarantee shall not be subject to validity, legality or enforceability of this Agreement or any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromiseother document related hereto, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure or contingent upon any modification, alteration, amendment or addition of or to this Agreement; and (z) PARENT hereby waives all special suretyship defenses and protest, notice of protest, demand for performance, diligence, notice of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if action at any time paymenttaken or omitted by EPIZYME and, or any part thereofgenerally, all demands and notices of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must every kind in connection with this Section 13.21 and the Celgene Obligations hereby guaranteed, and which PARENT may otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization assert against EPIZYME. PARENT acknowledges that each of the Company or otherwise.
(g) In furtherance waivers set forth above is made with full knowledge of its significance and consequences and under the foregoing circumstances the waivers are reasonable and not in limitation contrary to public policy. If any of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause said waivers is determined to be paidcontrary to any applicable Law or public policy, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but waivers shall be effective only to the extent not prohibited permitted by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the TrusteeLaw.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 3 contracts
Samples: Collaboration and License Agreement (Epizyme, Inc.), Collaboration and License Agreement (Epizyme, Inc.), Collaboration and License Agreement (Epizyme, Inc.)
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms Article Fourteen of the Original Indenture made in Section 2 of (as amended and supplemented by this Supplemental Indenture, ) shall apply to the Notes. The MLP hereby agrees that it shall be substituted for STX as “Parent” under the Indenture, a Guarantor of the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Fourteen of the Original Indenture.
. For the purposes of this Supplemental Indenture and the Notes (b) Holdings further agrees that including without limitation the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 provisions of the Original Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation toto the extent applicable thereto), demand ofthe term “Guarantor” shall mean the MLP, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under accordingly, the Parent Guarantee of the MLP shall be a Securities Guarantee with respect to the Indenture and the Notes; provided, however that such Securities Guarantee shall not be affected by:
i. apply to any obligations under any series of Securities other than the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
iiNotes. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as To evidence its Parent Guarantee set forth in Section 10.05 Article Fourteen of the Original Indenture (as amended and supplemented by this Supplemental Indenture), any change the Guarantor hereby agrees that a notation of such Parent Guarantee substantially in the ownership form attached as Exhibit B hereto will be endorsed by an Officer of Holdings.
(d) Holdings further such Guarantor on each Note authenticated and delivered by the Trustee and that this Supplemental Indenture will be executed on behalf of such Guarantor by one of its Officers. The Guarantor hereby agrees that its Parent Guarantee set forth in Article Fourteen of the Original Indenture (as amended and supplemented by this Supplemental Indenture) will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Parent Guarantee. If an Officer whose signature is on this Supplemental Indenture or on the notation of such Parent Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a notation of such Parent Guarantee is endorsed, the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort will be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwisevalid nevertheless. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure The delivery of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand Note by the Trustee, forthwith payafter the authentication thereof hereunder, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes will constitute due delivery of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration Guarantee set forth in respect the Indenture on behalf of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the IndentureGuarantor.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 2 contracts
Samples: Fourth Supplemental Indenture (El Paso Pipeline Partners, L.P.), Third Supplemental Indenture (El Paso Pipeline Partners, L.P.)
Parent Guarantee. The Parent (ai) Holdings hereby agrees to become a party to unconditionally guarantees the Indenture as a Guarantor due and in accordance with the amendments to the terms punctual payment and performance of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the Seller’s and its Affiliates’ obligations and commitments under this Agreement or any related documents, and (ii) hereby further covenants to procure and cause the Seller and its Affiliates to take such actions necessary to support and duly complete the due and punctual payment and performance of the Seller’s and its Affiliates’ obligations and commitments under this Agreement and any related documents in relation to the Buyer’s exercise of its rights and be subject to all remedies under this Agreement and any related documents (collectively, (i) and (ii) this “Parent Guaranty”). This Parent Guaranty is an irrevocable guaranty of the obligations payment and agreements performance (and not just of Parent under the Indenture, the Notes collection) and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations shall continue in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture effect notwithstanding any extension or renewal modification of the terms of this Agreement or any related document, any assumption of any Guaranteed Obligation.
(c) Holdings such guaranteed obligations by any other party or Person or any other act or event that might otherwise operate as a legal or equitable discharge of the Parent. The Parent hereby waives presentation to, demand of, payment from and protest all its rights to Holdings subrogation arising out of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default payment or performance by The Parent under the Notes or the Guaranteed Obligationsthis Parent Guaranty. The obligations of Holdings under the Parent Guarantee hereunder shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance absolute and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromiseunconditional, and shall not be subject to any defense of setoffaffected by or contingent upon (a) the liquidation or dissolution of, counterclaim, recoupment or termination whatsoever the merger or by reason consolidation of the invaliditySeller or any of its Affiliates with or into any corporation or other Person, illegality or unenforceability any sale or transfer by the Seller or any of its Affiliates or all or any part of its or their property or assets, (b) the Guaranteed Obligationsbankruptcy, receivership, insolvency, reorganization or similar proceedings involving or affecting the Seller or its Affiliates, or (c) any modification, alteration, amendment, supplement, waiver or addition of or to this IndentureAgreement or any related document. The Parent hereby waives all suretyship defenses and protest, notice of protest, demand for performance, diligence, notice of any other action at any time taken or omitted by the Notes or otherwise. Without limiting Buyer and, generally, all demands and notices of every kind in connection with this Parent Guaranty, and the generality of the foregoingSeller’s and its Affiliates’ obligations in this Agreement and any related documents hereby guaranteed, the obligations of Holdings under and which the Parent Guarantee shall not be discharged or impaired or may otherwise affected by assert against the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Buyer. This Parent Guarantee Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time payment, payment or performance of any of the obligations of the Seller or any part thereof, of principal of its Affiliates under this Agreement or premium (if any) on or interest on any Guaranteed Obligation related document is rescinded or must otherwise be restored or returned by any Holder or the Trustee Company upon the insolvency, bankruptcy or reorganization of the Company Seller or its Affiliates or otherwise.
(g) In furtherance . The Parent acknowledges that each of the foregoing waivers set forth in this Parent Guaranty is made with full knowledge of its significance and consequences and under the circumstances the waivers are reasonable and not in limitation contrary to public policy. If any of said waivers is determined to be contrary to any other right which any Holder or the Trustee has at applicable law or in equity against Holdings by virtue hereofpublic policy, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to such waivers shall be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but effective only to the extent not prohibited permitted and required by applicable law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Ascendis Pharma a/S), Purchase and Sale Agreement (Ascendis Pharma a/S)
Parent Guarantee. (a) Holdings In order to induce Purchaser to enter into this Agreement, Seller Parent hereby agrees to become a party absolutely, irrevocably and unconditionally guarantees to the Indenture as a Guarantor Purchaser Indemnified Parties, their successors and assigns, the full performance and observation of all the terms, covenants, conditions, provisions and agreements to be performed or observed by Seller or the Company when required to be performed or observed, and the payment in full of all amounts owed by Seller and the Company to any Purchaser Indemnified Parties when due and payable, in each case in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes Agreement or the Guaranteed ObligationsAncillary Agreements. The obligations of Holdings under the Parent Guarantee Such guarantee shall be as primary obligor and not merely as surety, shall be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, payment and performance and compliance when due (not of collection and not shall be a guarantee continuing guarantee. Seller Parent hereby waives acceptance, diligence, promptness, presentment, demand of collection) and waives payment or performance, filing of claims with a court in the event of insolvency or bankruptcy of Seller or the Company, any right to require that any resort be had by any Holder a proceeding (or the Trustee to any security held for payment other exhaustion of the Guaranteed Obligations.
(eremedies) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment first against Seller or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of to join Seller or the foregoing and not Company in limitation of any enforcement action or to first resort to any other right which any Holder means of obtaining payment or the Trustee has at law or in equity against Holdings by virtue hereofperformance, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligationprotest, Holdings hereby promises to notice and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the demands whatsoever. Seller Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expensesdisbursements of counsel) incurred by any of the Trustee or any Holder Purchaser Indemnified Parties in enforcing any rights under this Section 10.01 12.13. Seller Parent hereby makes all of the Indenturerepresentations and warranties set forth in Sections 4.1 (except that the reference to the “State of Delaware” shall be deemed to be replaced by “Commonwealth of Australia”), 4.2 and 4.3, with references therein to “Seller” deemed to be replaced by “Seller Parent”. Seller Parent hereby acknowledges and agrees to be bound by all of the provisions of Article XII of this Agreement. References in Section 12.13(a) to the Company shall be deemed to mean and refer to the obligations of Company prior to the Closing.
(b) Seller Parent hereby irrevocably designates and appoints Seller (in such capacity, the “Process Agent”) as its authorized agent to accept and acknowledge on its behalf, in the manner provided for notices to Seller, as the Seller, in Section 12.6 of this Agreement, service of any and all process which may be served in any Action arising out of or relating to this Agreement and hereby consents to process being served upon the Process Agent in any such Action. Seller hereby accepts the foregoing appointment. Seller Parent irrevocably waives, to the fullest extent permitted by Law, all claim of error by reason of any such service and agrees that such service shall be deemed in every respect effective service of process upon it in any such Action and shall, to the fullest extent permitted by Law, be taken and held to be valid and personal service upon and personal delivery to it. If Seller ceases to act as Process Agent at any time, Seller Parent covenants and agrees to designate irrevocably and appoint without delay another such agent domiciled in the U.S. reasonably satisfactory to Purchaser and to deliver promptly to Purchaser evidence in writing of such other agent’s acceptance of such appointment.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Genesis Energy Lp), Stock Purchase Agreement (Tronox LTD)
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns assigns:
(a) the Guaranteed Obligations in accordance with Article 10 full and punctual payment of principal of, premium (if any) on and interest on the Notes when the same becomes due and payable at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise, and all other monetary obligations of the Indenture.Parent under this Indenture and the Notes; and
(b) Holdings the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing under (a) and (b) of this Section 10.01 being hereinafter collectively called the “Guaranteed Obligations”). Parent further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings Parent and that Holdings Parent will remain bound by under this Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings . Parent waives presentation to, demand of, payment from and protest to Holdings the Parent of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings Parent waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee hereunder shall not be affected by:
i. (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings the Parent or any other Person under this Indenture, the Notes or any other agreement or otherwise;
(ii. ) any extension or renewal of any thereof;
(iii. ) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
(iv. ) the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. (v) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
(vi. ) except as set forth in Section 10.05 of the Indenture10.05, any change in the ownership of Holdings.
(d) Holdings Parent. Parent further agrees that the Parent Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) . Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture10.05, the obligations of Holdings under the Parent Guarantee hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings Parent or would otherwise operate as a discharge of Holdings Parent as a matter of law or equity.
(f) Holdings . Parent further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) . In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings Parent by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings Parent hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the 1)the unpaid amount of such Guaranteed Obligations, (2) accrued 2)accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all 3)all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings . Parent further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent GuaranteeGuarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings Parent for the purposes of Section 10.01 of the Indenture.
(i) Holdings this Section. Parent also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenturethis Section.
Appears in 2 contracts
Samples: Indenture (Seagate Technology PLC), Indenture (Seagate Technology PLC)
Parent Guarantee. (a) Holdings The Parent Guarantor will hereby agrees to become irrevocably and unconditionally guarantee on a party to the Indenture senior basis, as a Guarantor primary obligor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenturenot merely as a surety, to be substituted for STX as “Parent” under the Indentureeach Holder, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its their successors and assigns (i) the Guaranteed Obligations in accordance with Article 10 full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Indenture.
Companies under this Indenture (bincluding obligations to the Trustee) Holdings and the Securities of each series issued from time to time, whether for payment of principal of, premium, if any, or interest on such Securities and all other monetary obligations of the Companies under this Indenture and such Securities and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Companies whether for fees, expenses, indemnification or otherwise under this Indenture and such Securities (the foregoing obligations set forth in clauses (i) through (ii) being hereinafter collectively called the “Guaranteed Obligations”). The Parent Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings the Parent Guarantor, and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any no extension or renewal of any Guaranteed Obligation.
(c) Holdings Obligation shall release the obligations of the Parent Guarantor hereunder. The Parent Guarantor waives presentation to, demand of, of payment from and protest to Holdings the Companies of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings The Parent Guarantor waives notice of any default under the Notes any series of Securities or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee Guarantor hereunder shall not be affected by:
i. by (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings the Companies or any other Person under this Indenture, the Notes Securities of any series or any other agreement or otherwise;
; (ii. ) any extension or renewal of this Indenture, the Securities of any thereof;
series or any other agreement; (iii. ) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities with respect to any series or any other agreement;
; (iv. ) the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. Guaranteed Obligations; or (v) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the any Guaranteed Obligations; or
vi. except as set forth in Section 10.05 The Parent Guarantor hereby waives any right to which it may be entitled to have the assets of the Indenture, Companies first be used and depleted as payment of the Companies’ or the Parent Guarantor’s obligations hereunder prior to any change in amounts being claimed from or paid by the ownership of Holdings.
(d) Holdings Parent Guarantor hereunder. The Parent Guarantor hereby waives any right to which it may be entitled to require that the Companies be sued prior to an action being initiated against the Parent Guarantor. The Parent Guarantor further agrees that the its Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the any Guaranteed Obligations.
(eb) The Parent Guarantee of the Parent Guarantor is, to the extent and in the manner set forth herein, equal in right of payment to all existing and future unsubordinated Indebtedness of the Parent Guarantor and senior in right of payment to all existing and future subordinated Indebtedness of the Parent Guarantor and is made subject to such provisions of this Indenture.
(c) Except as expressly set forth in Sections 8.02 and 10.05 Section 12.02 of the this Indenture, the obligations of Holdings under the Parent Guarantee Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee Guarantor shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Securities of any series or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings the Parent Guarantor or would otherwise operate as a discharge of Holdings the Parent Guarantor as a matter of law or equity.
(fd) Holdings The Parent Guarantor agrees that its Parent Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. The Parent Guarantor further agrees that the its Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company Companies or otherwise.
(ge) In furtherance of the foregoing and not in limitation of any other right which any Holder Holder, or the Trustee has at law or in equity against Holdings the Parent Guarantor by virtue hereof, upon the failure of the Company Companies to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, Holdings the Parent Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1i) the unpaid principal amount of such Guaranteed Obligations, (2ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (3iii) all other monetary Guaranteed Obligations obligations of either of the Company Companies to the Holders and the Trustee.
(hf) Holdings The Parent Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations with respect to any series of Securities guaranteed hereby until payment in full of all Guaranteed Obligations. The Parent Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations Guaranteed with respect to any series of Securities guaranteed hereby may be accelerated as provided in Article 6 of the Indenture VII for the purposes of the Parent GuaranteeGuarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations with respect to any series of Securities guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the IndentureVII, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings the Parent Guarantor for the purposes of this Section 10.01 of the Indenture16.01.
(ig) Holdings The Parent Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01 16.01.
(h) Upon request of the IndentureTrustee, the Parent Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Section 16.01.
Appears in 2 contracts
Samples: Indenture (NXP Semiconductors N.V.), Indenture (NXP Funding LLC)
Parent Guarantee. Each Parent (the “Guarantor Parent”) absolutely, irrevocably and unconditionally guarantees the full and timely payment and performance of the obligations of the other members of its respective Parent Member Group (the “Guaranteed Members”) to the other Parent, the other members of such other Parent’s Parent Member Group and the Company (any party to whom such obligations are owed, a “Beneficiary”) when due and payable or required to be performed, as applicable, in accordance with this Agreement. If a Guaranteed Member fails to discharge any of its obligations when due under this Agreement, upon written notice from a Beneficiary to the Guarantor Parent of such failure, such Guarantor Parent will perform such obligations. Notwithstanding anything contained herein to the contrary, each Guarantor Parent shall have and may assert against any of its obligations pursuant to this Section 14.17, and such Guarantor Parent’s obligations under this Section 14.17 shall be subject to, any claim, right, set-off, deduction or defense of any kind that its respective Guaranteed Member may have or may assert under this Agreement. It shall not be necessary for a Beneficiary (and the Guarantor Parent hereby waives any rights which the Guarantor Parent may have to require a Beneficiary), in order to enforce the obligations of such Guarantor Parent hereunder, first to (a) Holdings hereby agrees to become institute suit or exhaust its remedies against a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental IndentureGuaranteed Member or any other Person, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the join a Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings Member or any other Person in any action seeking to enforce this Agreement, or (c) resort to any other means of obtaining payment or enforcement of the obligations of a Guaranteed Member. A Beneficiary shall not be required to take any action to reduce, collect or enforce the obligations of a Guaranteed Member when due under this IndentureAgreement. Each Guarantor Parent waives notice of protest, proof of non-payment, default or breach by its Guaranteed Members. Each Guarantor Parent agrees to each of the Notes following, and agrees that its obligations under this Agreement a result of this Section 14.17 shall not be released, diminished, impaired, reduced or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of adversely affected by any of the terms following, and waives any common law, equitable, statutory or provisions other rights (including without limitation rights to notice except as provided above and except for notices required to be given by a Beneficiary to a Guaranteed Member or its Guarantor Parent pursuant to this Agreement) which the Guarantor Parent might otherwise have as a result of this Indentureor in connection with (A) any renewal, the Notes extension, increase, modification, alteration or rearrangement of all or any other agreement;
iv. the release part of any security held by any Holder or the Trustee for the obligations of a Guaranteed Member pursuant to this Agreement, (B) any insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution, asset sale or transfer or change of them;
v. the failure of structure or organization or (C) any Holder full or the Trustee to exercise any right or remedy against any other guarantor partial release by a Beneficiary of the liability of a Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time paymentMember, or any part thereof, with respect to a Guaranteed Member or any of principal its assets. Each Guarantor Parent shall be subrogated to all rights of a Beneficiary against a Guaranteed Member in respect of any amounts paid by such Guarantor Parent to such Beneficiary pursuant to the provisions of this Section 14.17 in respect of any obligations of such Guaranteed Member under this Agreement. The guarantee by each Guarantor Parent set forth in this Section 14.17 is a continuing and absolute guarantee, and it will not be discharged, and will remain in full force and effect, until the full payment and performance required to be paid and performed by its Guaranteed Members pursuant to this Agreement or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization earlier dissolution of the Company or otherwise.
in accordance with Article 13 (g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only except to the extent not prohibited of any obligations that survive such dissolution). Unless so terminated earlier, the guarantee by law) each Guarantor Parent set forth in this Section 14.17 with respect to a Guaranteed Member shall immediately and (3) automatically terminate upon the full payment and performance of all other monetary amounts and obligations required to be paid and performed by such Guaranteed Obligations of the Company Member pursuant to the Holders and the Trusteeterms of this Agreement.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (McGraw-Hill Companies Inc), Contribution Agreement (McGraw-Hill Companies Inc)
Parent Guarantee. (a) Holdings hereby agrees Parent, as primary obligor and not merely as surety, absolutely, irrevocably and unconditionally guarantees the full and timely payment and performance of the obligations of Purchaser (the “Guaranteed Obligations”) when due and payable or required to become a party to the Indenture be performed, as a Guarantor and applicable, in accordance with this Agreement and the amendments to the terms Ancillary Agreements. This is a guarantee of payment and performance, and not of collectability. The obligations of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes this Section 11.15(a) are absolute and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations unconditional in accordance with Article 10 respect of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of satisfying the Guaranteed Obligations and also shall be enforceable against Parent to the same extent as if Parent were the primary obligor (and not merely a surety) under this Agreement and the Ancillary Agreements. It shall not be necessary for Seller (and Parent hereby waives any rights which Parent may have to require Seller), in order to enforce the obligations of Parent hereunder, first to (a) institute suit or exhaust its remedies against Purchaser or any other Person, (b) join Purchaser or any other Person in any action seeking to enforce any such agreement or (c) resort to any other means of obtaining payment or enforcement of the obligations of Purchaser; provided that, for the avoidance of doubt, any defenses or counterclaims that would be available to Purchaser shall be available to Parent hereunder (other than to the extent expressly waived in this Section 11.15(a) or otherwise arising from any insolvency, bankruptcy, arrangement, adjustment, composition or liquidation of Purchaser). Seller shall not be required to take any action to reduce, collect or enforce the obligations of Purchaser when due under this Agreement or any Ancillary Agreement. Parent waives notice of protest protest, proof of non-payment, default or breach by Purchaser, promptness, diligence, notice of acceptance of this guarantee and of the Guaranteed Obligations, presentment, demand for nonpayment. Holdings waives payment, notice of any default Guaranteed Obligations incurred, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect. Parent agrees to each of the following, and agrees that its obligations under this Agreement and the Notes or the Guaranteed Obligations. The obligations Ancillary Agreements as a result of Holdings under the Parent Guarantee this Section 11.15(a) shall not be released, diminished, impaired, reduced or adversely affected by:
i. by any of the following, and waives any common law, equitable, statutory or other rights (including rights to notice except for notices required to be given by Seller to Purchaser or Parent pursuant to this Agreement) which Parent might otherwise have as a result of or in connection with (i) any renewal, extension, increase, modification, alteration or rearrangement of all or any part of the obligations of Purchaser pursuant to this Agreement or any Ancillary Agreement, (ii) any insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution, asset sale or transfer or change of structure, ownership or organization of any Person, (iii) any full or partial release by Seller of the liability of Purchaser, or any part thereof, with respect to Purchaser or any of its assets, (iv) the failure or delay on the part of any Holder or the Trustee Seller to assert any claim or demand or to enforce any right or remedy against Holdings Purchaser or (v) the adequacy of any other Person under this Indenture, means the Notes or Seller may have of obtaining payment related to any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as Parent acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by this Agreement and the Ancillary Agreements. Parent shall be subrogated to all rights of Seller against Purchaser in respect of any amounts paid by Parent to Seller pursuant to the provisions of this Section 11.15(a) in respect of any obligations of Purchaser under this Agreement and the Ancillary Agreements, but only after payment in full in cash of all the Guaranteed Obligations. The guarantee set forth in this Section 10.05 11.15(a) is a continuing and absolute guarantee, and it and the Guaranteed Obligations will not be discharged, and will remain in full force and effect, until the full payment and performance of all amounts required to be paid and performed by Purchaser pursuant to this Agreement and the Ancillary Agreements. Parent hereby makes all of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance representations and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly warranties set forth in Sections 8.02 4.1 (except that the reference to the “State of Delaware” shall be deemed to be replaced by “Commonwealth of Australia”), 4.2 and 10.05 4.3, with references therein to “Purchaser” deemed to be replaced by “Parent”. Parent hereby acknowledges and agrees to be bound by all of the Indentureprovisions of Article XI of this Agreement.
(b) Parent hereby irrevocably designates and appoints Purchaser (in such capacity, the obligations “Process Agent”) as its authorized agent to accept and acknowledge on its behalf, in the manner provided for notices to Purchaser, as the Purchaser, in Section 11.7 of Holdings under this Agreement, service of any and all process which may be served in any Action arising out of or relating to this Agreement and hereby consents to process being served upon the Process Agent in any such Action. Purchaser hereby accepts the foregoing appointment. Parent Guarantee shall not be subject irrevocably waives, to any reductionthe fullest extent permitted by Law, limitation, impairment or termination for any reason, including any all claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or error by reason of the invalidity, illegality or unenforceability any such service and agrees that such service shall be deemed in every respect effective service of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might process upon it in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to such Action and shall, upon receipt of written demand to the fullest extent permitted by the TrusteeLaw, forthwith pay, or cause be taken and held to be paidvalid and personal service upon and personal delivery to it. If Purchaser ceases to act as Process Agent at any time, Parent covenants and agrees to designate irrevocably and appoint without delay another such agent domiciled in cash, the U.S. reasonably satisfactory to the Holders or the Trustee an amount equal Seller and to the sum of (1) the unpaid amount deliver promptly to Seller evidence in writing of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration agent’s acceptance of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indentureappointment.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Tronox LTD), Stock and Asset Purchase Agreement (FMC Corp)
Parent Guarantee. (a) Holdings For value received, Parent hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenturefully, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder Sellers (the “Parent Guarantee”) (x) the prompt and punctual payment of any amount Purchaser is required to pay under this Agreement, when and as the same shall become due and payable, subject as to such payment obligations to the Trustee terms and its successors and assigns conditions of this Agreement, including, without limitation, the Guaranteed Obligations in accordance with Article 10 payment of the IndenturePurchase Price as provided by Article I, and (y) the prompt and full performance when due by Purchaser of its obligations under this Agreement. Parent’s guarantee obligations include the principal, interest, fines, fees, costs and other amounts that may be due and payable by Purchaser under this Agreement.
(b) Holdings further The Parent Guarantee is a first demand guarantee and shall constitute an autonomous and independent obligation of Parent not being ancillary to the obligations of Purchaser under this Agreement. Parent hereby agrees that the Guaranteed Obligations may to cause any such payment or performance to be extended made as if such payment or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound payment were made by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed ObligationPurchaser.
(c) Holdings Parent hereby waives presentation todiligence, presentment, demand ofof payment, filing of claims with a court in the event of a merger or bankruptcy of Purchaser, any right to require a proceeding first against Purchaser, protest or notice with respect to any amount payable by Purchaser under this Agreement and all demands whatsoever, and covenants that the Parent Guarantee will not be discharged except by (i) termination of this Agreement according to its terms, (ii) payment from in full of all amounts due and protest to Holdings payable under this Agreement or (iii) performance in full of any all obligations due under this Agreement.
(d) The applicability of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. or impaired by any of the following: (i) any extension of time, forbearance or concession given to Purchaser; (ii) any assertion of, or failure of to assert, or delay in asserting, any Holder or the Trustee to assert any claim or demand or to enforce any right right, power or remedy against Holdings Purchaser; (iii) any amendment of the provisions of this Agreement; (iv) any failure of Purchaser to comply with any requirement of any Law; (v) the dissolution, liquidation, reorganization or any other Person under alteration of the legal structure of Purchaser; (vi) any invalidity or unenforceability of any provision of this Indenture, the Notes Agreement; or (vii) any other agreement circumstance (other than complete payment by Purchaser or otherwise;
ii. any extension Parent) which might otherwise constitute a legal or renewal equitable discharge or defense of any thereof;
iii. any rescission, waiver, amendment a surety or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligationsguarantor.
(e) Except as expressly set forth in Sections 8.02 Parent shall be subrogated to all rights of Purchaser against Sellers based on and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited of any amounts paid to Sellers by law) and (3) all other monetary Guaranteed Obligations of the Company Parent pursuant to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes provisions of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 2 contracts
Samples: Stock Purchase Agreement (CMS Energy Corp), Stock Purchase Agreement (CMS Energy Corp)
Parent Guarantee. (a) Holdings The Parent Guarantor will hereby agrees to become irrevocably and unconditionally guarantee on a party to the Indenture senior basis, as a Guarantor primary obligor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenturenot merely as a surety, to be substituted for STX as “Parent” under the Indentureeach Holder, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its their successors and assigns (i) the Guaranteed Obligations in accordance with Article 10 full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Indenture.
Company under this Indenture (bincluding obligations to the Trustee) Holdings and the Securities, whether for payment of principal of, premium, if any, or interest on the Securities and all other monetary obligations of the Company under this Indenture and the Securities and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Securities (the foregoing obligations set forth in clauses (i) through (ii) being hereinafter collectively called the “Guaranteed Obligations”). The Parent Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings the Parent Guarantor, and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any no extension or renewal of any Guaranteed Obligation.
(c) Holdings Obligation shall release the obligations of the Parent Guarantor hereunder. The Parent Guarantor waives presentation to, demand of, of payment from and protest to Holdings the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings The Parent Guarantor waives notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee Guarantor hereunder shall not be affected by:
i. by (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings the Company or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise;
; (ii. ) any extension or renewal of this Indenture, the Securities or any thereof;
other agreement; (iii. ) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement;
; (iv. ) the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. Guaranteed Obligations; or (v) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 The Parent Guarantor hereby waives any right to which it may be entitled to have the assets of the Indenture, Company first be used and depleted as payment of the Company’s or the Parent Guarantor’s obligations hereunder prior to any change in amounts being claimed from or paid by the ownership of Holdings.
(d) Holdings Parent Guarantor hereunder. The Parent Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against the Parent Guarantor. The Parent Guarantor further agrees that the its Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(eb) The Parent Guarantee of the Parent Guarantor is, to the extent and in the manner set forth herein, equal in right of payment to all existing and future unsubordinated Indebtedness of the Parent Guarantor and senior in right of payment to all existing and future subordinated Indebtedness of the Parent Guarantor and is made subject to such provisions of this Indenture.
(c) Except as expressly set forth in Sections 8.02 and 10.05 Section 12.02(b) of the this Indenture, the obligations of Holdings under the Parent Guarantee Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee Guarantor shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings the Parent Guarantor or would otherwise operate as a discharge of Holdings the Parent Guarantor as a matter of law or equity.
(fd) Holdings The Parent Guarantor agrees that its Parent Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. The Parent Guarantor further agrees that the its Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(ge) In furtherance of the foregoing and not in limitation of any other right which any Holder Holder, or the Trustee has at law or in equity against Holdings the Parent Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, Holdings the Parent Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1i) the unpaid principal amount of such Guaranteed Obligations, (2ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (3iii) all other monetary Guaranteed Obligations obligations of the Company to the Holders and the Trustee.
(hf) Holdings The Parent Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. The Parent Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations Guaranteed guaranteed hereby may be accelerated as provided in Article 6 of the Indenture VII for the purposes of the Parent GuaranteeGuarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the IndentureVII, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings the Parent Guarantor for the purposes of this Section 10.01 of the Indenture16.01.
(ig) Holdings The Parent Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01 16.01.
(h) Upon request of the Trustee, the Parent Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Section 16.01.
(i) For the avoidance of doubt, the Parent Guarantor will not be subject to any of the restrictive covenants contained in this Indenture.
Appears in 2 contracts
Samples: Indenture (TAL INTERNATIONAL CONTAINER Corp), Indenture (TAL INTERNATIONAL CONTAINER Corp)
Parent Guarantee. (a) Holdings 17.1 Parent hereby agrees to become a party to unconditionally guarantees the Indenture as a Guarantor due and in accordance with the amendments to the terms punctual payment and performance of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights Purchaser’s obligations set forth in this Agreement. This guaranty is an irrevocable guaranty of payment (and be subject to all not just of the obligations collection) and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations shall continue in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture effect notwithstanding any extension or renewal modification of the terms of this Agreement, any assumption of any Guaranteed Obligationsuch guaranteed obligation by any other party or any other act or event that might otherwise operate as a legal or equitable discharge of Parent under this Section 17. So long as any obligation of Purchaser to Sellers under this Agreement remains unpaid or undischarged, Parent hereby waives (but only with respect to Sellers and not as to any other parties) all rights to subrogation arising out of any payment by Parent under this Section 17.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. 17.2 The obligations of Holdings under Parent hereunder shall be absolute and unconditional irrespective of the Parent Guarantee shall not be affected by:
i. the failure validity, legality or enforceability of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings this Agreement or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromisedocument related hereto, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by or contingent upon (a) the failure of any Holder liquidation or dissolution of, or the Trustee to assert merger or consolidation of Purchaser with or into any claim corporation, or demand any sale or transfer by Purchaser of all or part of its property or assets, (b) the bankruptcy, receivership, insolvency, reorganization or similar proceedings involving or affecting Purchaser, (c) any modification, alteration, amendment or addition of or to enforce this Agreement, or (d) any remedy under this Indenture, the Notes disability or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance defense of the obligations, Purchaser or by any other act or thing or omission or delay to do person and any other act circumstance whatsoever (with or thing without notice to or knowledge of Parent) which may or might in any manner or to any extent vary the risk risks of Holdings Parent or would might otherwise operate as constitute a legal or equitable discharge of Holdings as a matter of law surety or equitya guarantor or otherwise.
(f) Holdings further agrees that 17.3 Parent hereby waives all special suretyship defenses and protest, notice of protest, demand for performance, diligence, notice of any other action at any time taken or omitted by Sellers and, generally, all demands and notices of every kind in connection with this Section 17 and the Purchaser’s obligations hereby guaranteed, and which Parent Guarantee may otherwise assert against Sellers.
17.4 This Section 17 shall continue to be effective or shall be reinstated, as the case may be, if at any time payment, payment or performance of any part thereof, of principal the obligations of or premium (if any) on or interest on any Guaranteed Obligation the Purchaser under this Agreement is rescinded or must otherwise be restored or returned by any Holder or the Trustee Sellers upon the insolvency, bankruptcy or reorganization of the Company Purchaser or otherwise.
(g) In furtherance 17.5 Parent acknowledges that each of the foregoing waivers set forth above is made with full knowledge of its significance and consequences and under the circumstances the waivers are reasonable and not in limitation contrary to public policy. If any of said waivers is determined to be contrary to any other right which any Holder or the Trustee has at applicable law or in equity against Holdings by virtue hereofpublic policy, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to such waivers shall be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but effective only to the extent not prohibited permitted by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the TrusteeLaw.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Silicon Motion Technology CORP)
Parent Guarantee. (a) Holdings hereby agrees To induce the Buyers to become a party enter into this Agreement, the Sellers’ Guarantors (as primary obligor and not as surety only) irrevocably, absolutely and unconditionally:
(i) guarantee to the Indenture Buyers, on the terms and subject to the conditions of this Section 8.18 (this “Parent Guarantee”), the prompt performance of and compliance with all obligations, covenants, warranties and undertakings (including under Section 6.2) of the Sellers hereunder, including all sums and liabilities which now are or at any other time shall be due, owing or incurred by the Sellers to the Buyers in respect of the Sellers’ obligations under this Agreement (collectively, the “Sellers’ Guaranteed Obligations”); and
(ii) undertakes that if any amount guaranteed by this Section 8.18 is not recoverable on the basis of a guarantee for any reason it will (as a Guarantor separate and independent stipulation) pay the Buyers on demand whatever amount or amounts shall equal what it would have been liable to pay but for such failure to recover and shall indemnify the Buyers against all Losses suffered or incurred by the Buyers in accordance connection with the amendments such failure to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenturerecover.
(b) Holdings further agrees The Sellers’ Guarantors hereby waive promptness, diligence, demand, protest and notice as to the obligations and covenants guaranteed hereby and acceptance of this Parent Guarantee, any requirement that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce Buyers exhaust any right or remedy against Holdings take any action against, or provide notice to, the Sellers or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) before proceeding hereunder and waives any right to require that any resort be had by any Holder other circumstance which might otherwise constitute a defense available to, or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenturea discharge of, the Sellers’ Guarantors obligations of Holdings under with respect to the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim Guarantee. The Sellers’ Guarantors hereby waive all claims of waiver, release, surrender, alteration abstraction or compromisecompromise and all set-offs, and shall not be subject to counterclaims, cross-claims, recoupments or other defenses that they may have against the Buyers except for any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason available to the Sellers that is provided for in this Agreement. The Sellers’ Guarantors agree to pay the reasonable costs and expenses of the invalidity, illegality or unenforceability Buyers in connection with the enforcement of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equityGuarantee.
(fc) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing Each Seller Guarantor represents and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, warrants to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, Buyers as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.follows:
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Easton-Bell Sports, Inc.)
Parent Guarantee. (a) Holdings hereby agrees Subject to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture10.04 hereof, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings Guarantor hereby unconditionally and irrevocably guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 assigns, irrespective of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings validity and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions enforceability of this Indenture, the Notes or any other agreement;
iv. held thereby and the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor Obligations of the Guaranteed Obligations; or
vi. except as set forth Company hereunder and thereunder, that: (a) the principal of and interest on the Notes will be promptly paid in Section 10.05 of the Indenturefull when due, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reductionapplicable grace period, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreementwhether at maturity, by any waiver or modification of any thereofacceleration, by any default, failure or delay, willful redemption or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or and interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon overdue principal on the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing Notes, and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed payment Obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the Trustee.
terms hereof and thereof; and (hb) Holdings in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, the same will be promptly paid in full when due in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantor will be obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Parent Guarantee, and shall entitle the Holders to accelerate the Obligations of the Guarantor hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantor hereby agrees that its Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Parent Guarantee will not be discharged except by complete performance of the Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantor, or any Custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantor, any amount paid by the Company or the Guarantor to the Trustee or such Holder, the Parent Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. The Guarantor agrees that it shall not be entitled to, and hereby waives, any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby. The Guarantor further agrees that, as between itthe Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations Guaranteed guaranteed hereby may be accelerated as provided in Article 6 of the Indenture hereof for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed herebythereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenturehereof, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings the Guarantor for the purposes of Section 10.01 purpose of the IndentureParent Guarantee.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 2 contracts
Samples: Indenture (Avatex Corp), Indenture (Avatex Funding Inc)
Parent Guarantee. (a) Holdings Parent shall take any and all action necessary or appropriate to cause Buyer to perform all of its agreements, covenants and obligations under this Agreement and the Related Documents. Parent hereby agrees to become a party irrevocably and unconditionally guarantees (the “Guarantee”) the full and prompt performance and payment of any and all obligations of Buyer under this Agreement and the Related Documents to the Indenture as a Guarantor and in accordance with the amendments to the terms fullest extent permitted by law, regardless of the Indenture made in Section 2 any defense, right of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the set-off or counterclaim which Parent Guarantee. Holdings shall may have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indentureor assert against Buyer or Seller.
(b) Holdings further agrees that Parent hereby waives notice of acceptance of this Guarantee and of any liability to which it applies or may apply, presentment, demand for payment, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands. Except as otherwise set forth herein, the Guaranteed Obligations may obligations, covenants, agreements and duties of Parent under this Guarantee shall in no way be extended affected or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound impaired by Article 10 reason of the Indenture notwithstanding any extension or renewal happening from time to time of any Guaranteed Obligationof the following:
(i) the release or waiver, by operation of law or otherwise, of the performance or observance by Buyer of any express or implied agreement, covenant, term or condition relating to its obligations under this Agreement and the Related Documents;
(ii) the extension of time for the payment by Buyer of all or any portion of the sums payable under this Agreement and the Related Documents;
(iii) any failure, omission, delay or lack of diligence on the part of Seller to enforce, assert or exercise any right, privilege, power or remedy conferred on it pursuant to the terms of this Agreement and the Related Documents, or any action on the part of Buyer granting indulgence or extension of any kind;
(iv) insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt of, or other similar proceedings affecting, Buyer or any of the assets of Buyer; or
(v) the settlement or compromise of any obligation guaranteed hereby or hereby incurred. There shall be no obligation to Seller to give notice to, or obtain the consent of, Parent with respect to the occurrence of any of the foregoing.
(c) Holdings This is a Guarantee of payment and not of collection. Seller may enforce this Guarantee directly against Parent, and Parent waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort action be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes brought against Buyer or any other agreement, by any waiver person or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equityentity before proceeding against Parent.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Uil Holdings Corp), Asset Purchase Agreement
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as DCP Midstream, LP shall be a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Sixteen of the Original Indenture.
(b) Holdings further agrees that . Upon a default in payment of principal of, or premium, if any, or interest on the Guaranteed Obligations may be extended or renewedNotes, in whole or in partthe Trustee, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 on behalf of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any Holders of the Guaranteed Obligations Notes, may institute legal proceedings directly against the Guarantor to enforce the Guarantee set forth in Article Sixteen of the Original Indenture (as amended and also waives notice supplemented by this Eighth Supplemental Indenture) without first proceeding against the Company. For the purposes of protest for nonpayment. Holdings waives notice of any default under this Eighth Supplemental Indenture and the Notes (including without limitation the provisions of the Original Indenture to the extent applicable thereto), the term “Guarantor” (and such derivative terms as are herein or therein used) shall mean DCP Midstream, LP, and accordingly, the Guaranteed Obligations. The obligations Guarantee of Holdings under DCP Midstream, LP shall be a Guarantee with respect to the Parent Indenture and the Notes; provided, however, that such Guarantee shall not be affected by:
i. apply to any obligations under any series of Securities other than the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
iiNotes. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as To evidence its Guarantee set forth in Section 10.05 Article Sixteen of the Original Indenture (as amended and supplemented by this Eighth Supplemental Indenture), any change the Guarantor hereby agrees that a notation of such Guarantee substantially in the ownership form attached as Annex B hereto will be endorsed by an Officer of Holdings.
(d) Holdings further the Guarantor on each Note authenticated and delivered by the Trustee and that this Eighth Supplemental Indenture will be executed on behalf of the Guarantor by one of its Officers. The Guarantor hereby agrees that the Parent its Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 Article Sixteen of the Original Indenture (as amended and supplemented by this Eighth Supplemental Indenture) will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Guarantee. If an Officer whose signature is on this Eighth Supplemental Indenture or on the Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Guarantee is endorsed, the obligations of Holdings under the Parent Guarantee shall not will be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwisevalid nevertheless. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure The delivery of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand Note by the Trustee, forthwith payafter the authentication thereof hereunder, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations will constitute due delivery of the Company to Guarantee set forth in the Holders and the Trustee.
(h) Holdings further agrees that, as between it, Indenture on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity behalf of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the IndentureGuarantor.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Parent Guarantee. (a) Holdings hereby agrees to become a party to Parent shall cause the Indenture as a Guarantor performance of all of Buyer¶s agreements, covenants and in accordance with the amendments to the terms of the Indenture made in Section 2 of obligations under this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes Agreement and the other Transaction Documents (the ³Buyer Obligations´). Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenturehereby unconditionally, the Notes and the Parent Guarantee. Holdings hereby unconditionally absolutely, continually and irrevocably guarantees to each Holder Seller and to the Trustee and its each Seller¶s respective successors and assigns the Guaranteed Obligations in accordance with Article 10 full and punctual performance, discharge and/or payment, as applicable, of all of the Indenture.
Buyer Obligations (bsuch guarantee, the ³Parent Guarantee´) Holdings further agrees that the Guaranteed Obligations may and shall be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding liable for any extension or renewal breach of any Guaranteed Obligation.
(c) Holdings waives presentation torepresentation, demand ofwarranty, payment from and protest to Holdings covenant, agreement or obligation of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default Buyer under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings this Agreement or any other Person under this Indenture, the Notes or any other agreement or otherwise;
iiTransaction Document. any extension or renewal The Parent Guarantee is a guarantee of any thereof;
iiipayment and performance and not merely collection. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for The Parent Guarantee and the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Parent under this Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance 8.6 shall be valid and compliance when due (enforceable and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment impairment, discharge or termination for any reason, and the liability of Parent under the Parent Guarantee is exclusive and independent of any other guarantee of the Buyer Obligations, whether executed by Parent, by any other guarantor or by any other Person. Without limitation as to the foregoing, no amendment to this Agreement or any of the other Transaction Documents, including an amendment that amends, modifies, extends or accelerates the time or manner of payment and/or performance of any claim of waiverthe Buyer Obligations shall, with or without any notice to or consent of Parent, in any way discharge, terminate, release, surrenderaffect or impair the obligations of Parent under the Parent Guarantee. With respect to the Parent Guarantee, alteration Parent waives (u) notice of the Buyer Obligations and the acceptance of the Parent Guarantee by Sellers, (v) promptness, diligence, protest, presentment, demand for payment, notice of default or compromisenon-payment, notice of dishonor, notice of protest and shall all other notices of any kind, (w) all defenses based on Buyer¶s failure to duly authorize, execute or deliver this Agreement or any other Transaction Documents, based on any claim as to unenforceability of this Agreement or any other Transaction Document or based on any other occurrence or state of facts that would cause any representation or warranty of Buyer under this Agreement or any of the other Transaction Documents not to be subject true and correct, (x) any right to any defense the deferral or modification of setoff, counterclaim, recoupment or termination whatsoever or its obligations under this Section 8.6 and the Parent Guarantee by reason of any bankruptcy, reorganization, arrangement, moratorium or other debtor-relief proceeding and any right to require the invaliditymarshalling of assets of Buyer, illegality (y) all defenses that may be available by virtue of any valuation, stay, moratorium law or unenforceability other Legal Requirement now or hereafter in effect, and (z) all other defenses of a surety or guarantor to which it may be entitled; provided, however, that, except for the Guaranteed Obligationsdefenses described in clause (w) of this sentence, this Indenture, Parent shall be entitled to assert as a defense against the Notes or otherwiseParent Guarantee with respect to any Buyer Obligation any defense that Buyer would be entitled to assert with respect to such Buyer Obligation. Without limiting the generality of limitation as to the foregoing, the obligations of Holdings Parent under this Section 8.6 and the liability of Parent under the Parent Guarantee shall not be discharged reduced, limited, impaired, discharged, terminated or impaired or otherwise affected by (i) any substitution, release or exchange of any other guarantee of or security for any of the Buyer Obligations; (ii) any bankruptcy, insolvency, reorganization, liquidation, dissolution or winding up of Buyer; (iii) any claim, setoff, defense, or other right that Parent may have against any Seller (other than pursuant to this Agreement or any of the other Transaction Documents); (iv) any delay or failure by Sellers in the exercise of their rights and remedies under this Agreement, including under this Section 8.6, or any other Transaction Document; (v) any delay or failure of Sellers to enforce this Agreement or any Holder other Transaction Document against Buyer or the Trustee to assert obtain any claim judgment against Buyer or demand or to pursue any action to enforce any remedy under this Indenture, the Notes or judgment against Buyer; (vi) any other agreement, direction as to application of payment by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Buyer or by any other act or thing or omission or delay to do Person; (vii) any other act continuing or thing which may other guarantee, undertaking or might in maximum liability of a guarantor or of any manner or other Person as to any extent vary of the risk Buyer Obligations; (viii) any payment on or in reduction of Holdings any such other guarantee or would undertaking; (viii) any termination or increase, decrease or change in personnel by Buyer; (ix) any change, reorganization or termination of the corporate or limited liability company structure or existence of Parent or Buyer or any of their Subsidiaries and to any corresponding restructuring of the Buyer Obligations; or (x) any other circumstance whatsoever that might otherwise operate as constitute a legal or equitable discharge or defense of Holdings as a matter surety or guarantor. Parent acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by this Agreement and that the waivers set forth in this Section 8.6 are knowingly made in contemplation of law such benefits. Sellers shall not be obliged to exhaust their recourse against Buyer or equity.
(f) Holdings further agrees any guarantee or security that any Seller may hold before being entitled to performance from Parent of the Buyer Obligations. Parent¶s obligations under the Parent Guarantee shall continue remain in full force and effect until all Buyer Obligations shall have been fully paid, performed, satisfied and discharged. To the extent that Parent or Buyer shall make a payment with respect to any Buyer Obligation, which payment is subsequently invalidated, is declared to be effective fraudulent or preferential, or otherwise is avoided and/or required to be reinstatedrepaid to Parent, Buyer, a trustee, a receiver or any other Person, including under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such avoidance or repayment, the Buyer Obligation or part thereof intended to be satisfied shall be revived and continued in full force and effect as the case if said payment had not been made. Parent shall not exercise any rights of subrogation that it may be, if at any time paymentotherwise have as a result of the Parent Guarantee to the claims of Sellers against Buyer or any other guarantor of any of the Buyer Obligations and any contractual, statutory or common law rights of reimbursement, contribution or indemnity from any such other guarantor which it may at any time otherwise have as a result of the Parent Guarantee until such time as the Buyer Obligations shall have been fully performed, satisfied and discharged. Parent shall not exercise any right to enforce any other remedy which Sellers now have or may hereafter have against any such other guarantor, any endorser or any other guarantor of all or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
Buyer Obligations until such time as the Buyer Obligations shall have been fully paid, performed, satisfied and discharged. This Section 8.6 applies to any assignee of Buyer under Section 12.7 as if references in this Section 8.6 to Buyer were to such assignee (g) In furtherance of and, in the foregoing and not in limitation case of any other right which any Holder or such application of this Section 8.6, the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount term Buyer Obligations means all of such Guaranteed Obligationsassignee's agreements, (2) accrued covenants and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders obligations under this Agreement and the Trusteeother Transaction Documents).
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: Asset Purchase Agreement
Parent Guarantee. (a) Holdings The Parent Guarantor hereby agrees to become a party to unconditionally guarantees the Indenture as a Guarantor and in accordance with the amendments to the terms punctual payment when due, whether at stated maturity, by acceleration or otherwise, of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all monetary obligations of the obligations and agreements of Parent Issuer under the Indenture, the Notes this Twenty-Seventh Supplemental Indenture and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to Notes, whether for principal or interest on the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Notes, expenses, indemnification or otherwise (all such obligations of the IndentureParent Guarantor being herein referred to as the “Parent Guaranteed Obligations”).
(b) Holdings further agrees It is the intention of the Parent Guarantor that the Guaranteed Obligations may Parent Guarantee not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to the Parent Guarantee. To effectuate the foregoing intention, the amount guaranteed by the Parent Guarantor under the Parent Guarantee shall be extended or renewedlimited to the maximum amount as will, in whole or in part, without notice or further assent from Holdings after giving effect to such maximum amount and that Holdings will remain bound by Article 10 all other contingent and fixed liabilities of the Indenture notwithstanding any extension Parent Guarantor that are relevant under such laws, result in the obligations of the Parent Guarantor under the Parent Guarantee not constituting a fraudulent transfer or renewal of any Guaranteed Obligationconveyance.
(c) Holdings waives presentation toThe Parent Guarantor guarantees that the Parent Guaranteed Obligations will be paid strictly in accordance with the terms of this Twenty-Seventh Supplemental Indenture, demand of, payment from and protest to Holdings regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holders of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligationswith respect thereto. The obligations liability of Holdings the Parent Guarantor under the Parent Guarantee shall not be affected byabsolute and unconditional irrespective of:
i. the failure (i) any lack of validity, enforceability or genuineness of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under provision of this Twenty-Seventh Supplemental Indenture, the Notes or any other agreement or otherwiseinstrument relating thereto;
(ii. ) any extension change in the time, manner or renewal place of payment of, or in any thereof;
iii. any rescissionother term of, waiver, amendment all or modification of any of the terms or provisions of this IndentureParent Guaranteed Obligations, the Notes or any other agreementamendment or waiver of or any consent to departure from this Twenty-Seventh Supplemental Indenture;
iv. the (iii) any exchange, release or non-perfection of any security held by collateral, or any Holder release or the Trustee amendment or waiver of or consent to departure from any other guarantee, for the obligations of all or any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Parent Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of (iv) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Indenture, Issuer or any change in the ownership of HoldingsGuarantor.
(d) Holdings further The Parent Guarantor covenants and agrees that its obligation to make payments of the Parent Guarantee Guaranteed Obligations hereunder constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment an unsecured obligation of the Guaranteed ObligationsParent Guarantor ranking pari passu with all existing and future senior unsecured indebtedness of the Parent Guarantor that is not subordinated in right of payment to the Parent Guarantee.
(e) Except as expressly set forth in Sections 8.02 The Parent Guarantor hereby waives promptness, diligence, notice of acceptance and 10.05 of the Indenture, the obligations of Holdings under any other notice with respect to the Parent Guarantee shall not be subject to and any reductionrequirement that the Trustee, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure Holders of any Holder Notes protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Issuer or any other agreement, by Person or any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equitycollateral.
(f) Holdings The Parent Guarantor hereby irrevocably waives any claims or other rights that it may now or hereafter acquire against the Issuer that arise from the existence, payment, performance or enforcement of the Parent Guarantor’s obligations under the Parent Guarantee or this Twenty-Seventh Supplemental Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Trustee, or the Holders of any Notes against the Issuer or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Issuer, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to the Parent Guarantor in violation of the preceding sentence at any time prior to the cash payment in full of the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, such amount shall be held in trust for the benefit of the Trustee and the Holders of any Notes and shall forthwith be paid to the Trustee, to be credited and applied to the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, whether matured or unmatured, in accordance with the terms of this Twenty-Seventh Supplemental Indenture and the Parent Guarantee, or be held as collateral for any Parent Guarantor Obligations or other amounts payable under the Parent Guarantee thereafter arising. The Parent Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Twenty-Seventh Supplemental Indenture and the Parent Guarantee and that the waiver set forth in this Section 10.01 is knowingly made in contemplation of such benefits.
(g) No failure on the part of the Trustee or any Holder of the Notes to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further agrees that exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
(h) The Parent Guarantee is a continuing guarantee and shall (a) subject to paragraph 12.07(i), remain in full force and effect until payment in full of the principal amount of all outstanding Notes (whether by payment at maturity, purchase, redemption, defeasance, retirement or other acquisition) and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing, (b) be binding upon the Parent Guarantor, its successors and assigns, and (c) inure to the benefit of and be enforceable by the Trustee, any Holder of Notes, and by their respective successors, transferees, and assigns.
(i) The Parent Guarantor will automatically and unconditionally be released from all Parent Guarantee Obligations, and the Parent Guarantee shall thereupon terminate and be discharged and of no further force of effect, (i) upon any merger or consolidation of such Parent Guarantor with the Issuer, (ii) upon exercise by the Issuer of its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8 hereof or the discharge of the Issuer’s obligations under this Twenty-Seventh Supplemental Indenture, in accordance with the terms of this Twenty-Seventh Supplemental Indenture, or (iii) upon payment in full of the aggregate principal amount of all Notes then outstanding and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing. Upon any such occurrence specified in this paragraph 12.07(i), the Trustee shall execute upon request by the Issuer, any documents reasonably required in order to evidence such release, discharge and termination in respect of the Parent Guarantee. Neither the Issuer nor the Parent Guarantor shall be required to make a notation on the Notes to reflect the Parent Guarantee or any such release, termination or discharge.
(j) The Parent Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time paymentpayment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Parent Guarantee, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, of principal of is rescinded, reduced, restored or premium (if any) on returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwisereturned.
(gk) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby The Parent Guarantor may be accelerated as provided in Article 6 of the Indenture for the purposes of amend the Parent Guarantee, notwithstanding Guarantee at any stay, injunction or other prohibition preventing such acceleration in respect time for any purpose without the consent of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the IndentureNotes; provided, however, that if such amendment adversely affects (a) the rights of the Trustee or (b) any Holder of the Notes, the prior written consent of the Trustee (in the case of (b), acting at the written direction of the Holders of more than 50% in aggregate principal amount of Notes) shall be required.
Appears in 1 contract
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as DCP Midstream Partners, LP shall be a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the 2015 Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Sixteen of the Original Indenture.
. For the purposes of this First Supplemental Indenture and the 2015 Notes (b) Holdings further agrees that including without limitation the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 provisions of the Original Indenture notwithstanding any extension to the extent applicable thereto), the term “Guarantor” (and such derivative terms as are herein or renewal therein used) shall mean DCP Midstream Partners, LP, and accordingly, the Guarantee of any Guaranteed Obligation.
(c) Holdings waives presentation toDCP Midstream Partners, demand ofLP shall be a Guarantee with respect to the Indenture and the 2015 Notes; provided, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent however, that such Guarantee shall not be affected by:
i. apply to any obligations under any series of Securities other than the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii2015 Notes. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as To evidence its Guarantee set forth in Section 10.05 Article Sixteen of the Original Indenture (as amended and supplemented by this First Supplemental Indenture), any change the Guarantor hereby agrees that a notation of such Guarantee substantially in the ownership form attached as Annex B hereto will be endorsed by an Officer of Holdings.
(d) Holdings further the Guarantor on each 2015 Note authenticated and delivered by the Trustee and that this First Supplemental Indenture will be executed on behalf of the Guarantor by one of its Officers. The Guarantor hereby agrees that the Parent its Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 Article Sixteen of the Original Indenture (as amended and supplemented by this First Supplemental Indenture) will remain in full force and effect notwithstanding any failure to endorse on each 2015 Note a notation of such Guarantee. If an Officer whose signature is on this First Supplemental Indenture or on the Guarantee no longer holds that office at the time the Trustee authenticates the 2015 Note on which a Guarantee is endorsed, the obligations of Holdings under the Parent Guarantee shall not will be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwisevalid nevertheless. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure The delivery of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand 2015 Note by the Trustee, forthwith payafter the authentication thereof hereunder, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations will constitute due delivery of the Company to Guarantee set forth in the Holders and the Trustee.
(h) Holdings further agrees that, as between it, Indenture on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity behalf of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the IndentureGuarantor.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: First Supplemental Indenture (DCP Midstream Partners, LP)
Parent Guarantee. The Guarantor hereby irrevocably, absolutely and unconditionally guarantees to each Seller severally and not jointly and severally the due and punctual payment by the Purchaser of the Purchaser’s obligations under Section 1(c)(ii)-(iii), Section 1(e)(ii), and under Section 4(a) of this Agreement to such Seller (aup to an amount in the aggregate no greater than such Seller’s Payment Amounts) Holdings hereby agrees as and when due and payable pursuant to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 and conditions of this Supplemental Indenture, to be substituted for STX Agreement (as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder Seller, such Seller’s “Guaranteed Obligations”) and agrees that such Seller shall be entitled to enforce directly against the Trustee Guarantor such Seller’s Guaranteed Obligations if the Purchaser fails to pay or perform the Guaranteed Obligations. This guaranty is a guaranty of payment and its successors and assigns not of collection. The Guarantor is guaranteeing the Guaranteed Obligations in accordance with Article 10 of as primary obligor and not merely as surety. If, for any reason whatsoever, the Indenture.
(b) Holdings further agrees that Purchaser shall fail to pay the Guaranteed Obligations may Obligations, the Guarantor will promptly pay or cause to be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or paid the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or Guarantor hereby irrevocably waives diligence, presentment, demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not filing objections with a guarantee of collection) and waives court, any right to require that proceeding first against the Purchaser, any resort be had by any Holder right to require the prior disposition of the assets of the Purchaser to meet its obligations hereunder, lack of validity or the Trustee to any security held for payment unenforceability of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability this guaranty of the Guaranteed Obligations, any rights to set-offs, recoupments and counterclaims (except to the extent the Purchaser or its Affiliates is entitled to such rights pursuant to the express terms of this IndentureAgreement, which rights result in a reduction of the Notes Guaranteed Obligations), notice, protest and all similar demands whatsoever. The guaranty contained in this Section 7(t) shall apply regardless of any amendments, modifications, waivers or otherwiseextensions to this Agreement (but such guaranty shall apply with respect to this Agreement as so amended, modified, waived or extended in accordance with this Agreement), whether or not the Guarantor receives notice of the same and the Guarantor waives all need for notice of the same. Without limiting the generality of Notwithstanding the foregoing, the Guarantor shall have (i) the full benefit of all defenses, counterclaims, reductions, diminutions or limitations available to the Purchaser pursuant to or arising from this Agreement, except for those arising out of (A) any legal limitation, disability or incapacity of the Purchaser and (B) any bankruptcy, insolvency, dissolution or liquidation of the Purchaser, and (ii) the full benefit of and does not waive or relinquish its rights and remedies accorded under, applicable statutes of limitation and repose. The Guarantor’s guaranty of the Guaranteed Obligations is irrevocable and continues for the duration of the Guaranteed Obligations. The Guarantor’s obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay Section 7(t) shall terminate as to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee each Seller upon the bankruptcy or reorganization earlier of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity satisfaction in full of the all of such Seller’s Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) the payment in the event of any declaration of acceleration full of such Guaranteed Obligations Seller’s Payment Amounts. The Guarantor hereby makes to the Purchaser as provided in Article 6 of the Indenturedate hereof and as of the Closing each of the representations and warranties set forth in Section 3 hereof, such Guaranteed Obligations (whether or not due mutatis mutandis, replacing references to “Purchaser” with “Guarantor”. The Guarantor agrees to the terms of Sections 4(b), 4(f), 7(a), 7(f), 7(g), 7(h), 7(i), 7(j), 7(k), 7(l), 7(m), 7(n), 7(o), 7(p), 7(q), 7(r), 7(s) and payable7(u) and that it shall forthwith become due and payable by Holdings be a treated as a party to this Agreement for the purposes of Section 10.01 of the Indenturesuch Sections.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Parent Guarantee. (a) Holdings In order to induce the Lender to extend credit hereunder to Borrower, Parent hereby agrees to become a party to the Indenture irrevocably and unconditionally guarantees, as primary obligor and not merely as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenturesurety, the Notes and the Borrower Obligations. Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the Guaranteed due and punctual payment of the Borrower Obligations may be extended or renewed, in whole or in part, without notice to or further assent from Holdings it, and that Holdings it will remain bound by Article 10 of the Indenture upon its guarantee hereunder notwithstanding any such extension or renewal of any Guaranteed Borrower Obligation.
(c) Holdings . Parent waives presentation presentment to, demand of, of payment from and protest to Holdings Borrower of any of the Guaranteed Obligations Borrower Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee hereunder shall not be affected by:
i. by (a) the failure of any Holder or the Trustee Lender to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person Borrower under the provisions of this Indenture, the Notes or any other agreement Agreement or otherwise;
ii. any extension , (b) change or renewal increase in the amount of any thereof;
iii. of the Borrower Obligations, whether or not consented to by Parent, or (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Agreement or any other agreement;
iv. Parent further agrees that its agreement hereunder constitutes a promise of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the release of any security held by any Holder accrual or the Trustee for the obligations collection of any of them;
v. the failure of any Holder Borrower Obligations or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except operated as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(da discharge thereof) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee merely of collection) , and waives any right to require that any resort be had by any Holder or the Trustee Lender to any security held for payment balance of any deposit account or credit on the Guaranteed Obligations.
(e) Except as expressly set forth books of any bank in Sections 8.02 and 10.05 favor of the Indenture, the any other person. The obligations of Holdings under the Parent Guarantee hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of or setoff, counterclaim, recoupment or termination whatsoever or whatsoever, by reason of the invalidity, illegality or unenforceability of the Guaranteed Borrower Obligations, this Indenture, any impossibility in the Notes performance of the Borrower Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee hereunder shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee Lender to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Agreement or any other agreement, by any waiver or modification in respect of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligationsBorrower Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings Parent or would otherwise operate as a discharge of Holdings Parent or Borrower as a matter of law or equity.
(f) Holdings . Parent further agrees that the Parent Guarantee its obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Borrower Obligation is rescinded or must otherwise be restored by any Holder or the Trustee Lender upon the bankruptcy or reorganization of the Company Borrower or otherwise.
(g) . In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has Lender may have at law or in equity against Holdings Parent by virtue hereof, upon the failure of the Company Borrower to pay the principal of or premium (if any) on or interest on any Guaranteed Borrower Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or to perform or comply with any other Guaranteed Obligationotherwise, Holdings Parent hereby promises to and shallwill, upon receipt of written demand by the TrusteeLender, forthwith pay, or cause to be paid, in cashcash the amount of such unpaid Borrower Obligation. Upon payment by Parent of any Borrower Obligation, the Lender shall, in a reasonable manner, assign the amount of such Borrower Obligation owed to it and so paid to Parent, to the Holders extent to which the Borrower Obligation in question was discharged by Parent, or the Trustee an amount equal make such disposition thereof as Parent shall direct (all without recourse to the sum Lender and without any representation or warranty by the Lender). Upon payment by Parent of (1) the unpaid amount any sums as provided above, all rights of such Guaranteed Obligations, (2) accrued Parent against Borrower arising as a result thereof by way of right of subrogation or otherwise shall in all respects be subordinate and unpaid interest on such Guaranteed Obligations (but only junior in right of payment to the extent not prohibited prior indefeasible payment in full of all the Borrower Obligations owed by law) and (3) all other monetary Guaranteed Obligations of the Company Borrower to the Holders and the TrusteeLender.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (PPL Energy Supply LLC)
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms Article Fourteen of the Original Indenture made in Section 2 of (as amended and supplemented by this Supplemental Indenture, ) shall apply to the Notes. The MLP hereby agrees that it shall be substituted for STX as “Parent” under a Guarantor of each of the Indenture, the 2015 Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the 2040 Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Fourteen of the Original Indenture.
. For the purposes of this Supplemental Indenture and the Notes (b) Holdings further agrees that including without limitation the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 provisions of the Original Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation toto the extent applicable thereto), demand ofthe term “Guarantor” shall mean the MLP, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under accordingly, the Parent Guarantee of the MLP shall be a Securities Guarantee with respect to the Indenture and each of the 2015 Notes and the 2040 Notes; provided, however that such Securities Guarantee shall not be affected by:
i. apply to any obligations under any series of Securities other than the failure of any Holder or 2015 Notes and the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii2040 Notes. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as To evidence its Parent Guarantee set forth in Section 10.05 Article Fourteen of the Original Indenture (as amended and supplemented by this Supplemental Indenture), any change the Guarantor hereby agrees that a notation of such Parent Guarantee substantially in the ownership form attached as Exhibit B hereto will be endorsed by an Officer of Holdings.
(d) Holdings further such Guarantor on each Note authenticated and delivered by the Trustee and that this Supplemental Indenture will be executed on behalf of such Guarantor by one of its Officers. The Guarantor hereby agrees that its Parent Guarantee set forth in Article Fourteen of the Original Indenture (as amended and supplemented by this Supplemental Indenture) will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Parent Guarantee. If an Officer whose signature is on this Supplemental Indenture or on the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require no longer holds that any resort be had by any Holder or office at the time the Trustee to any security held for payment of authenticates the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the IndentureNote on which a Parent Guarantee is endorsed, the obligations of Holdings under the Parent Guarantee shall not will be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwisevalid nevertheless. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure The delivery of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand Note by the Trustee, forthwith payafter the authentication thereof hereunder, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes will constitute due delivery of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration Guarantee set forth in respect the Indenture on behalf of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the IndentureGuarantor.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: Second Supplemental Indenture (El Paso Pipeline Partners, L.P.)
Parent Guarantee. (a) Holdings The Parent Guarantor will hereby agrees to become irrevocably and unconditionally guarantee on a party to the Indenture senior basis, as a Guarantor primary obligor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenturenot merely as a surety, to be substituted for STX as “Parent” under the Indentureeach Holder, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its their successors and assigns (i) the Guaranteed Obligations in accordance with Article 10 full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Indenture.
Companies under this Indenture (bincluding obligations to the Trustee) Holdings and the Securities, whether for payment of principal of, premium, if any, or interest on the Securities and all other monetary obligations of the Companies under this Indenture and the Securities and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Companies whether for fees, expenses, indemnification or otherwise under this Indenture and the Securities (the foregoing obligations set forth in clauses (i) through (ii) being hereinafter collectively called the “Guaranteed Obligations”). The Parent Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings the Parent Guarantor, and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any no extension or renewal of any Guaranteed Obligation.
(c) Holdings Obligation shall release the obligations of the Parent Guarantor hereunder. The Parent Guarantor waives presentation to, demand of, of payment from and protest to Holdings the Companies of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings The Parent Guarantor waives notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee Guarantor hereunder shall not be affected by:
i. by (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings the Companies or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise;
; (ii. ) any extension or renewal of this Indenture, the Securities or any thereof;
other agreement; (iii. ) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement;
; (iv. ) the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. Guaranteed Obligations; or (v) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 The Parent Guarantor hereby waives any right to which it may be entitled to have the assets of the Indenture, Companies first be used and depleted as payment of the Companies’ or the Parent Guarantor’s obligations hereunder prior to any change in amounts being claimed from or paid by the ownership of Holdings.
(d) Holdings Parent Guarantor hereunder. The Parent Guarantor hereby waives any right to which it may be entitled to require that the Companies be sued prior to an action being initiated against the Parent Guarantor. The Parent Guarantor further agrees that the its Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(eb) The Parent Guarantee of the Parent Guarantor is, to the extent and in the manner set forth herein, equal in right of payment to all existing and future unsubordinated Indebtedness of the Parent Guarantor and senior in right of payment to all existing and future subordinated Indebtedness of the Parent Guarantor and is made subject to such provisions of this Indenture.
(c) Except as expressly set forth in Sections 8.02 and 10.05 Section 12.02 of the this Indenture, the obligations of Holdings under the Parent Guarantee Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee Guarantor shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings the Parent Guarantor or would otherwise operate as a discharge of Holdings the Parent Guarantor as a matter of law or equity.
(fd) Holdings The Parent Guarantor agrees that its Parent Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. The Parent Guarantor further agrees that the its Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company Companies or otherwise.
(ge) In furtherance of the foregoing and not in limitation of any other right which any Holder Holder, or the Trustee has at law or in equity against Holdings the Parent Guarantor by virtue hereof, upon the failure of the Company Companies to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, Holdings the Parent Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1i) the unpaid principal amount of such Guaranteed Obligations, (2ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (3iii) all other monetary Guaranteed Obligations obligations of either of the Company Companies to the Holders and the Trustee.
(hf) Holdings The Parent Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. The Parent Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations Guaranteed guaranteed hereby may be accelerated as provided in Article 6 of the Indenture VII for the purposes of the Parent GuaranteeGuarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the IndentureVII, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings the Parent Guarantor for the purposes of this Section 10.01 of the Indenture16.01.
(ig) Holdings The Parent Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01 16.01.
(h) Upon request of the IndentureTrustee, the Parent Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Section 16.01.
(i) For the avoidance of doubt, the Parent Guarantor will not be subject to any of the restrictive covenants contained in this Indenture other than Section 6.04.
Appears in 1 contract
Samples: Indenture (Triton International LTD)
Parent Guarantee. (a) Holdings hereby agrees to become a party to Parent shall cause the Indenture as a Guarantor performance of all of Buyer’s agreements, covenants and in accordance with the amendments to the terms of the Indenture made in Section 2 of obligations under this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes Agreement and the other Transaction Documents (the “Buyer Obligations”). Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenturehereby unconditionally, the Notes and the Parent Guarantee. Holdings hereby unconditionally absolutely, continually and irrevocably guarantees to each Holder Seller and to the Trustee and its each Seller’s respective successors and assigns the Guaranteed Obligations in accordance with Article 10 full and punctual performance, discharge and/or payment, as applicable, of all of the Indenture.
Buyer Obligations (bsuch guarantee, the “Parent Guarantee”) Holdings further agrees that the Guaranteed Obligations may and shall be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding liable for any extension or renewal breach of any Guaranteed Obligation.
(c) Holdings waives presentation torepresentation, demand ofwarranty, payment from and protest to Holdings covenant, agreement or obligation of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default Buyer under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings this Agreement or any other Person under this Indenture, the Notes or any other agreement or otherwise;
iiTransaction Document. any extension or renewal The Parent Guarantee is a guarantee of any thereof;
iiipayment and performance and not merely collection. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for The Parent Guarantee and the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Parent under this Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance 8.6 shall be valid and compliance when due (enforceable and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment impairment, discharge or termination for any reason, and the liability of Parent under the Parent Guarantee is exclusive and independent of any other guarantee of the Buyer Obligations, whether executed by Parent, by any other guarantor or by any other Person. Without limitation as to the foregoing, no amendment to this Agreement or any of the other Transaction Documents, including an amendment that amends, modifies, extends or accelerates the time or manner of payment and/or performance of any claim of waiverthe Buyer Obligations shall, with or without any notice to or consent of Parent, in any way discharge, terminate, release, surrenderaffect or impair the obligations of Parent under the Parent Guarantee. With respect to the Parent Guarantee, alteration Parent waives (u) notice of the Buyer Obligations and the acceptance of the Parent Guarantee by Sellers, (v) promptness, diligence, protest, presentment, demand for payment, notice of default or compromisenon-payment, notice of dishonor, notice of protest and shall all other notices of any kind, (w) all defenses based on Buyer’s failure to duly authorize, execute or deliver this Agreement or any other Transaction Documents, based on any claim as to unenforceability of this Agreement or any other Transaction Document or based on any other occurrence or state of facts that would cause any representation or warranty of Buyer under this Agreement or any of the other Transaction Documents not to be subject true and correct, (x) any right to any defense the deferral or modification of setoff, counterclaim, recoupment or termination whatsoever or its obligations under this Section 8.6 and the Parent Guarantee by reason of any bankruptcy, reorganization, arrangement, moratorium or other debtor-relief proceeding and any right to require the invaliditymarshalling of assets of Buyer, illegality (y) all defenses that may be available by virtue of any valuation, stay, moratorium law or unenforceability other Legal Requirement now or hereafter in effect, and (z) all other defenses of a surety or guarantor to which it may be entitled; provided, however, that, except for the Guaranteed Obligationsdefenses described in clause (w) of this sentence, this Indenture, Parent shall be entitled to assert as a defense against the Notes or otherwiseParent Guarantee with respect to any Buyer Obligation any defense that Buyer would be entitled to assert with respect to such Buyer Obligation. Without limiting the generality of limitation as to the foregoing, the obligations of Holdings Parent under this Section 8.6 and the liability of Parent under the Parent Guarantee shall not be discharged reduced, limited, impaired, discharged, terminated or impaired or otherwise affected by (i) any substitution, release or exchange of any other guarantee of or security for any of the Buyer Obligations; (ii) any bankruptcy, insolvency, reorganization, liquidation, dissolution or winding up of Buyer; (iii) any claim, setoff, defense, or other right that Parent may have against any Seller (other than pursuant to this Agreement or any of the other Transaction Documents); (iv) any delay or failure by Sellers in the exercise of their rights and remedies under this Agreement, including under this Section 8.6, or any other Transaction Document; (v) any delay or failure of Sellers to enforce this Agreement or any Holder other Transaction Document against Buyer or the Trustee to assert obtain any claim judgment against Buyer or demand or to pursue any action to enforce any remedy under this Indenture, the Notes or judgment against Buyer; (vi) any other agreement, direction as to application of payment by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, Buyer or by any other act or thing or omission or delay to do Person; (vii) any other act continuing or thing which may other guarantee, undertaking or might in maximum liability of a guarantor or of any manner or other Person as to any extent vary of the risk Buyer Obligations; (viii) any payment on or in reduction of Holdings any such other guarantee or would undertaking; (viii) any termination or increase, decrease or change in personnel by Buyer; (ix) any change, reorganization or termination of the corporate or limited liability company structure or existence of Parent or Buyer or any of their Subsidiaries and to any corresponding restructuring of the Buyer Obligations; or (x) any other circumstance whatsoever that might otherwise operate as constitute a legal or equitable discharge or defense of Holdings as a matter surety or guarantor. Parent acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by this Agreement and that the waivers set forth in this Section 8.6 are knowingly made in contemplation of law such benefits. Sellers shall not be obliged to exhaust their recourse against Buyer or equity.
(f) Holdings further agrees any guarantee or security that any Seller may hold before being entitled to performance from Parent of the Buyer Obligations. Parent’s obligations under the Parent Guarantee shall continue remain in full force and effect until all Buyer Obligations shall have been fully paid, performed, satisfied and discharged. To the extent that Parent or Buyer shall make a payment with respect to any Buyer Obligation, which payment is subsequently invalidated, is declared to be effective fraudulent or preferential, or otherwise is avoided and/or required to be reinstatedrepaid to Parent, Buyer, a trustee, a receiver or any other Person, including under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such avoidance or repayment, the Buyer Obligation or part thereof intended to be satisfied shall be revived and continued in full force and effect as the case if said payment had not been made. Parent shall not exercise any rights of subrogation that it may be, if at any time paymentotherwise have as a result of the Parent Guarantee to the claims of Sellers against Buyer or any other guarantor of any of the Buyer Obligations and any contractual, statutory or common law rights of reimbursement, contribution or indemnity from any such other guarantor which it may at any time otherwise have as a result of the Parent Guarantee until such time as the Buyer Obligations shall have been fully performed, satisfied and discharged. Parent shall not exercise any right to enforce any other remedy which Sellers now have or may hereafter have against any such other guarantor, any endorser or any other guarantor of all or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
Buyer Obligations until such time as the Buyer Obligations shall have been fully paid, performed, satisfied and discharged. This Section 8.6 applies to any assignee of Buyer under Section 12.7 as if references in this Section 8.6 to Buyer were to such assignee (g) In furtherance of and, in the foregoing and not in limitation case of any other right which any Holder or such application of this Section 8.6, the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount term Buyer Obligations means all of such Guaranteed Obligationsassignee’s agreements, (2) accrued covenants and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders obligations under this Agreement and the Trusteeother Transaction Documents).
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Parent Guarantee. (a) Holdings In order to induce the Banks to extend credit hereunder to Finance Co., Parent hereby agrees to become a party to the Indenture irrevocably and unconditionally guarantees, as primary obligor and not merely as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenturesurety, the Notes and the Finance Co. Obligations. Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the Guaranteed due and punctual payment of the Finance Co. Obligations may be extended or renewed, in whole or in part, without notice to or further assent from Holdings it, and that Holdings it will remain bound by Article 10 of the Indenture upon its Guarantee hereunder notwithstanding any such extension or renewal of any Guaranteed Finance Co. Obligation.
(c) Holdings . Parent waives presentation presentment to, demand of, of payment from and protest to Holdings Finance Co. of any of the Guaranteed Obligations Finance Co. Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee hereunder shall not be affected by:
i. by (a) the failure of any Holder Bank or the Trustee Agent to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person Finance Co. under the provisions of this Indenture, the Notes or any other agreement Agreement or otherwise;
ii. any extension , (b) change or renewal increase in the amount of any thereof;
iii. of the Finance Co. Obligations, whether or not consented to by Parent, or (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Agreement or any other agreement;
iv. Parent further agrees that its agreement hereunder constitutes a promise of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the release of any security held by any Holder accrual or the Trustee for the obligations collection of any of them;
v. the failure of any Holder Finance Co. Obligations or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except operated as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(da discharge thereof) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee merely of collection) , and waives any right to require that any resort be had by any Holder or the Trustee Bank to any security held for payment balance of any deposit account or credit on the Guaranteed Obligations.
(e) Except as expressly set forth books of any Bank in Sections 8.02 and 10.05 favor of the Indenture, the any other person. The obligations of Holdings under the Parent Guarantee hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of or setoff, counterclaim, recoupment or termination whatsoever or whatsoever, by reason of the invalidity, illegality or unenforceability of the Guaranteed Finance Co. Obligations, this Indenture, any impossibility in the Notes performance of the Finance Co. Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee hereunder shall not be discharged or impaired or otherwise affected by the failure of the Agent or any Holder or the Trustee Bank to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Agreement or any other agreement, by any waiver or modification in respect of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligationsFinance Co. Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings Parent or would otherwise operate as a discharge of Holdings Parent or Finance Co. as a matter of law or equity.
(f) Holdings . Parent further agrees that the Parent Guarantee its obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Finance Co. Obligation is rescinded or must otherwise be restored by the Agent or any Holder or the Trustee Bank upon the bankruptcy or reorganization of the Company Finance Co. or otherwise.
(g) . In furtherance of the foregoing and not in limitation of any other right which the Agent or any Holder or the Trustee has Bank may have at law or in equity against Holdings Parent by virtue hereof, upon the failure of the Company Finance Co. to pay the principal of or premium (if any) on or interest on any Guaranteed Finance Co. Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or to perform or comply with any other Guaranteed Obligationotherwise, Holdings Parent hereby promises to and shallwill, upon receipt of written demand by the TrusteeAgent, forthwith pay, or cause to be paid, in cash, to cash the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligationsunpaid Finance Co. Obligation. Upon payment by Parent of any Finance Co. Obligation, (2) accrued each Bank shall, in a reasonable manner, assign the amount of such Finance Co. Obligation owed to it and unpaid interest on so paid to Parent, such Guaranteed Obligations (but only assignment to be pro tanto to the extent not prohibited to which --- ----- the Finance Co. Obligation in question was discharged by law) Parent, or make such disposition thereof as Parent shall direct (all without recourse to any Bank and (3) without any representation or warranty by any Bank). Upon payment by Parent of any sums as provided above, all other monetary Guaranteed Obligations rights of the Company Parent against Finance Co. arising as a result thereof by way of right of subrogation or otherwise shall in all respects be subordinate and junior in right of payment to the Holders and prior indefeasible payment in full of all the TrusteeFinance Co. Obligations owed by Finance Co. to the Banks.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: Revolving Credit Agreement (PPL Electric Utilities Corp)
Parent Guarantee. (a) Holdings hereby agrees Subject to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the IndentureArticle 15, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees guarantees, on a senior unsecured basis, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 assigns, irrespective of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings validity and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions enforceability of this Indenture, the Notes or any other agreement;
iv. held thereby and the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor Obligations of the Guaranteed Obligations; or
vi. except as set forth Issuers hereunder and thereunder, that: (a) the principal of and premium, if any, and interest, if any, on the Notes will be promptly paid in Section 10.05 of the Indenturefull when due, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reductionapplicable grace period, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreementwhether at Stated Maturity, by any waiver acceleration, upon repurchase or modification of any thereof, by any default, failure or delay, willful redemption or otherwise, in and interest on the performance overdue principal of and premium (to the extent permitted by law), interest on the Notes, and all other payment Obligations of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, Issuers to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise. Failing payment when so due of any amount so guaranteed for whatever reason, the Parent will be obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an amount equal event of default under the Parent Guarantee, and shall entitle the Holders to accelerate the obligations of the Parent hereunder in the same manner and to the sum same extent as the Obligations of the Issuers. The Parent hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against an Issuer, any action to enforce the same or any other circumstance (1other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of the unpaid amount of such Guaranteed ObligationsParent. The Parent further, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited permitted by law) , hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of an Issuer, any right to require a proceeding first against an Issuer, protest, notice and (3) all other monetary Guaranteed Obligations demands whatsoever and covenants that its Parent Guarantee will not be discharged except by complete performance of the Company Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to an Issuer, the Parent, or any Custodian, Trustee or other similar official acting in relation to any of the Issuers or the Parent, any amount paid by an Issuer or the Parent to the Trustee or such Holder, the Parent Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. The Parent agrees that it shall not be entitled to, and hereby waives, any right of subrogation in relation to the Holders and the Trustee.
(h) Holdings in respect of any Obligations guaranteed hereby. The Parent further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Guaranteed Obligations Guaranteed guaranteed hereby may be accelerated as provided in Article 6 of the Indenture 5 hereof for the purposes of the its Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed herebythereby, and (yb) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture5 hereof, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings the Parent for the purposes purpose of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.its Parent Guarantee..
Appears in 1 contract
Samples: Indenture (Ellington Financial Inc.)
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to the Sellers, each Holder Seller Indemnified Party and to the Trustee and its their respective successors and permitted assigns the Guaranteed Obligations due and punctual payment in accordance with Article 10 full of each obligation (each, an "Obligation" and collectively, the "Obligations") of the IndenturePurchaser under this Agreement and the Purchaser Ancillary Documents. Parent agrees that if for any reason whatsoever the Purchaser shall fail or be unable to duly, punctually and fully pay any Obligation, Parent shall unconditionally pay the Obligation. Nothing shall discharge or satisfy the liability of Parent under the guarantee contained in this Section 12.14 except the full payment of the Obligations. The guarantee contained in this Section 12.14 constitutes a guarantee of payment when due and not of collection.
(b) Holdings further agrees that Subject to Section 12.14(d), the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings Parent under the Parent Guarantee this Section 12.14 shall not be subject to any reduction, limitation, impairment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any Obligation. Without limiting the generality of the foregoing, the obligations of Parent under the guarantee contained in this Section 12.14 shall not be discharged or impaired or otherwise affected by:
i. , (i) the failure of any Holder or the Trustee Seller to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
Section 12.14; (ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance payment of the obligations, all or by any part of any Obligation; or (iii) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings Parent or which would otherwise operate as a discharge of Holdings a guarantor as a matter of law law, and Parent hereby waives (x) all presentments, demands for payment to the Purchaser, notices of protest for non-payment, notices of default, any other notice, any proof of reliance by any Seller upon the guarantee contained in this Section 12.14 or equityacceptance of the guarantee contained herein and all other formalities; (y) any rights to set-off, recoupments, claims, counterclaims; and (z) any right to revoke or terminate this guarantee.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(gc) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has Sellers may have at law or in equity against Holdings Parent by virtue hereofof the guarantee contained in this Section 12.14, upon the failure of the Company Purchaser to pay the principal of or premium (if any) on or interest on make any Guaranteed Obligation when or payment pursuant to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to when and shallas the same shall become due whether at closing, upon receipt of written demand by the Trusteeunder any provision contained in this Agreement, forthwith payany Ancillary Document or otherwise, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of Parent shall pay such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the TrusteeObligation.
(hd) Holdings further agrees thatNotwithstanding anything to the contrary set forth in this Section 12.14, Parent shall have the right to assert as between it, on a defense to any of its obligations hereunder any defense or exercise of rights that would be available to it had it entered into the one hand, and Obligations directly in the Holders and the Trustee, on the other hand, (x) the maturity place of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the IndenturePurchaser.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: Stock Purchase Agreement (CNF Inc)
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments Subject to the terms and conditions set forth herein, each of the Indenture made in Section 2 of this Supplemental IndentureParent Guarantors hereby, to be substituted for STX as “Parent” under the Indenturejointly and severally, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the Guaranteed Obligations validity and enforceability of the applicable Indenture, the applicable Notes or the obligations of the Issuers thereunder, that:
(1) the principal of and premium, if any, and interest on, the Notes will be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Issuers to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with Article 10 of the Indenture.terms hereof and thereof; and
(b2) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 case of the Indenture notwithstanding any extension of time of payment or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any of such other agreement obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise;
ii. any extension or renewal Failing payment when due of any thereof;
iii. amount so guaranteed or any rescission, waiver, amendment or modification of any of the terms or provisions of this Indentureperformance so guaranteed for whatever reason, the Notes or any other agreement;
ivParent Guarantors will be jointly and severally obligated to pay the same immediately. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further Each Parent Guarantor agrees that the Parent Guarantee constitutes this is a guarantee of payment, performance and compliance when due (payment and not a guarantee of collection.
(b) and The Parent Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes or the applicable Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Parent Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenant that any resort this Parent Guarantee will not be had discharged except by complete performance of the obligations contained in the Notes and the applicable Indenture or as otherwise provided herein or therein.
(c) If any Holder or the Trustee is required by any court or otherwise to return to any security held for payment of the Guaranteed ObligationsIssuers, the Parent Guarantors, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to any of the Issuers, the Parent Guarantors or the Guarantors, any amount paid by any of them to the Trustee or such Holder, this Parent Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(ed) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Each Parent Guarantee shall Guarantor agrees that it will not be subject entitled to any reduction, limitation, impairment or termination for any reason, including any claim right of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, subrogation in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, relation to the Holders or the Trustee an amount equal to the sum in respect of (1) the unpaid amount any obligations guaranteed hereby until payment in full of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings obligations guaranteed hereby. Each Parent Guarantor further agrees that, as between itthe Parent Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x1) the maturity of the Guaranteed Obligations Guaranteed obligations guaranteed hereby may be accelerated as provided in Article 6 of the applicable Indenture for the purposes of the this Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations obligations guaranteed hereby, and (y2) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6 of the applicable Indenture, such Guaranteed Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by Holdings the Parent Guarantors for the purposes purpose of Section 10.01 this Parent Guarantee. The Parent Guarantors will have the right to seek contribution from any non-paying Parent Guarantor so long as the exercise of such right does not impair the rights of the IndentureHolders under this Parent Guarantee.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Parent Guarantee. So long (aand only so long) Holdings as the Company is Non-Reporting, Parent Guarantor hereby agrees unconditionally guarantees (such guarantee to become a party be referred to the Indenture herein as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees ”) to each Holder of Securities of each series authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the Guaranteed Obligations validity and enforceability of this Indenture, such Securities or the obligations of the Company hereunder or thereunder, (i) the due and punctual payment of the principal of and any premium or interest on such Securities, whether at maturity or on an interest payment date, by acceleration, pursuant to an offer to purchase such Securities or otherwise, and interest on the overdue principal of and interest, if any, on such Securities, if lawful, and all other obligations of the Company to the Holders of such Securities or the Trustee hereunder or thereunder shall be promptly paid in full, all in accordance with Article 10 the terms hereof and thereof including all amounts payable to the Trustee under Section 607 hereof, and (ii) in case of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension of time of payment or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation tosuch Securities or any of such other obligations, demand ofthe same shall be promptly paid in full when due or to be performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. If the Company fails to make any payment from and protest to Holdings when due of any of the Guaranteed Obligations and also waives notice of protest amount so guaranteed for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenturewhatever reason, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due so long (and not a guarantee of collectiononly so long) as the Company is Non-Reporting, Parent Guarantor shall be obligated to pay the same immediately. Parent Guarantor hereby agrees that, so long (and waives any right to require that any resort only so long) as the Company is Non-Reporting, its obligations hereunder shall be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 continuing, absolute and 10.05 of the Indentureunconditional, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromiseirrespective of, and shall not be subject to any defense of setoffunaffected by, counterclaimthe validity, recoupment regularity or termination whatsoever or by reason enforceability of the invalidity, illegality or unenforceability of the Guaranteed ObligationsSecurities, this Indenture, the Notes absence of any action to enforce the same, any waiver or otherwise. Without limiting the generality consent by any Holder of the foregoingSecurities or the Trustee with respect to any provisions hereof or thereof, the obligations recovery of Holdings under any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of Parent Guarantor. Parent Guarantor hereby waives diligence, presentment, demand of payment, demand of performance, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, the benefit of discussion, protest, notice and all demand whatsoever and covenants that, so long (and only so long) as the Company is Non-Reporting, its Parent Guarantee shall not be discharged or impaired or otherwise affected except by complete performance of the obligations contained in the Securities guaranteed by the failure of Parent Guarantee, in this Indenture and in this Article Fifteen. If any Holder of Securities or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, is required by any waiver court or modification of any thereof, by any default, failure otherwise to return to the Company or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time paymentGuarantor, or any part thereofcustodian, of principal of trustee, liquidator or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of other similar official acting in relation to the Company or otherwise.
(g) In furtherance of Parent Guarantor, any amount paid by the foregoing and not in limitation of any other right which any Holder Company or Parent Guarantor to the Trustee has at law or in equity against Holdings by virtue hereofsuch Holder, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cashthis Article Fifteen, to the Holders or the Trustee an amount equal extent theretofore discharged with respect to the sum of Parent Guarantee, so long (1and only so long) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of as the Company is Non-Reporting, shall be reinstated in full force and effect. Parent Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders and the Trustee.
(h) Holdings of Securities of a series guaranteed hereby by Parent Guarantor in respect of any obligations guaranteed hereby by such Parent Guarantee until payment in full of all such obligations. Parent Guarantor further agrees that, as between itParent Guarantor, on the one hand, and the Holders of Securities and the Trustee, Trustee on the other hand, (xi) the maturity of the Guaranteed Obligations Guaranteed obligations guaranteed hereby by such Parent Guarantee may be accelerated as provided in Article 6 of the Indenture Five hereof for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations obligations guaranteed hereby, hereby and (yii) so long (and only so long) as the Company is Non-Reporting, in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6 of the IndentureFive hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by Holdings such Parent Guarantor for the purposes purpose of Section 10.01 this Article Fifteen. In addition, without limiting the foregoing, upon the effectiveness of an acceleration under Article Five, so long (and only so long) as the Company is Non-Reporting, the Trustee may make a demand for payment on the Securities under the Parent Guarantee thereof to the extent not discharged. Parent Guarantor shall be subrogated to all rights of the Indenture.
(i) Holdings also agrees Holder of any Securities guaranteed hereby by the Parent Guarantee against the Company in respect of any amounts paid to pay such Holder by Parent Guarantor pursuant to the provisions of the Parent Guarantee; provided that Parent Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and interest on all costs and expenses (including reasonable attorneys’ fees and expenses) incurred such Securities shall have been paid in full. The Parent Guarantee provided in this Section 1501 shall not be valid or become obligatory for any purpose with respect to a Security unless the certificate of authentication on such Security shall have been signed by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indentureduly appointed agent.
Appears in 1 contract
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor and in accordance In connection with the amendments transactions contemplated by this Agreement, Parent hereby irrevocably, absolutely and unconditionally guarantees the due, punctual and complete performance and payment (and not merely collection) in full of all obligations and liabilities of the Entities, NIIH and its Affiliates under this Agreement and the Company Share Transfer Agreement, and all obligations and liabilities of the Company under the Nextel Holdings Share Transfer Agreement, as and when due and payable or required to be performed pursuant to any provisions of this Agreement, the Nextel Holdings Share Transfer Agreement and the Company Share Transfer Agreement, subject to the terms and conditions hereof and thereof (the “Guaranteed Obligations”) and agrees that Purchaser and AI Brazil shall be entitled to enforce directly against Parent any of the Indenture made in Section 2 of this Supplemental IndentureGuaranteed Obligations. To the fullest extent permitted by applicable Law, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation presentment to, demand of, of payment from and protest to Holdings any other Person of any of the Guaranteed Obligations Obligations, and also waives notice of acceptance of its guarantee and notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of or setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting In the generality of the foregoing, the obligations of Holdings under the event that Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver of its successors or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
assigns (i) Holdings also agrees consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) other than as contemplated by this Agreement, transfers or conveys all or substantially all of its properties and other assets to pay any Person, then, and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by in each such case, Parent shall cause proper provision to be made so that such successor or assign shall expressly assume the Trustee or any Holder obligations set forth in enforcing any rights under this Section 10.01 of the Indenture13.11.
Appears in 1 contract
Parent Guarantee. (a) Holdings For value received, Parent hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenturefully, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder Seller (the “Parent Guarantee”) (x) the prompt and punctual payment of any amount Purchaser is required to pay under this Agreement, when and as the same shall become due and payable, subject as to such payment obligations to the Trustee terms and its successors and assigns conditions of this Agreement, including, without limitation, the Guaranteed Obligations in accordance with Article 10 payment of the IndenturePurchase Price as provided by Section 1.6, and (y) the prompt and full performance when due by Purchaser of its obligations up to and through Closing under this Agreement. Parent’s guarantee obligations include the principal, interest, fines, fees, costs and other amounts that may be due and payable by Purchaser under this Agreement.
(b) Holdings further The Parent Guarantee is a first demand guarantee and shall constitute an autonomous and independent obligation of Parent not being ancillary to the obligations of Purchaser under this Agreement. Parent hereby agrees that the Guaranteed Obligations may to cause any such payment or performance to be extended made as if such payment or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound payment were made by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed ObligationPurchaser.
(c) Holdings Parent hereby waives presentation todiligence, presentment, demand ofof payment, filing of claims with a court in the event of a merger or bankruptcy of Purchaser, any right to require a proceeding first against Purchaser, protest or notice with respect to any amount payable by Purchaser under this Agreement and all demands whatsoever, and covenants that the Parent Guarantee will not be discharged except by (i) termination of this Agreement according to its terms, (ii) payment from in full of all amounts due and protest to Holdings payable under this Agreement, (iii) performance in full of all obligations due under this Agreement and (iv) payment of any Damages.
(d) The applicability of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. or impaired by any of the following: (i) any extension of time, forbearance or concession given to Purchaser; (ii) any assertion of, or failure of to assert, or delay in asserting, any Holder or the Trustee to assert any claim or demand or to enforce any right right, power or remedy against Holdings Purchaser; (iii) any amendment of the provisions of this Agreement; (iv) any failure of Purchaser to comply with any requirement of any Law; (v) the dissolution, liquidation, reorganization or any other Person under alteration of the legal structure of Purchaser; (vi) any invalidity or unenforceability of any provision of this Indenture, the Notes Agreement; or (vii) any other agreement circumstance (other than complete payment by Purchaser or otherwise;
ii. any extension Parent) which might otherwise constitute a legal or renewal equitable discharge or defense of any thereof;
iii. any rescission, waiver, amendment a surety or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligationsguarantor.
(e) Except as expressly set forth in Sections 8.02 Parent shall be subrogated to all rights of Purchaser against Seller based on and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited of any amounts paid to Seller by law) and (3) all other monetary Guaranteed Obligations of the Company Parent pursuant to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes provisions of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Parent Guarantee. (a) Holdings In order to induce the Banks to extend credit hereunder to Borrower, Parent hereby agrees to become a party to the Indenture irrevocably and unconditionally guarantees, as primary obligor and not merely as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenturesurety, the Notes and the Borrower Obligations. Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the Guaranteed due and punctual payment of the Borrower Obligations may be extended or renewed, in whole or in part, without notice to or further assent from Holdings it, and that Holdings it will remain bound by Article 10 of the Indenture upon its Guarantee hereunder notwithstanding any such extension or renewal of any Guaranteed Borrower Obligation.
(c) Holdings . Parent waives presentation presentment to, demand of, of payment from and protest to Holdings Borrower of any of the Guaranteed Obligations Borrower Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee hereunder shall not be affected by:
i. by (a) the failure of any Holder Bank or the Trustee Agent to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person Borrower under the provisions of this Indenture, the Notes or any other agreement Agreement or otherwise;
ii. any extension , (b) change or renewal increase in the amount of any thereof;
iii. of the Borrower Obligations, whether or not consented to by Parent, or (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Agreement or any other agreement;
iv. Parent further agrees that its agreement hereunder constitutes a promise of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the release of any security held by any Holder accrual or the Trustee for the obligations collection of any of them;
v. the failure of any Holder Borrower Obligations or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except operated as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(da discharge thereof) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee merely of collection) , and waives any right to require that any resort be had by any Holder or the Trustee Bank to any security held for payment balance of any deposit account or credit on the Guaranteed Obligations.
(e) Except as expressly set forth books of any Bank in Sections 8.02 and 10.05 favor of the Indenture, the any other person. The obligations of Holdings under the Parent Guarantee hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of or setoff, counterclaim, recoupment or termination whatsoever or whatsoever, by reason of the invalidity, illegality or unenforceability of the Guaranteed Borrower Obligations, this Indenture, any impossibility in the Notes performance of the Borrower Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee hereunder shall not be discharged or impaired or otherwise affected by the failure of the Agent or any Holder or the Trustee Bank to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Agreement or any other agreement, by any waiver or modification in respect of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligationsBorrower Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings Parent or would otherwise operate as a discharge of Holdings Parent or Borrower as a matter of law or equity.
(f) Holdings . Parent further agrees that the Parent Guarantee its obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Borrower Obligation is rescinded or must otherwise be restored by the Agent or any Holder or the Trustee Bank upon the bankruptcy or reorganization of the Company Borrower or otherwise.
(g) . In furtherance of the foregoing and not in limitation of any other right which the Agent or any Holder or the Trustee has Bank may have at law or in equity against Holdings Parent by virtue hereof, upon the failure of the Company Borrower to pay the principal of or premium (if any) on or interest on any Guaranteed Borrower Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or to perform or comply with any other Guaranteed Obligationotherwise, Holdings Parent hereby promises to and shallwill, upon receipt of written demand by the TrusteeAgent, forthwith pay, or cause to be paid, in cash, to cash the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligationsunpaid Borrower Obligation. Upon payment by Parent of any Borrower Obligation, (2) accrued each Bank shall, in a reasonable manner, assign the amount of such Borrower Obligation owed to it and unpaid interest on so paid to Parent, such Guaranteed Obligations (but only assignment to be pro tanto to the extent not prohibited to which --- ----- the Borrower Obligation in question was discharged by law) Parent, or make such disposition thereof as Parent shall direct (all without recourse to any Bank and (3) without any representation or warranty by any Bank). Upon payment by Parent of any sums as provided above, all other monetary Guaranteed Obligations rights of the Company Parent against Borrower arising as a result thereof by way of right of subrogation or otherwise shall in all respects be subordinate and junior in right of payment to the Holders and prior indefeasible payment in full of all the TrusteeBorrower Obligations owed by Borrower to the Banks.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Parent Guarantee. (a) Holdings The Parent Guarantor hereby agrees to become a party fully, irrevocably and unconditionally guarantees (the "Parent Guarantee") the payment of the principal (including premium, if any) of and any interest (together with any additional amounts payable in respect of withholding for or on account of taxes and other governmental charges, to the Indenture as a Guarantor same extent, and in accordance with the amendments subject to the terms of same limitations and requirements under, this Indenture that would be required under this Indenture if the Indenture payment were being made in Section 2 of this Supplemental Indentureby the Company) on each Guaranteed Debt Security, as the same shall become due and payable after any applicable grace period (whether at maturity or upon redemption, declaration or otherwise), to be substituted for STX as “Parent” each Securityholder entitled to receive such payments under the Guaranteed Debt Securities (as determined by this Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder ) and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the IndentureTrustee.
(b) Holdings further The Parent Guarantor hereby agrees that the Guaranteed Obligations may its obligations hereunder shall be extended or renewedirrevocable and unconditional, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 irrespective of the Indenture notwithstanding any extension validity, legality or renewal enforceability of any Guaranteed ObligationDebt Security to which the Parent Guarantee applies, the absence of any action to enforce such Guaranteed Debt Security, the recovery of any judgment against the Company or any action to enforce the same or any insolvency, bankruptcy, reorganization or similar proceeding of or with respect to the Company or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. The Parent Guarantor hereby expressly waives, to the fullest extent permitted by applicable law, all rights of setoff, recoupment and counterclaim (provided that nothing herein shall prevent the assertions of such claims by separate suit or compulsory counterclaim), the benefit of any statute of limitations affecting the Parent Guarantor's liability hereunder, diligence, presentment, demand of payment, filing of claims with a court in the event of merger or insolvency, bankruptcy, reorganization or similar proceeding of or with respect to the Company, any right to require a proceeding first against the Company, protest or notice with respect to said Guaranteed Debt Security or the indebtedness evidenced thereby and all demands whatsoever and covenants that the Parent Guarantee will not be discharged except by complete performance of the obligations contained in the Parent Guarantee. The Parent Guarantor hereby further expressly waives all other defenses or benefits with respect to the Parent Guarantee that may be afforded by applicable law limiting the liability of or exonerating guarantors as sureties.
(c) Holdings waives presentation toAn Event of Default under, demand of, non-payment from and protest to Holdings of or acceleration of any series of the Guaranteed Obligations Debt Securities shall entitle the Securityholders thereof to exercise their rights and also waives notice of protest for nonpayment. Holdings waives notice of any default under remedies against the Notes or the Guaranteed Obligations. The obligations of Holdings Parent Guarantor under the Parent Guarantee shall not be affected by:
i. in the failure of any Holder or same manner and to the Trustee same extent as they have the right to assert any claim or demand or to enforce any right or remedy do so against Holdings or any other Person the Company under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or Indenture as originally executed (as amended pursuant to its terms). If any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation Debt Security is rescinded or must otherwise be restored by any Holder or the Trustee returned upon the bankruptcy insolvency, bankruptcy, reorganization or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal similar proceeding of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, respect to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed ObligationsCompany, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing Guarantor's obligations hereunder with respect to such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of payment will be reinstated as though such Guaranteed Obligations as provided in Article 6 of the Indenture, payment has been due but not made at such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenturetime.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: Global Supplemental Indenture (General Electric Co)
Parent Guarantee. (a) Holdings Parent irrevocably guarantees each and every covenant and obligation of Seller and the full and timely performance of Seller’s obligations under the provisions of this Agreement. This is a guaranty of performance, and not of collection, and Parent acknowledges and agrees that this guaranty is full and unconditional, and no release or extinguishments of Seller’s liabilities, whether by decree in any bankruptcy proceeding or otherwise, will affect the continuing validity and enforceability of this guaranty. Parent hereby agrees waives, for the benefit of each Purchaser Indemnified Person, (i) any right to become require any Purchaser Indemnified Person as a party condition of performance of Parent to proceed against Seller or pursue any other remedies whatsoever and (ii) to the Indenture as a Guarantor and in accordance with fullest extent permitted by applicable Law, any defenses or benefits that may be derived from or afforded by law that limit the amendments liability of or exonerate guarantors or sureties, except to the terms of the Indenture made extent that any such defense is available to Seller. Parent understands that Purchaser is relying on this guaranty in Section 2 of entering into this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the IndentureAgreement.
(b) Holdings further agrees that Parent hereby represents and warrants to Purchaser that: (i) Parent is duly organized, validly existing and in good standing under the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 laws of the Indenture notwithstanding any extension or renewal State of any Guaranteed Obligation.
Delaware, (cii) Holdings waives presentation to, demand of, payment from Parent has full power and protest authority to Holdings of any of the Guaranteed Obligations execute and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The deliver this Agreement and to perform its obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indentureguaranty and Sections 2.1 and 8.3, (iii) the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions execution and delivery by Parent of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance Agreement and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of its obligations under this guaranty and Sections 2.1 and 8.3 have been duly authorized by all requisite corporate action on the obligationspart of Parent and (iv) this Agreement has been duly executed and delivered by Parent, and this guaranty and Sections 2.1 and 8.3 constitutes legal, valid and binding obligations of Parent, enforceable against Parent in accordance with its terms, except as enforceability may be affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or by any other act or thing or omission or delay to do any other act or thing which may or might affecting creditors’ rights generally, general equitable principles (whether considered in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or proceeding in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by at law) and (3) all other monetary Guaranteed Obligations the implied covenant of the Company to the Holders good faith and the Trusteefair dealing.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as DCP Midstream, LP shall be a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Sixteen of the Original Indenture.
(b) Holdings further agrees that . Upon a default in payment of principal of, or premium, if any, or interest on the Guaranteed Obligations may be extended or renewedNotes, in whole or in partthe Trustee, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 on behalf of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any Holders of the Guaranteed Obligations Notes, may institute legal proceedings directly against the Guarantor to enforce the Guarantee set forth in Article Sixteen of the Original Indenture (as amended and also waives notice supplemented by this Ninth Supplemental Indenture) without first proceeding against the Company. For the purposes of protest for nonpayment. Holdings waives notice of any default under this Ninth Supplemental Indenture and the Notes (including without limitation the provisions of the Original Indenture to the extent applicable thereto), the term “Guarantor” (and such derivative terms as are herein or therein used) shall mean DCP Midstream, LP, and accordingly, the Guaranteed Obligations. The obligations Guarantee of Holdings under DCP Midstream, LP shall be a Guarantee with respect to the Parent Indenture and the Notes; provided, however, that such Guarantee shall not be affected by:
i. apply to any obligations under any series of Securities other than the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
iiNotes. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as To evidence its Guarantee set forth in Section 10.05 Article Sixteen of the Original Indenture (as amended and supplemented by this Ninth Supplemental Indenture), any change the Guarantor hereby agrees that a notation of such Guarantee substantially in the ownership form attached as Annex B hereto will be endorsed by an Officer of Holdings.
(d) Holdings further the Guarantor on each Note authenticated and delivered by the Trustee and that this Ninth Supplemental Indenture will be executed on behalf of the Guarantor by one of its Officers. The Guarantor hereby agrees that the Parent its Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 Article Sixteen of the Original Indenture (as amended and supplemented by this Ninth Supplemental Indenture) will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Guarantee. If an Officer whose signature is on this Ninth Supplemental Indenture or on the Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Guarantee is endorsed, the obligations of Holdings under the Parent Guarantee shall not will be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwisevalid nevertheless. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure The delivery of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand Note by the Trustee, forthwith payafter the authentication thereof hereunder, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations will constitute due delivery of the Company to Guarantee set forth in the Holders and the Trustee.
(h) Holdings further agrees that, as between it, Indenture on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity behalf of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the IndentureGuarantor.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Parent Guarantee. (a) Holdings Parent hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indentureabsolutely, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder Seller the full and prompt performance of all of Buyer’s obligations set forth in this Agreement and payment of all amounts required to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound paid by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except Buyer as set forth in Section 10.05 of this Agreement, (collectively, the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee “Buyer Guaranteed Obligations”). The foregoing constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection. The liability of Parent hereunder is direct and unconditional, and may be enforced without requiring Seller first to resort to any other right, remedy, or security. Seller agrees to give Parent written notice of any failure of Buyer to perform any of Buyer Guaranteed Obligations (provided, however, that any delay of Seller in providing such written notice shall not affect Parent’s obligations hereunder except to the extent Parent has been adversely affected or prejudiced by such delay). Other than as set forth in the previous sentence, Parent hereby waives all rights of notice or demand, including without limitation presentment, demand for payment and protest of any instrument, and notice of dishonor or nonpayment, notice of default or nonpayment by Buyer and all other notices to which Parent may otherwise be entitled. In addition, Parent waives all suretyship defenses it may have, whether now or in the future, including without limitation: (i) any lack of validity, regularity or enforceability of this Section 12.17; (ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the Buyer Guaranteed Obligations, or any other amendment or waiver of, or any consent to depart from, the terms of the Agreement; (iii) any failure on the part of Seller to exercise, or any delay in exercising, any right under the Agreement; or (iv) any other circumstance which might otherwise constitute a defense available to, or a discharge of, Parent with respect to the Buyer Guaranteed Obligations or the obligations of Parent under this Section 12.17. Parent waives notice and proof of reliance by Seller on this Section and all of the Buyer Guaranteed Obligations shall conclusively be deemed to have been created, incurred, renewed, extended, amended and/or waived in reliance upon Parent’s obligations in this Section 12.17. Parent also waives any right to require that seek contribution, indemnification, subrogation or reimbursement from Buyer, until all of Buyer Guaranteed Obligations have been indefeasibly paid in full. The execution of this Agreement by and on behalf of Parent has been authorized by all necessary corporate action and will not violate Parent’s charter or by-laws or any resort be had by any Holder material agreement, instrument, order, judgment or the Trustee decree to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever which it is a party or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equityit is bound.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: Asset Purchase Agreement (New Media Investment Group Inc.)
Parent Guarantee. (a) Holdings hereby agrees to become a party Subject to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 provisions of this Supplemental IndentureArticle 3, to be substituted for STX Parent fully and unconditionally Guarantees, on a subordinated basis as “Parent” under the Indentureset forth more fully in Article 4, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder of Securities hereunder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 on behalf of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected byHolders:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount due and punctual payment of such Guaranteed Obligationsthe principal of, (2) accrued premium, if any, and unpaid interest on such Guaranteed Obligations (but only to each Security, when and as the extent not prohibited same shall become due and payable, whether at maturity, by law) acceleration or otherwise, and (3) the due and punctual performance of all other monetary Guaranteed Obligations obligations of the Company to the Holders or the Trustee, all in accordance with the terms of the Security and the Trustee.
Indenture and (h2) Holdings in the case of any extension of time of payment or renewal of any Securities or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, at Stated Maturity, by acceleration or otherwise, subject, however, in the case of clauses (1) and (2) above, to the limitations set forth in the next succeeding paragraph (the "Parent Guarantee"). Parent by its acceptance hereof and each Holder hereby confirms that it is the intention of all such parties that the Parent Guarantee pursuant to this Section 3.01 not constitute a fraudulent transfer or conveyance for purposes of the United States Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. To effectuate the foregoing intention, the Holders and Parent hereby irrevocably agree that the obligations of Parent under the Parent Guarantee shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed, liabilities of Parent, result in the obligations of Parent under the Parent Guarantee not constituting such fraudulent transfer or conveyance. Parent hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company, the benefit of discussion, protest or notice with respect to any such Security or the debt evidenced thereby and all demands whatsoever (except as specified above), and covenants that the Parent Guarantee will not be discharged as to any such Security except by payment in full of the principal thereof and interest thereon or as provided in Section 9.01 of the Indenture. In the event of any declaration of acceleration of such obligations as provided in Article 7 of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by Parent for the purposes of this Article 3. In addition, without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article 7 of the Indenture, the Trustee shall promptly make a demand for payment on the Securities under the Parent Guarantee provided for in this Article 3. If the Trustee or the Holder is required by any court or otherwise to return to the Company or Parent, or any custodian, receiver, liquidator, trustee, sequestrator or other similar official acting in relation to Company or Parent, any amount paid to the Trustee or such Holder in respect of a Security, the Parent Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Parent further agrees agrees, to the fullest extent that it may lawfully do so, that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations Guaranteed hereby may be accelerated as provided in Article 6 7 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition extant under any applicable bankruptcy law preventing such acceleration in respect of the obligations Guaranteed Obligations guaranteed hereby. Parent shall be subrogated to all rights of the Holders of any Security against the Company in respect to any amounts paid by Parent to such Holder pursuant to the provisions of the Parent Guarantee; provided, that Parent shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of, premium, if any, and (y) interest on all the Securities shall have been paid in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenturefull.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Parent Guarantee. (a) Holdings hereby agrees Subject to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the IndentureArticle 15, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees guarantees, on a senior unsecured basis, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 assigns, irrespective of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings validity and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions enforceability of this Indenture, the Notes or any other agreement;
iv. held thereby and the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor Obligations of the Guaranteed Obligations; or
vi. except as set forth Issuers hereunder and thereunder, that: (a) the principal of and premium, if any, and interest, if any, on the Notes will be promptly paid in Section 10.05 of the Indenturefull when due, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reductionapplicable grace period, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreementwhether at Stated Maturity, by any waiver acceleration, upon repurchase or modification of any thereof, by any default, failure or delay, willful redemption or otherwise, in and interest on the performance overdue principal of and premium, (to the extent permitted by law) interest on the Notes, and all other payment Obligations of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, Issuers to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise. Failing payment when so due of any amount so guaranteed for whatever reason, the Parent will be obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an amount equal event of default under the Parent Guarantee, and shall entitle the Holders to accelerate the obligations of the Parent hereunder in the same manner and to the sum same extent as the Obligations of the Issuers. The Parent hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against an Issuer, any action to enforce the same or any other circumstance (1other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of the unpaid amount of such Guaranteed ObligationsParent. The Parent further, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited permitted by law) , hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of an Issuer, any right to require a proceeding first against an Issuer, protest, notice and (3) all other monetary Guaranteed Obligations demands whatsoever and covenants that its Parent Guarantee will not be discharged except by complete performance of the Company Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to an Issuer, the Parent, or any Custodian, Trustee or other similar official acting in relation to any of the Issuers or the Parent, any amount paid by an Issuer or the Parent to the Trustee or such Holder, the Parent Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. The Parent agrees that it shall not be entitled to, and hereby waives, any right of subrogation in relation to the Holders and the Trustee.
(h) Holdings in respect of any Obligations guaranteed hereby. The Parent further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Guaranteed Obligations Guaranteed guaranteed hereby may be accelerated as provided in Article 6 of the Indenture 5 hereof for the purposes of the its Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed herebythereby, and (yb) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture5 hereof, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings the Parent for the purposes purpose of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.its Parent Guarantee..
Appears in 1 contract
Samples: Indenture (Ellington Financial LLC)
Parent Guarantee. Parent hereby agrees as follows:
(a) Holdings hereby agrees Subject to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental IndentureArticle Sixteen, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder of a Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 assigns, irrespective of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings validity and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions enforceability of this Indenture, the Notes Securities or any the obligations of the Company hereunder or thereunder, that:
(i) the principal of, and interest and premium on, the Securities shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Securities, if any, if lawful, and all other agreement;
iv. obligations of the release of any security held by any Holder Company to the Holders or the Trustee for hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the obligations terms hereof and thereof; and
(ii) in case of any extension of them;
v. the failure time of payment or renewal of any Holder Security or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the Trustee to exercise any right or remedy against any other guarantor terms of the Guaranteed Obligations; or
viextension or renewal, whether at stated maturity, by acceleration or otherwise. except as set forth in Section 10.05 Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, Parent shall be obligated to pay the Indenture, any change in the ownership of Holdings.
(d) Holdings further same immediately. Parent agrees that the Parent Guarantee constitutes this is a guarantee of payment, performance and compliance when due (payment and not a guarantee of collection.
(b) and waives Parent hereby agrees that, to the fullest extent permitted by applicable law, its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Parent hereby waives, to the fullest extent permitted by applicable law, diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged except by complete performance of the obligations contained in the Securities and this Indenture or impaired or otherwise affected by the failure of as set forth in Section 16.03 hereof.
(c) If any Holder or the Trustee is required by any court or otherwise to assert return to the Company, Parent or any claim custodian, trustee, liquidator or demand other similar official acting in relation to either the Company or Parent, any amount paid either to enforce any remedy under this Indenturethe Trustee or such Holder while the Parent Guarantee is in effect, the Notes or any other agreementParent Guarantee, by any waiver or modification of any thereofto the extent theretofore discharged, by any default, failure or delay, willful or otherwise, shall be reinstated in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equityfull force and effect.
(fd) Holdings further Parent agrees that the Parent Guarantee it shall continue not be entitled to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, right of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not subrogation in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, relation to the Holders or the Trustee an amount equal to the sum in respect of (1) the unpaid amount any obligations guaranteed hereby until payment in full of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings obligations guaranteed hereby. Parent further agrees that, as between itthe Parent, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed obligations guaranteed hereby may be accelerated as provided in Article 6 of the Indenture Five hereof for the purposes of the Parent Guaranteethis Article Sixteen, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6 of the IndentureFive hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by Holdings Parent for the purposes of Section 10.01 of the IndentureParent Guarantee.
(ie) Holdings also agrees to pay In case any provision of this Article Sixteen shall be invalid, illegal or unenforceable, the validity, legality and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 enforceability of the Indentureremaining provisions shall not in any way be affected or impaired thereby.
(f) The obligations of the Parent under the Parent Guarantee shall be a general unsecured senior obligation of Parent and shall be pari passu in right of payment with any existing and future senior unsecured indebtedness of Parent, except for any indebtedness mandatorily preferred by law, and will be senior in right of payment to any existing or future subordinated indebtedness of Parent.
(g) Parent agrees that the Parent Guarantee shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of the Parent Guarantee on the Securities.
Appears in 1 contract
Samples: Supplemental Indenture (Beam Inc)
Parent Guarantee. (a) Holdings The provisions of this Article 14 shall not be effective until the Escrow Release Date whereupon the Parent Guarantor will hereby agrees to become irrevocably and unconditionally guarantee on a party to the Indenture senior basis, as a Guarantor primary obligor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenturenot merely as a surety, to be substituted for STX as “Parent” under the Indentureeach Holder, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the IndentureTrustee, the Notes Collateral Agent and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its their successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings Obligations. The Parent Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings the Parent Guarantor, and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any no extension or renewal of any Guaranteed Obligation.
(c) Holdings Obligation shall release the obligations of the Parent Guarantor hereunder. The obligations of the Parent Guarantor hereunder shall be joint and several with the Subsidiary Guarantees of the Subsidiary Guarantors. The Parent Guarantor waives presentation to, demand of, of payment from and protest to Holdings the Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings The Parent Guarantor waives notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee Guarantor hereunder shall not be affected by:
i. by (i) the failure of any Holder Holder, the Trustee or the Trustee Collateral Agent to assert any claim or demand or to enforce any right or remedy against Holdings the Issuer or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise;
; (ii. ) any extension or renewal of this Indenture, the Securities or any thereof;
other agreement; (iii. ) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement;
; (iv. ) the release of any security held by any the Collateral Agent on behalf of each Holder or and the Trustee for the obligations of Guaranteed Obligations or any of them;
v. Subsidiary Guarantor; or (v) the failure of any Holder Holder, the Trustee or the Trustee Collateral Agent to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 The Parent Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among itself and the Subsidiary Guarantors, such that the Parent Guarantor’s obligations would be less than the full amount claimed. The Parent Guarantor hereby waives any right to which it may be entitled to have the assets of the Indenture, Issuer first be used and depleted as payment of the Issuer’s or the Parent Guarantor’s obligations hereunder prior to any change in amounts being claimed from or paid by the ownership of Holdings.
(d) Holdings Parent Guarantor hereunder. The Parent Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against the Parent Guarantor. The Parent Guarantor further agrees that the its Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Trustee Collateral Agent to any security held for payment of the Guaranteed Obligations.
(eb) The Parent Guarantee of the Parent Guarantor is, to the extent and in the manner set forth herein, equal in right of payment to all existing and future Parent Pari Passu Indebtedness and senior in right of payment to all existing and future Parent Subordinated Indebtedness and is made subject to such provisions of this Indenture.
(c) Except as expressly set forth in Sections 8.02 and 10.05 Section 8.01(b) of the this Indenture, the obligations of Holdings under the Parent Guarantee Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee Guarantor shall not be discharged or impaired or otherwise affected by the failure of any Holder Holder, the Trustee or the Trustee Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings the Parent Guarantor or would otherwise operate as a discharge of Holdings the Parent Guarantor as a matter of law or equity.
(fd) Holdings The Parent Guarantor agrees that its Parent Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. The Parent Guarantor further agrees that the its Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder Holder, the Trustee or the Trustee Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(ge) In furtherance of the foregoing and not in limitation of any other right which any Holder Holder, the Trustee or the Trustee Collateral Agent has at law or in equity against Holdings the Parent Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, Holdings the Parent Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1i) the unpaid principal amount of such Guaranteed Obligations, (2ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (3iii) all other monetary Guaranteed Obligations obligations of the Company Issuer to the Holders and the Trustee.
(hf) Holdings The Parent Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. The Parent Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations Guaranteed guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent GuaranteeGuarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings the Parent Guarantor for the purposes of this Section 10.01 of the Indenture14.01.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: Indenture (Berry Global Group Inc)
Parent Guarantee. (a) Holdings hereby agrees to become a party Subject to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 provisions of this Supplemental IndentureArticle 10, to be substituted for STX as “Parent” under the IndentureParent hereby fully and unconditionally guarantees, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder of a Senior Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 assigns, irrespective of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended validity or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions enforceability of this Indenture, the Senior Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder Company under this Indenture or the Trustee to exercise any right or remedy against any other guarantor of Senior Notes, that: (i) the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indentureprincipal of, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or and interest on any Guaranteed Obligation is rescinded or must otherwise the Senior Notes will be restored paid in full when due, whether at maturity by any Holder or the Trustee upon the bankruptcy or reorganization of the Company acceleration or otherwise.
(g) In furtherance of , and interest on the foregoing overdue principal and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) and (to the extent permitted by law)interest on or interest on any Guaranteed Obligation when or to perform or comply with any the Senior Notes will be promptly paid in full; (ii) all other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt obligations of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, Company to the Holders or the Trustee an amount equal to under this Indenture or the sum Senior Notes will be promptly paid in full or performed, all in accordance with the terms of this Indenture and the Senior Notes; and (1iii) the unpaid amount in case of any extension of time in payment or renewal of any Senior Notes or any of such Guaranteed Obligationsother obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to they will be paid in full when due or performed in accordance with the extent not prohibited terms of the extension or renewal, whether at maturity, by law) and (3) all acceleration or otherwise. Failing payment when due of any amount so guaranteed, or failing performance of any other monetary Guaranteed Obligations obligation of the Company to the Holders and or the Trustee.
, for whatever reason, Parent will be obligated to pay, or to perform or cause the performance of, the same before such failure becomes an Event of Default. Parent agrees that this is a guarantee of payment not a guarantee of collection. Parent hereby agrees that its obligations with regard to this Parent Guarantee shall be unconditional, irrespective of the validity, regularity or enforceability of the Senior Notes or the obligations of the Company under this Indenture, the absence of any action to enforce the same, the recovery of any judgment against the Company or any other obligor with respect to this Indenture, the Senior Notes or the obligations of the Company under this Indenture or the Senior Notes, any action to enforce the same or any other circumstances (hother than complete performance) Holdings further which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Parent further, to the extent permitted by law, hereby waives (a) demand, protest and notice of any kind, (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other person or the failure of the Trustee, the Holders or the Company (each a "Benefitted Party") to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other person, (c) notice of the existence, creation or incurring of any new or additional Debt or obligation, (d) any right to require a proceeding first against the Company or right to require the prior disposition of the assets of the Company to meet its obligations, (e) any defense based upon an election of remedies by a Benefitted Party, including but not limited to an election law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal, (f) any defense arising because of a Benefitted Party's election, in any proceeding instituted under Bankruptcy Law, of the application of 11 U.S.C. Section 1111(b)(2) or (g) any defense based on any borrowing or grant of a security interest under 11 U.S.C. Section 364. Parent hereby covenants that its Parent Guarantee will not be discharged except by complete performance of the obligations contained in the Senior Notes, the Parent Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to either the Company or Parent, or any custodian acting in relation to either the Company or Parent, any amount paid by the Company or Parent to the Trustee or such Holder, the Parent Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Parent agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Parent agrees that, as between it, on the one hand, and the Holders of Senior Notes and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed obligations guaranteed hereby may be accelerated as provided in Article 6 of the Indenture 10 hereof for the purposes of the Parent Guaranteehereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6 of the Indenture10 hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by Holdings Parent for the purposes purpose of Section 10.01 its Parent Guarantee. Parent hereby agrees that by virtue of Parent's execution and delivery of this Indenture, Parent shall be deemed to have signed on each Senior Note issued hereunder the notation of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by Parent Guarantee set forth on the Trustee or any Holder in enforcing any rights under Section 10.01 forms of the Indenture.Senior Note attached hereto as Exhibit A and Exhibit B.
Appears in 1 contract
Samples: Indenture (Kinetek Inc)
Parent Guarantee. (a) Holdings Parent hereby agrees to become a party irrevocably and unconditionally guarantees to the Indenture Buyer the payment and performance by Seller of its covenants, obligations, liabilities and agreements under this Agreement and the Transaction Documents, when and as a Guarantor the same shall become due and payable in accordance with the amendments terms and conditions of this Agreement and the Transaction Documents, as applicable (the “Guaranteed Obligations”). Parent acknowledges and agrees that such guaranty shall be a guaranty of payment and performance and not of collection, and is to remain in force until all obligations of Seller under this Agreement and the Transaction Documents shall have been performed or satisfied in full. The liability of Parent under this Agreement shall not be released or diminished by any variation of the terms of this Agreement or the Indenture made Transaction Documents (whether or not agreed by Parent), any forbearance, neglect or delay in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all seeking performance of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings imposed or any other Person under this Indenture, the Notes or any other agreement or otherwise;
iigranting of time for such performance. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change If Seller shall default in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, due and punctual payment or performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee will upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, Buyer forthwith pay, make full payment or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity performance of the Guaranteed Obligations Guaranteed hereby to the appropriate Person pursuant to the terms of this Agreement and/or the Transaction Documents, as applicable. No setoff, counterclaim, reduction or diminution of any obligation of any kind or nature which Parent may have or assert against Buyer shall be available hereunder to the Parent against the Seller. The Parent’s guarantee hereunder is unconditional irrespective of any change in the corporate existence, structure or ownership of Seller, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller or its assets. Parent waives notice of the Sellers’ acceptance of and reliance on this guarantee. Parent further waives any right it may have to (a) require Buyer to proceed against or exhaust any right against Seller or any other Person, or (b) require Buyer to pursue any other remedy within their power and Parent agrees that all of its obligations under this guarantee are independent of the obligations of the Seller and that a separate action may be accelerated as provided in Article 6 of the Indenture for the purposes of the brought against Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable an action is commenced against Seller. Parent waives any defense arising by Holdings for the purposes reason of Section 10.01 any incapacity, disability, lack of authority or power, or other defense of Seller based on or arising out of the Indenture.
lack of validity or the unenforceability of this guarantee or any agreement or instrument relating thereto. Parent acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by this Agreement and the Transaction Documents and that the waivers set forth in this Section 6.18 are made knowingly in contemplation of such benefits. Parent represents and warrants to Buyer as follows that (iI) Holdings also agrees it is duly organized, validly existing and in good standing under the laws of Canada, (II) it has all necessary power and authority to pay any execute and deliver and perform its obligations under this Agreement and each of the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby or thereby in accordance with the terms hereof or thereof, (III) the execution, delivery and performance by Parent of its obligations pursuant to this Agreement and each of the Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby or thereby have been duly and validly authorized by all costs necessary action on the part of Parent, and expenses no other proceedings on the part of Parent are necessary to authorize the execution, delivery or performance of this Agreement and the applicable Transaction Documents and (including reasonable attorneys’ fees IV) this Agreement and expenses) incurred each of the Transaction Documents to which it is a party have been duly and validly executed and delivered by Parent and, assuming the due authorization, execution and delivery by the Trustee or any Holder other parties hereto and thereto, constitute a valid, legal and binding agreement of Parent, enforceable against Parent in enforcing any rights under Section 10.01 of accordance with its terms, subject to the IndentureGeneral Enforceability Exceptions.
Appears in 1 contract
Parent Guarantee. (a) Holdings The Parent Guarantor hereby agrees to become a party to unconditionally guarantees the Indenture as a Guarantor and in accordance with the amendments to the terms punctual payment when due, whether at stated maturity, by acceleration or otherwise, of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all monetary obligations of the obligations and agreements of Parent Issuer under the Indenture, the Notes this Twenty-Fifth Supplemental Indenture and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to Notes, whether for principal or interest on the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Notes, expenses, indemnification or otherwise (all such obligations of the IndentureParent Guarantor being herein referred to as the “Parent Guaranteed Obligations”).
(b) Holdings further agrees It is the intention of the Parent Guarantor that the Guaranteed Obligations may Parent Guarantee not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to the Parent Guarantee. To effectuate the foregoing intention, the amount guaranteed by the Parent Guarantor under the Parent Guarantee shall be extended or renewedlimited to the maximum amount as will, in whole or in part, without notice or further assent from Holdings after giving effect to such maximum amount and that Holdings will remain bound by Article 10 all other contingent and fixed liabilities of the Indenture notwithstanding any extension Parent Guarantor that are relevant under such laws, result in the obligations of the Parent Guarantor under the Parent Guarantee not constituting a fraudulent transfer or renewal of any Guaranteed Obligationconveyance.
(c) Holdings waives presentation toThe Parent Guarantor guarantees that the Parent Guaranteed Obligations will be paid strictly in accordance with the terms of this Twenty-Fifth Supplemental Indenture, demand of, payment from and protest to Holdings regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holders of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligationswith respect thereto. The obligations liability of Holdings the Parent Guarantor under the Parent Guarantee shall not be affected byabsolute and unconditional irrespective of:
i. the failure (i) any lack of validity, enforceability or genuineness of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under provision of this Twenty-Fifth Supplemental Indenture, the Notes or any other agreement or otherwiseinstrument relating thereto;
(ii. ) any extension change in the time, manner or renewal place of payment of, or in any thereof;
iii. any rescissionother term of, waiver, amendment all or modification of any of the terms or provisions of this IndentureParent Guaranteed Obligations, the Notes or any other agreementamendment or waiver of or any consent to departure from this Twenty-Fifth Supplemental Indenture;
iv. the (iii) any exchange, release or non-perfection of any security held by collateral, or any Holder release or the Trustee amendment or waiver of or consent to departure from any other guarantee, for the obligations of all or any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Parent Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of (iv) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Indenture, Issuer or any change in the ownership of HoldingsGuarantor.
(d) Holdings further The Parent Guarantor covenants and agrees that its obligation to make payments of the Parent Guarantee Guaranteed Obligations hereunder constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment an unsecured obligation of the Guaranteed ObligationsParent Guarantor ranking pari passu with all existing and future senior unsecured indebtedness of the Parent Guarantor that is not subordinated in right of payment to the Parent Guarantee.
(e) Except as expressly set forth in Sections 8.02 The Parent Guarantor hereby waives promptness, diligence, notice of acceptance and 10.05 of the Indenture, the obligations of Holdings under any other notice with respect to the Parent Guarantee shall not be subject to and any reductionrequirement that the Trustee, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure Holders of any Holder Notes protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Issuer or any other agreement, by Person or any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equitycollateral.
(f) Holdings The Parent Guarantor hereby irrevocably waives any claims or other rights that it may now or hereafter acquire against the Issuer that arise from the existence, payment, performance or enforcement of the Parent Guarantor’s obligations under the Parent Guarantee or this Twenty-Fifth Supplemental Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Trustee, or the Holders of any Notes against the Issuer or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Issuer, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to the Parent Guarantor in violation of the preceding sentence at any time prior to the cash payment in full of the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, such amount shall be held in trust for the benefit of the Trustee and the Holders of any Notes and shall forthwith be paid to the Trustee, to be credited and applied to the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, whether matured or unmatured, in accordance with the terms of this Twenty-Fifth Supplemental Indenture and the Parent Guarantee, or be held as collateral for any Parent Guarantor Obligations or other amounts payable under the Parent Guarantee thereafter arising. The Parent Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Twenty-Fifth Supplemental Indenture and the Parent Guarantee and that the waiver set forth in this Section 10.01 is knowingly made in contemplation of such benefits.
(g) No failure on the part of the Trustee or any Holder of the Notes to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further agrees that exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
(h) The Parent Guarantee is a continuing guarantee and shall (a) subject to paragraph 12.07(i), remain in full force and effect until payment in full of the principal amount of all outstanding Notes (whether by payment at maturity, purchase, redemption, defeasance, retirement or other acquisition) and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing, (b) be binding upon the Parent Guarantor, its successors and assigns, and (c) inure to the benefit of and be enforceable by the Trustee, any Holder of Notes, and by their respective successors, transferees, and assigns.
(i) The Parent Guarantor will automatically and unconditionally be released from all Parent Guarantee Obligations, and the Parent Guarantee shall thereupon terminate and be discharged and of no further force of effect, (i) upon any merger or consolidation of such Parent Guarantor with the Issuer, (ii) upon exercise by the Issuer of its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8 hereof or the discharge of the Issuer’s obligations under this Twenty-Fifth Supplemental Indenture, in accordance with the terms of this Twenty-Fifth Supplemental Indenture, or (iii) upon payment in full of the aggregate principal amount of all Notes then outstanding and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing. Upon any such occurrence specified in this paragraph 12.07(i), the Trustee shall execute upon request by the Issuer, any documents reasonably required in order to evidence such release, discharge and termination in respect of the Parent Guarantee. Neither the Issuer nor the Parent Guarantor shall be required to make a notation on the Notes to reflect the Parent Guarantee or any such release, termination or discharge.
(j) The Parent Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time paymentpayment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Parent Guarantee, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, of principal of is rescinded, reduced, restored or premium (if any) on returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwisereturned.
(gk) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby The Parent Guarantor may be accelerated as provided in Article 6 of the Indenture for the purposes of amend the Parent Guarantee, notwithstanding Guarantee at any stay, injunction or other prohibition preventing such acceleration in respect time for any purpose without the consent of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the IndentureNotes; provided, however, that if such amendment adversely affects (a) the rights of the Trustee or (b) any Holder of the Notes, the prior written consent of the Trustee (in the case of (b), acting at the written direction of the Holders of more than 50% in aggregate principal amount of Notes) shall be required.
Appears in 1 contract
Parent Guarantee. So long (aand only so long) Holdings as the Company is Non-Reporting, Parent Guarantor hereby agrees unconditionally guarantees (such guarantee to become a party be referred to the Indenture herein as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees ”) to each Holder of Securities of each series authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, jointly and severally with each Guarantor of the Guaranteed Obligations Securities of that series, if any, irrespective of the validity and enforceability of this Indenture, such Securities or the obligations of the Company hereunder or thereunder, (i) the due and punctual payment of the principal of and any premium or interest on such Securities, whether at maturity or on an interest payment date, by acceleration, pursuant to an offer to purchase such Securities or otherwise, and interest on the overdue principal of and interest, if any, on such Securities, if lawful, and all other obligations of the Company to the Holders of such Securities or the Trustee hereunder or thereunder shall be promptly paid in full, all in accordance with Article 10 the terms hereof and thereof including all amounts payable to the Trustee under Section 6.07 hereof, and (ii) in case of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension of time of payment or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation tosuch Securities or any of such other obligations, demand ofthe same shall be promptly paid in full when due or to be performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. If the Company fails to make any payment from and protest to Holdings when due of any amount so guaranteed for whatever reason, so long (and only so long) as the Company is Non-Reporting, Parent Guarantor shall be obligated, jointly and severally with each such Guarantor of the Guaranteed Obligations and also waives notice Securities of protest for nonpaymentthat series, if any, to pay the same immediately. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this IndentureGuarantor hereby agrees that, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due so long (and not a guarantee of collectiononly so long) as the Company is Non-Reporting, its obligations hereunder shall be continuing, absolute and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indentureunconditional, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromiseirrespective of, and shall not be subject to any defense of setoffunaffected by, counterclaimthe validity, recoupment regularity or termination whatsoever or by reason enforceability of the invalidity, illegality or unenforceability of the Guaranteed ObligationsSecurities, this Indenture, the Notes absence of any action to enforce the same, any waiver or otherwise. Without limiting the generality consent by any Holder of the foregoingSecurities or the Trustee with respect to any provisions hereof or thereof, the obligations recovery of Holdings under any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of Parent Guarantor. Parent Guarantor hereby waives diligence, presentment, demand of payment, demand of performance, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, the benefit of discussion, protest, notice and all demand whatsoever and covenants that, so long (and only so long) as the Company is Non-Reporting, its Parent Guarantee shall not be discharged or impaired or otherwise affected except by complete performance of the obligations contained in the Securities guaranteed by the failure of Parent Guarantee, in this Indenture and in this Article Sixteen. If any Holder of Securities or the Trustee is required by any court or otherwise to assert any claim return to the Company or demand or to enforce any remedy under this Indenture, the Notes Parent Guarantor or any other agreement, by any waiver or modification Guarantor of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time paymentsuch Securities, or any part thereofcustodian, of principal of trustee, liquidator or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of other similar official acting in relation to the Company or otherwise.
(g) In furtherance Parent Guarantor or any Guarantor of such Securities, any amount paid by the foregoing and not in limitation Company or Parent Guarantor or any Guarantor of any other right which any Holder or such Securities to the Trustee has at law or in equity against Holdings by virtue hereofsuch Holder, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cashthis Article Sixteen, to the Holders or the Trustee an amount equal extent theretofore discharged with respect to the sum of Parent Guarantee, so long (1and only so long) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of as the Company is Non-Reporting, shall be reinstated in full force and effect. Parent Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders and the Trustee.
(h) Holdings of Securities of a series guaranteed hereby by Parent Guarantor in respect of any obligations guaranteed hereby by such Parent Guarantee until payment in full of all such obligations. Parent Guarantor further agrees that, as between itParent Guarantor, on the one hand, and the Holders of Securities and the Trustee, Trustee on the other hand, (xi) the maturity of the Guaranteed Obligations Guaranteed obligations guaranteed hereby by such Parent Guarantee may be accelerated as provided in Article 6 of the Indenture Five hereof for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations obligations guaranteed hereby, hereby and (yii) so long (and only so long) as the Company is Non-Reporting, in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6 of the IndentureFive hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by Holdings such Parent Guarantor, jointly and severally with any other Guarantor of such Securities, for the purposes purpose of Section 10.01 this Article Sixteen. In addition, without limiting the foregoing, upon the effectiveness of an acceleration under Article Five, so long (and only so long) as the Company is Non-Reporting, the Trustee may make a demand for payment on the Securities under the Parent Guarantee thereof to the extent not discharged. Parent Guarantor shall be subrogated to all rights of the Indenture.
(i) Holdings also agrees Holder of any Securities guaranteed hereby by the Parent Guarantee against the Company in respect of any amounts paid to pay such Holder by Parent Guarantor pursuant to the provisions of the Parent Guarantee; provided that Parent Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and interest on all costs and expenses (including reasonable attorneys’ fees and expenses) incurred such Securities shall have been paid in full. The Parent Guarantee provided in this Section 16.01 shall not be valid or become obligatory for any purpose with respect to a Security unless the certificate of authentication on such Security shall have been signed by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indentureduly appointed agent.
Appears in 1 contract
Parent Guarantee. (a) Holdings The Parent Guarantor hereby agrees to become a party to unconditionally guarantees the Indenture as a Guarantor and in accordance with the amendments to the terms punctual payment when due, whether at stated maturity, by acceleration or otherwise, of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all monetary obligations of the obligations and agreements of Parent Issuer under the Indenture, the Notes this Twenty-Eighth Supplemental Indenture and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to Notes, whether for principal or interest on the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Notes, expenses, indemnification or otherwise (all such obligations of the IndentureParent Guarantor being herein referred to as the “Parent Guaranteed Obligations”).
(b) Holdings further agrees It is the intention of the Parent Guarantor that the Guaranteed Obligations may Parent Guarantee not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to the Parent Guarantee. To effectuate the foregoing intention, the amount guaranteed by the Parent Guarantor under the Parent Guarantee shall be extended or renewedlimited to the maximum amount as will, in whole or in part, without notice or further assent from Holdings after giving effect to such maximum amount and that Holdings will remain bound by Article 10 all other contingent and fixed liabilities of the Indenture notwithstanding any extension Parent Guarantor that are relevant under such laws, result in the obligations of the Parent Guarantor under the Parent Guarantee not constituting a fraudulent transfer or renewal of any Guaranteed Obligationconveyance.
(c) Holdings waives presentation toThe Parent Guarantor guarantees that the Parent Guaranteed Obligations will be paid strictly in accordance with the terms of this Twenty-Eighth Supplemental Indenture, demand of, payment from and protest to Holdings regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holders of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligationswith respect thereto. The obligations liability of Holdings the Parent Guarantor under the Parent Guarantee shall not be affected byabsolute and unconditional irrespective of:
i. the failure (i) any lack of validity, enforceability or genuineness of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under provision of this Twenty-Eighth Supplemental Indenture, the Notes or any other agreement or otherwiseinstrument relating thereto;
(ii. ) any extension change in the time, manner or renewal place of payment of, or in any thereof;
iii. any rescissionother term of, waiver, amendment all or modification of any of the terms or provisions of this IndentureParent Guaranteed Obligations, the Notes or any other agreementamendment or waiver of or any consent to departure from this Twenty-Eighth Supplemental Indenture;
iv. the (iii) any exchange, release or non-perfection of any security held by collateral, or any Holder release or the Trustee amendment or waiver of or consent to departure from any other guarantee, for the obligations of all or any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Parent Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of (iv) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Indenture, Issuer or any change in the ownership of HoldingsGuarantor.
(d) Holdings further The Parent Guarantor covenants and agrees that its obligation to make payments of the Parent Guarantee Guaranteed Obligations hereunder constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment an unsecured obligation of the Guaranteed ObligationsParent Guarantor ranking pari passu with all existing and future senior unsecured indebtedness of the Parent Guarantor that is not subordinated in right of payment to the Parent Guarantee.
(e) Except as expressly set forth in Sections 8.02 The Parent Guarantor hereby waives promptness, diligence, notice of acceptance and 10.05 of the Indenture, the obligations of Holdings under any other notice with respect to the Parent Guarantee shall not be subject to and any reductionrequirement that the Trustee, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure Holders of any Holder Notes protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Issuer or any other agreement, by Person or any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equitycollateral.
(f) Holdings The Parent Guarantor hereby irrevocably waives any claims or other rights that it may now or hereafter acquire against the Issuer that arise from the existence, payment, performance or enforcement of the Parent Guarantor’s obligations under the Parent Guarantee or this Twenty-Eighth Supplemental Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Trustee, or the Holders of any Notes against the Issuer or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Issuer, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to the Parent Guarantor in violation of the preceding sentence at any time prior to the cash payment in full of the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, such amount shall be held in trust for the benefit of the Trustee and the Holders of any Notes and shall forthwith be paid to the Trustee, to be credited and applied to the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, whether matured or unmatured, in accordance with the terms of this Twenty-Eighth Supplemental Indenture and the Parent Guarantee, or be held as collateral for any Parent Guarantor Obligations or other amounts payable under the Parent Guarantee thereafter arising. The Parent Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Twenty-Eighth Supplemental Indenture and the Parent Guarantee and that the waiver set forth in this Section 10.01 is knowingly made in contemplation of such benefits.
(g) No failure on the part of the Trustee or any Holder of the Notes to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further agrees that exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
(h) The Parent Guarantee is a continuing guarantee and shall (a) subject to paragraph 12.07(i), remain in full force and effect until payment in full of the principal amount of all outstanding Notes (whether by payment at maturity, purchase, redemption, defeasance, retirement or other acquisition) and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing, (b) be binding upon the Parent Guarantor, its successors and assigns, and (c) inure to the benefit of and be enforceable by the Trustee, any Holder of Notes, and by their respective successors, transferees, and assigns.
(i) The Parent Guarantor will automatically and unconditionally be released from all Parent Guarantee Obligations, and the Parent Guarantee shall thereupon terminate and be discharged and of no further force of effect, (i) upon any merger or consolidation of such Parent Guarantor with the Issuer, (ii) upon exercise by the Issuer of its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8 hereof or the discharge of the Issuer’s obligations under this Twenty-Eighth Supplemental Indenture, in accordance with the terms of this Twenty-Eighth Supplemental Indenture, or (iii) upon payment in full of the aggregate principal amount of all Notes then outstanding and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing. Upon any such occurrence specified in this paragraph 12.07(i), the Trustee shall execute upon request by the Issuer, any documents reasonably required in order to evidence such release, discharge and termination in respect of the Parent Guarantee. Neither the Issuer nor the Parent Guarantor shall be required to make a notation on the Notes to reflect the Parent Guarantee or any such release, termination or discharge.
(j) The Parent Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time paymentpayment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Parent Guarantee, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, of principal of is rescinded, reduced, restored or premium (if any) on returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwisereturned.
(gk) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby The Parent Guarantor may be accelerated as provided in Article 6 of the Indenture for the purposes of amend the Parent Guarantee, notwithstanding Guarantee at any stay, injunction or other prohibition preventing such acceleration in respect time for any purpose without the consent of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the IndentureNotes; provided, however, that if such amendment adversely affects (a) the rights of the Trustee or (b) any Holder of the Notes, the prior written consent of the Trustee (in the case of (b), acting at the written direction of the Holders of more than 50% in aggregate principal amount of Notes) shall be required.
Appears in 1 contract
Parent Guarantee. (a) Holdings The Parent Guarantor hereby agrees to become a party to unconditionally guarantees the Indenture as a Guarantor and in accordance with the amendments to the terms punctual payment when due, whether at stated maturity, by acceleration or otherwise, of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all monetary obligations of the obligations and agreements of Parent Issuer under the Indenture, the Notes this Tenth Supplemental Indenture and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to Notes, whether for principal or interest on the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Notes, expenses, indemnification or otherwise (all such obligations of the IndentureParent Guarantor being herein referred to as the “Parent Guaranteed Obligations”).
(b) Holdings further agrees It is the intention of the Parent Guarantor that the Guaranteed Obligations may Parent Guarantee not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to the Parent Guarantee. To effectuate the foregoing intention, the amount guaranteed by the Parent Guarantor under the Parent Guarantee shall be extended or renewedlimited to the maximum amount as will, in whole or in part, without notice or further assent from Holdings after giving effect to such maximum amount and that Holdings will remain bound by Article 10 all other contingent and fixed liabilities of the Indenture notwithstanding any extension Parent Guarantor that are relevant under such laws, result in the obligations of the Parent Guarantor under the Parent Guarantee not constituting a fraudulent transfer or renewal of any Guaranteed Obligationconveyance.
(c) Holdings waives presentation toThe Parent Guarantor guarantees that the Parent Guaranteed Obligations will be paid strictly in accordance with the terms of this Tenth Supplemental Indenture, demand of, payment from and protest to Holdings regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holders of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligationswith respect thereto. The obligations liability of Holdings the Parent Guarantor under the Parent Guarantee shall not be affected byabsolute and unconditional irrespective of:
i. the failure (i) any lack of validity, enforceability or genuineness of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under provision of this Tenth Supplemental Indenture, the Notes or any other agreement or otherwiseinstrument relating thereto;
(ii. ) any extension change in the time, manner or renewal place of payment of, or in any thereof;
iii. any rescissionother term of, waiver, amendment all or modification of any of the terms or provisions of this IndentureParent Guaranteed Obligations, the Notes or any other agreementamendment or waiver of or any consent to departure from this Tenth Supplemental Indenture;
iv. the (iii) any exchange, release or non-perfection of any security held by collateral, or any Holder release or the Trustee amendment or waiver of or consent to departure from any other guarantee, for the obligations of all or any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Parent Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of (iv) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Indenture, any change in the ownership of HoldingsIssuer or a guarantor.
(d) Holdings further The Parent Guarantor covenants and agrees that its obligation to make payments of the Parent Guarantee Guaranteed Obligations hereunder constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment an unsecured obligation of the Guaranteed ObligationsParent Guarantor ranking pari passu with all existing and future senior unsecured indebtedness of the Parent Guarantor that is not subordinated in right of payment to the Parent Guarantee.
(e) Except as expressly set forth in Sections 8.02 The Parent Guarantor hereby waives promptness, diligence, notice of acceptance and 10.05 of the Indenture, the obligations of Holdings under any other notice with respect to the Parent Guarantee shall not be subject to and any reductionrequirement that the Trustee, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure Holders of any Holder Notes protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Issuer or any other agreement, by Person or any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equitycollateral.
(f) Holdings The Parent Guarantor hereby irrevocably waives any claims or other rights that it may now or hereafter acquire against the Issuer that arise from the existence, payment, performance or enforcement of the Parent Guarantor’s obligations under the Parent Guarantee or this Tenth Supplemental Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Trustee, or the Holders of any Notes against the Issuer or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Issuer, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to the Parent Guarantor in violation of the preceding sentence at any time prior to the cash payment in full of the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, such amount shall be held in trust for the benefit of the Trustee and the Holders of any Notes and shall forthwith be paid to the Trustee, to be credited and applied to the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, whether matured or unmatured, in accordance with the terms of this Tenth Supplemental Indenture and the Parent Guarantee, or be held as collateral for any Parent Guarantor Obligations or other amounts payable under the Parent Guarantee thereafter arising. The Parent Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Tenth Supplemental Indenture and the Parent Guarantee and that the waiver set forth in this Section 10.01 is knowingly made in contemplation of such benefits.
(g) No failure on the part of the Trustee or any Holder of the Notes to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further agrees that exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
(h) The Parent Guarantee is a continuing guarantee and shall (a) subject to paragraph 12.07(i), remain in full force and effect until payment in full of the principal amount of all outstanding Notes (whether by payment at maturity, purchase, redemption, defeasance, retirement or other acquisition) and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing, (b) be binding upon the Parent Guarantor, its successors and assigns, and (c) inure to the benefit of and be enforceable by the Trustee, any Holder of Notes, and by their respective successors, transferees, and assigns.
(i) The Parent Guarantor will automatically and unconditionally be released from all Parent Guarantee Obligations, and the Parent Guarantee shall thereupon terminate and be discharged and of no further force of effect, (i) upon any merger or consolidation of such Parent Guarantor with the Issuer, (ii) upon exercise by the Issuer of its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8 hereof or the discharge of the Issuer’s obligations under this Tenth Supplemental Indenture, in accordance with the terms of this Tenth Supplemental Indenture, or (iii) upon payment in full of the aggregate principal amount of all Notes then outstanding and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing. Upon any such occurrence specified in this paragraph 12.07(i), the Trustee shall execute upon request by the Issuer, any documents reasonably required in order to evidence such release, discharge and termination in respect of the Parent Guarantee. Neither the Issuer nor the Parent Guarantor shall be required to make a notation on the Notes to reflect the Parent Guarantee or any such release, termination or discharge.
(j) The Parent Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time paymentpayment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Parent Guarantee, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, of principal of is rescinded, reduced, restored or premium (if any) on returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwisereturned.
(gk) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby The Parent Guarantor may be accelerated as provided in Article 6 of the Indenture for the purposes of amend the Parent Guarantee, notwithstanding Guarantee at any stay, injunction or other prohibition preventing such acceleration in respect time for any purpose without the consent of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the IndentureNotes; provided, however, that if such amendment adversely affects (a) the rights of the Trustee or (b) any Holder of the Notes, the prior written consent of the Trustee (in the case of (b), acting at the written direction of the Holders of more than 50% in aggregate principal amount of Notes) shall be required.
Appears in 1 contract
Parent Guarantee. (a) Holdings hereby agrees In order to become a party induce the Lenders to extend credit to the Indenture Borrowers hereunder or to any of the Parent’s Subsidiaries under Hedging Agreements and Banking Services Agreements, and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged) the Parent hereby irrevocably and unconditionally guarantees, as a Guarantor primary obligor and in accordance with not merely as a surety, the amendments payment when and as due, subject to the terms notice provisions contained in this Article X, of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under Obligations and the IndentureSpecified Ancillary Obligations (collectively, the Notes and the “Guaranteed Obligations”). The Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the due and punctual payment of such Guaranteed Obligations may be extended or renewed, in whole or in part, without notice to or further assent from Holdings it, and that Holdings it will remain bound by Article 10 of the Indenture upon its guarantee hereunder notwithstanding any such extension or renewal of any such Guaranteed Obligation.
. For the avoidance of doubt and notwithstanding any provision hereof to the contrary, (ci) Holdings the Guaranteed Obligations shall in no event be broader than the performance of the related Obligations or Specified Ancillary Obligations in accordance with their terms and (ii) nothing contained in this Article X shall affect or otherwise impair any rights (including rights of setoff or counterclaim) that the applicable Borrower or Subsidiary may have against any holder of Guaranteed Obligation under the applicable Hedging Agreement and/or Banking Services Agreement, as applicable, by reason of any action or failure to act of such holder thereunder (including, without limitation, any breach or default of such holder under the related Hedging Agreement or Banking Services Agreement). The Parent waives presentation presentment to, demand of, of payment from and protest to Holdings any Subsidiary of any of the Guaranteed Obligations Obligations, and also waives waives, other than as set forth in this Article X, notice of acceptance of its obligations and notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee under this Article X shall not be affected by:
i. : (a) the failure of the Administrative Agent, any Holder Issuing Bank or the Trustee any Lender (or any of its Affiliates) to assert any claim or demand or to enforce any right or remedy against Holdings or any Subsidiary under the provisions of this Agreement, any other Person under this IndentureLoan Document, the Notes or any other agreement Hedging Agreement, any Banking Services Agreement or otherwise;
ii. ; (b) any extension or renewal of any thereof;
iii. of the Guaranteed Obligations; (c) any rescission, waiver, amendment or modification of of, or release from, any of the terms or provisions of this IndentureAgreement, the Notes any other Loan Document, any Hedging Agreement, any Banking Services Agreement or any other agreement;
iv. agreement (other than to the release extent provided for in any express, written release, amendment, modification or waiver with respect to any of this Article X made in accordance with Section 9.02); (d) any security held by any Holder default, failure or delay, willful or otherwise, in the Trustee for the obligations performance of any of them;
v. the Guaranteed Obligations; (e) the failure of the Administrative Agent (or any Holder applicable Lender (or any of its Affiliates)) to take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Guaranteed Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or ownership of any Subsidiary or any other guarantor of any of the Guaranteed Obligations; (g) the enforceability or validity of the Guaranteed Obligations or any part thereof or the Trustee genuineness, enforceability or validity of any agreement relating thereto or with respect to exercise any right collateral securing the Guaranteed Obligations or remedy any part thereof, or any other invalidity or unenforceability relating to or against any Subsidiary or any other guarantor of any of the Guaranteed Obligations, for any reason related to this Agreement, any other Loan Document, any Hedging Agreement, any Banking Services Agreement or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Subsidiary or any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 , of any of the IndentureGuaranteed Obligations or otherwise affecting any term of any of the Guaranteed Obligations; or (h) any other act, omission or delay to do any change other act which may or might in any manner or to any extent vary the ownership risk of Holdings.
(d) Holdings the Parent or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of the Parent to subrogation. The Parent further agrees that the Parent Guarantee its agreement hereunder constitutes a guarantee of payment, performance and compliance payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Guaranteed Obligations or operated as a discharge thereof) and not a guarantee merely of collection) , and waives any right to require that any resort be had by the Administrative Agent, any Holder Issuing Bank or the Trustee any Lender (or any of its Affiliates) to any security held for payment balance of any deposit account or credit on the books of the Guaranteed Obligations.
(e) Except as expressly set forth Administrative Agent, any Issuing Bank or any Lender in Sections 8.02 and 10.05 favor of any Subsidiary or any other Person. The obligations of the Indenture, the obligations of Holdings under the Parent Guarantee hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoffor set-off, counterclaim, recoupment or termination whatsoever or whatsoever, by reason of the invalidity, illegality or unenforceability of any of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, impossibility in the performance of any of the obligations, Guaranteed Obligations or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings otherwise. The Parent further agrees that the Parent Guarantee its obligations hereunder shall constitute a continuing and irrevocable guarantee of all Guaranteed Obligations now or hereafter existing and shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation (including a payment effected through exercise of a right of setoff) is rescinded rescinded, or is or must otherwise be restored or returned by the Administrative Agent, the Issuing Bank or any Holder Lender (or the Trustee any of its Affiliates) upon the insolvency, examinership, bankruptcy or reorganization of the Company any Subsidiary or otherwise.
otherwise (g) including pursuant to any settlement entered into by a holder of Guaranteed Obligations in its discretion). In furtherance of the foregoing and not in limitation of any other right which the Administrative Agent, any Holder Issuing Bank or the Trustee has any Lender (or any of its Affiliates) may have at law or in equity against Holdings the Parent by virtue hereof, upon the failure of the Company any Subsidiary to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or to perform or comply with any other Guaranteed Obligationotherwise, Holdings the Parent hereby promises to and shallwill, upon promptly but in any event within two (2) Business Days following receipt of written demand by the TrusteeAdministrative Agent, any Issuing Bank or any Lender (or any of its Affiliates), forthwith pay, or cause to be paid, in cash, to the Holders Administrative Agent, any Issuing Bank or the Trustee any Lender (or any of its Affiliates) in cash an amount equal to the sum of (1) the unpaid principal amount of such the Guaranteed ObligationsObligations then due, (2) together with accrued and unpaid interest on thereon. The Parent further agrees that if payment in respect of any Guaranteed Obligation shall be due in a currency other than Dollars and/or at a place of payment other than New York, Chicago or any other Eurocurrency Payment Office and if, by reason of any Change in Law, disruption of currency or foreign exchange markets, war or civil disturbance or other similar event, payment of such Guaranteed Obligations Obligation in such currency or at such place of payment shall be impossible or, in the reasonable judgment of the Administrative Agent, any Issuing Bank or any Lender (but only or any of its Affiliates), disadvantageous to the extent not prohibited Administrative Agent, any Issuing Bank or any Lender (or any of such Lender’s Affiliates) in any material respect, then, at the election of the Administrative Agent, the Parent shall make payment of such Guaranteed Obligation in Dollars (based upon the Dollar Amount of such Specified Ancillary Obligation on the date of payment) and/or in New York, Chicago or such other Eurocurrency Payment Office as is designated by law) the Administrative Agent or such Lender and, as a separate and independent obligation, shall indemnify the Administrative Agent, any Issuing Bank and any Lender (3) and such Lender’s Affiliates), as applicable, against any losses or reasonable out-of-pocket expenses that it shall sustain as a result of such alternative payment. Upon payment by the Parent of any sums as provided above, all other monetary rights of the Parent against any Subsidiary arising as a result thereof by way of right of subrogation or otherwise shall in all respects be subordinated and junior in right of payment to the prior indefeasible payment in full in cash of all the Guaranteed Obligations owed by such Subsidiary. Nothing shall discharge or satisfy the liability of the Company to Parent hereunder except the Holders full performance and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity payment in cash of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the IndentureObligations.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor For good and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenturevaluable consideration, the Notes receipt and the sufficiency of which is hereby acknowledged, Parent hereby fully and unconditionally guarantees (such guarantee being a "Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees ") to each Holder holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 irrespective of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings validity and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions enforceability of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder Company under this Indenture or the Trustee to exercise any right or remedy against any other guarantor of Notes, that: (i) the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indentureprincipal of, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of paymentpremium, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromiseif any, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, interest on the Notes will be paid when due, whether at maturity or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreementinterest payment date, by any waiver or modification of any thereofacceleration, by any defaultcall for redemption, failure or delay, willful purchase or otherwise, in and interest on the performance overdue principal and interest, if any, of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may beNotes, if at any time paymentlawful, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations obligations of the Company to the Holders Noteholders or the Trustee under this Indenture or the Notes will be promptly paid or performed, all in accordance with the terms of this Indenture and the TrusteeNotes; and (ii) in case of any extension of time of payment or renewal of any of the Notes or any such other obligations, they will be paid when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration, call for redemption, purchase or otherwise. Failing payment when due of any amount so guaranteed for whatever reason, Parent shall be obligated to pay the same before failure to do so becomes an Event of Default. Notwithstanding anything herein to the contrary, all obligations of Parent hereunder shall be subordinated to the prior payment of Parent Senior Indebtedness to the same extent that the Notes are subordinated pursuant to Article Four.
(hb) Holdings further Parent agrees thatthat (i) its obligations with regard to this Parent Guarantee shall be full and unconditional, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity irrespective of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 validity, regularity or enforceability of the Indenture for Notes or this Indenture, the purposes absence of any action to enforce the same, any delays in obtaining or realizing upon (or failures to obtain or realize upon) collateral, the recovery of any judgment against the Company, any action to enforce the same or any other circumstances that might otherwise constitute a legal or equitable discharge or defense of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect and (ii) this Parent Guarantee will not be discharged except by complete performance of the Guaranteed Obligations guaranteed herebyobligations contained in the Notes and this Indenture. Parent hereby waives diligence, and (y) presentment, demand of payment, filing of claims with a court in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 insolvency or bankruptcy of the IndentureCompany, such Guaranteed Obligations (whether any right to require a proceeding first against the Company or not due and payable) shall forthwith become due and payable by Holdings for right to require the purposes of Section 10.01 prior disposition of the assets of the Company to meet its obligations, protest, notice and all demands whatsoever and covenants that this Parent Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.
(ic) Holdings also agrees If any Noteholder or the Trustee is required by any court or otherwise to pay return to any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred of the Company, Parent, or Trustee, or similar official acting for any of the Company or Parent, any amount paid by any of the Company or Parent to the Trustee or such Noteholder, this Parent Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Parent agrees that it will not be entitled to any Holder right of subrogation in enforcing relation to the Noteholders in respect of any rights under Section 10.01 of the Indentureobligations guaranteed hereby."
Appears in 1 contract
Samples: First Supplemental Indenture (Texas Instruments Tucson Corp)
Parent Guarantee. (a) Holdings The Guarantor hereby agrees to become a party irrevocably, absolutely and unconditionally guarantees to the Indenture Seller the due and punctual payment by the Purchaser of the Purchaser’s obligations under Section 1(c)(ii)-(iii), Section 1(e)(ii), and under Section 4(a) of this Agreement (up to an amount in the aggregate no greater than the Payment Amounts) as a Guarantor and when due and payable pursuant to and in accordance with the amendments to the terms of the Indenture made in Section 2 and conditions of this Supplemental Indenture, Agreement (the “Guaranteed Obligations”) and agrees that the Seller shall be entitled to be substituted for STX as “Parent” under enforce directly against the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns Guarantor the Guaranteed Obligations in accordance with Article 10 if the Purchaser fails to pay or perform the Guaranteed Obligations. This guaranty is a guaranty of the Indenture.
(b) Holdings further agrees that payment and not of collection. The Guarantor is guaranteeing the Guaranteed Obligations may be extended or renewedas primary obligor and not merely as surety. If, in whole or in partfor any reason whatsoever, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest Purchaser shall fail to Holdings of any of pay the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under Obligations, the Notes Guarantor will promptly pay or cause to be paid the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or Guarantor hereby irrevocably waives diligence, presentment, demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not filing objections with a guarantee of collection) and waives court, any right to require that proceeding first against the Purchaser, any resort be had by any Holder right to require the prior disposition of the assets of the Purchaser to meet its obligations hereunder, lack of validity or the Trustee to any security held for payment unenforceability of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability this guaranty of the Guaranteed Obligations, any rights to set-offs, recoupments and counterclaims (except to the extent the Purchaser or its Affiliates is entitled to such rights pursuant to the express terms of this IndentureAgreement, which rights result in a reduction of the Notes Guaranteed Obligations), notice, protest and all similar demands whatsoever. The guaranty contained in this Section 7(t) shall apply regardless of any amendments, modifications, waivers or otherwiseextensions to this Agreement (but such guaranty shall apply with respect to this Agreement as so amended, modified, waived or extended in accordance with this Agreement), whether or not the Guarantor receives notice of the same and the Guarantor waives all need for notice of the same. Without limiting the generality of Notwithstanding the foregoing, the Guarantor shall have (i) the full benefit of all defenses, counterclaims, reductions, diminutions or limitations available to the Purchaser pursuant to or arising from this Agreement, except for those arising out of (A) any legal limitation, disability or incapacity of the Purchaser and (B) any bankruptcy, insolvency, dissolution or liquidation of the Purchaser, and (ii) the full benefit of and does not waive or relinquish its rights and remedies accorded under, applicable statutes of limitation and repose. The Guarantor’s guaranty of the Guaranteed Obligations is irrevocable and continues for the duration of the Guaranteed Obligations. The Guarantor’s obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(fSection 7(t) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee terminate upon the bankruptcy or reorganization earlier of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity satisfaction in full of the all Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) the payment in full of the event Payment Amounts. The Guarantor hereby makes to the Purchaser as of any declaration the date hereof and as of acceleration Closing each of the representations and warranties set forth in Section 3 hereof, mutatis mutandis, replacing references to “Purchaser” with “Guarantor”. The Guarantor agrees to the terms of Sections 4(b), 4(f), 7(a), 7(f), 7(g), 7(h), 7(i), 7(j), 7(k), 7(l), 7(m), 7(n), 7(o), 7(p), 7(q), 7(r), 7(s) and 7(u) and that it shall be a treated as a party to this Agreement for purposes of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the IndentureSections.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Parent Guarantee. (a) Holdings The Parent, as primary obligor and not merely as surety, hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indentureabsolutely, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder the Sellers the full and timely payment and performance of all Liabilities of the Purchaser incurred under, arising out of or in connection with this Agreement and the other Transaction Documents, as from time to time amended, modified or supplemented in accordance with their terms (such Liabilities, the Trustee "Guaranteed Obligations"). The obligations of the Parent under this Section 12.14 are absolute and its successors and assigns unconditional in respect of satisfying the Guaranteed Obligations in accordance with Article 10 of and shall be enforceable against the IndentureParent to the same extent as if the Parent were the primary obligor (and not merely a surety) under this Agreement and the other Transaction Documents.
(b) Holdings further agrees that The guarantee contemplated in this Section 12.14 (the Guaranteed Obligations "Guarantee") shall apply to this Agreement and all of the other Transaction Documents and all indulgences, variations, alterations, amendments, modifications, restatements, waivers, releases, or extensions of time as may be extended made, given, conceded or renewed, in whole agreed under this Agreement whether or in part, without not the Parent receives notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding same and the Parent hereby waives all need for notice of the same. The obligations of the Parent hereunder shall in no way be affected by any extension amendment, variation or renewal of any Guaranteed Obligationaddendum to this Agreement.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent This Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes is a guarantee of payment, performance and compliance when due compliance. In order to hold the Parent liable hereunder, there shall be no obligation on the part of the Sellers at any time to demand or resort for payment or performance to the Purchaser or its properties or assets or to any security, property or other rights or remedies whatsoever, nor shall there be any requirement that any of the Sellers be joined as a party to any proceeding for the enforcement of any provision of this Guarantee and the Sellers shall have the right to enforce the provisions of this Guarantee irrespective of whether or not legal proceedings or other enforcement efforts against the Purchaser are pending, seeking resort to or realization upon or from any of the foregoing.
(d) The liability of the Parent hereunder shall remain in full force and effect irrespective of and shall in no way be affected or impaired by, regardless of whether notice to or consent of the Parent is given or obtained (and not a guarantee no notice to or consent of collectionthe Parent shall be required in respect of):
(i) and waives any right failure, neglect or omission on the part of any Seller or any other person to require that give the Parent notice of the occurrence of any resort be had by any Holder Purchaser default under or the Trustee with respect to any security held for payment of the Guaranteed Obligations, or to realize upon any obligations or liabilities of the Purchaser; or
(ii) any amalgamation, merger or consolidation of the Purchaser or the Parent or any sale, lease or transfer of any of their respective assets; or
(iii) any change in the financial condition of the Purchaser or the Parent; or
(iv) any direct or indirect change in the ownership of or control over any shares of the capital stock of the Purchaser or Parent or any other change in status, control or ownership of the Purchaser or Parent; or
(v) any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing and any other circumstance that might otherwise constitute a legal or equitable defence or discharge of the liabilities of a guarantor or surety that might otherwise limit recourse against the Parent.
(e) Except as expressly set forth in Sections 8.02 It is the intent and 10.05 of the Indenture, the obligations of Holdings under purpose hereof that the Parent Guarantee shall not be subject entitled to and does hereby waive any reductionand all defences available to guarantors, limitation, impairment sureties and other secondary parties at law or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwisein equity. Without limiting the generality of the foregoing, the obligations Parent irrevocably waives, to the extent permitted by applicable Laws:
(i) diligence, presentment, demands for performance, notices of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected non- performance by the failure of Purchaser, protest, dishonour, and all other notices;
(ii) any Holder or right to require the Trustee Sellers to assert any claim or demand or to enforce any remedy under this Indenture, proceed against the Notes Purchaser or any other agreement, by person or to pursue any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, other remedy in the performance power of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.Sellers whatsoever;
(fiii) Holdings further agrees that any defence arising by reason of the Parent Guarantee shall continue to be effective invalidity, illegality or be reinstated, as lack of enforceability of this Agreement or any part thereof or any of the case may be, if at any time payment, Transaction Documents or any part thereof, or by reason of principal any incapacity, lack of authority or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization other defense of the Company or otherwise.Purchaser;
(giv) In furtherance of the foregoing any and not in limitation of any other right which any Holder or the Trustee has all rights at law or in equity against Holdings by virtue hereofto subrogation, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when reimbursement, to exoneration, to contribution, to indemnification, to set off or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises rights that could accrue to a surety against a principal or to a guarantor against a principal and shall, upon receipt of written demand by which the Trustee, forthwith pay, Parent may have or cause to be paid, in cash, to hereafter acquire against the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) Purchaser until all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes obligations of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration under this Guarantee have been unconditionally satisfied in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.full; and
(if) Holdings also agrees to pay any and all costs other defences available to guarantors, sureties and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee other secondary parties at law or any Holder in enforcing any rights under Section 10.01 of the Indentureequity.
Appears in 1 contract
Samples: Share Purchase Agreement
Parent Guarantee. (a) Holdings To induce the Sellers to enter into this Agreement, Parent hereby agrees to become irrevocably, absolutely and unconditionally guarantees as a party primary obligor and not merely as surety to the Indenture as a Guarantor Sellers, the full and punctual payment, performance and discharge of all of the obligations of Purchaser to the Sellers under this Agreement, and all liabilities and damages payable by Purchaser arising under or in connection with this Agreement, whether pursuant to Section 1.2, Section 6.2, Article VII or otherwise, when due, subject to and in accordance with the amendments provisions of this Agreement (the “Obligations”). In furtherance of the foregoing, Parent acknowledges that its liability under this Section 8.16 shall extend to the terms Obligations and that the Sellers may, in their sole discretion, bring and prosecute a separate action or actions against Parent for the full amount of the Indenture made in Section 2 Obligations, regardless of this Supplemental Indenturewhether action is brought against Purchaser or any other Person, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings whether Purchaser or any other Person under this Indenture, the Notes is joined in any such action or actions or whether Purchaser or any other agreement or otherwise;
iiPerson was primarily responsible for causing the Obligations of Purchaser under this agreement. any extension or renewal For the avoidance of doubt, Parent shall remain liable for performing its obligations hereunder in the event that Purchaser assigns this Agreement to an Affiliate thereof in accordance with the terms of this Agreement (with all references to “Purchaser” herein to then be deemed references to such affiliated assignee). Parent’s obligations hereunder shall apply regardless of any thereof;
iii. any rescissionamendments, waivervariations, amendment alterations, waivers or modification extensions to this Agreement executed pursuant to this Agreement, regardless of any whether Parent received notice of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor same and Parent hereby waives notice of the Guaranteed Obligationssame. In connection with this guaranty, Parent waives: (a) any defenses that would be available to Purchaser arising under applicable bankruptcy Laws; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(db) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require the Sellers to (i) proceed against Purchaser or any other Person; (ii) proceed against or exhaust any security or (iii) pursue any other remedy for the breach of an obligation by Purchaser under this Agreement; and (c) any defense from the absence, impairment or loss of any right of reimbursement or subrogation or any other rights against Purchaser. The Sellers acknowledge and agree that, except as otherwise provided in this Section 8.16, Parent may assert any defenses that any resort would be had by any Holder or the Trustee available to Purchaser with respect to any security held demand for payment performance of the Guaranteed Obligations.
any Obligations of Purchaser under this Agreement (e) Except as expressly including those set forth in Sections 8.02 and 10.05 Article VII). The Parties have executed this Stock Purchase Agreement as of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, date indicated in the performance first sentence of the obligationsthis Agreement. Xxxxxx Xxxx XXXXXX XXXXX TRUST DATED DECEMBER 22, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated2006 By: /s/ Xxxxxx Xxxxx Xxxxxx Xxxxx, as the case may beTrustee NLAYER COMMUNICATIONS, if at any time paymentINC. By: /s/ Xxxxxx Xxxx Name: Xxxxxx Xxxx Title: President GLOBAL TELECOM & TECHNOLOGY AMERICAS, or any part thereofINC. By: /s/ Xxxxx XxXxx Name: Xxxxx XxXxx Its: General Counsel GLOBAL TELECOM & TECHNOLOGY, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.INC. By: /s/ Xxxxx XxXxx Name: Xxxxx XxXxx Its: General Counsel
Appears in 1 contract
Samples: Stock Purchase Agreement (Global Telecom & Technology, Inc.)
Parent Guarantee. (a) Holdings hereby agrees Guarantor shall cause each Seller to become a party comply in all respects with each of the representations, warranties, covenants, obligations, agreements and undertakings made or required to be performed by such Seller pursuant to the Indenture as terms of this Agreement and the Ancillary Agreements. As a material inducement to Buyers’ willingness to enter into this Agreement and perform its obligations hereunder, Guarantor hereby unconditionally guarantees full performance and payment by each Seller of each of the covenants, obligations and undertakings required to be performed by such Seller under this Agreement and the Ancillary Agreements, subject to all terms, conditions and limitations contained in this Agreement, and hereby represents, acknowledges and agrees that any breach of any such representation and warranty or default in the performance(including any nonpayment) of any such covenant, obligation, agreement or undertaking of any Seller shall also be deemed to be a breach or default of Guarantor, and each Buyer shall have the right, exercisable in its sole discretion, to pursue any and all available remedies it may have arising out of any such breach or nonperformance (including nonpayment) directly against either or all of Guarantor and Sellers in the first instance, in all cases subject to all terms, conditions and limitations contained in this Agreement. For the avoidance of doubt, this guaranty is an absolute, unconditional and continuing guarantee of the full and punctual payment and performance by Sellers of their obligations hereunder and not of collection, the Parties hereby acknowledge and agree that in no event shall Guarantor be liable to Buyers or any other Buyer Indemnified Party for any Losses if and to the extent that Sellers are not liable to Buyers or any other Buyer Indemnified Party; provided, however, that Guarantor’s liability in accordance with the amendments to the terms of the Indenture made in Section 2 and conditions of this Supplemental Indenture, to Section 11.23 shall not be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended released or reneweddischarged, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound otherwise affected by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(ca) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder Buyer or the Trustee other Buyer Indemnified Party to assert any claim or demand or to enforce any right or remedy against Holdings Sellers (or any of their permitted assignees) or any other Person Person; (b) any change in time, place or manner of payment of any of the covenants, obligations and undertakings required to be performed by any Seller under this Indenture, Agreement or the Notes Ancillary Agreements or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waivermodification, amendment or modification supplement of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder Agreement or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstatedAncillary Agreements, as the case may be, if made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any of such covenants, obligations or agreements; (c) the addition, substitution or release of Sellers (or any of their permitted assignees) or any other Person; (d) any change in the corporate existence, structure or ownership of Sellers (or any of their permitted assignees) or any other Person; (e) any insolvency, bankruptcy, reorganization, dissolution, liquidation or other similar Proceeding affecting Sellers (or any of their permitted assignees) or any other Person; (f) the existence of any claim, set-off or other right which Guarantor may have at any time payment, against Sellers or the Buyer Indemnified Parties or any part thereofof their respective Affiliates, whether in connection with the obligations of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company Guarantor under this Section 11.23 or otherwise.
; or (g) In furtherance of the foregoing and not in limitation any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of any other right which any Holder Seller that would not also constitute a legal or the Trustee has at law equitable discharge or in equity against Holdings by virtue hereof, upon the failure defense of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the TrusteeGuarantor.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Parent Guarantee. Parent Guarantor hereby (ai) Holdings hereby agrees to become a party take any and all actions necessary to the Indenture as a Guarantor cause Acquiror and Merger Sub to perform all of their respective obligations under this Agreement in accordance with the amendments their respective terms (including with respect to the terms consummation of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the IndentureMerger, the Notes and the Parent Guarantee. Holdings shall have all payment of the rights and be subject Merger Consideration and, if applicable, any amounts payable pursuant to all of the obligations and agreements of Parent under the IndentureSection 10.2) (collectively, the Notes “Guaranteed Obligations”) and the Parent Guarantee. Holdings hereby (ii) absolutely, unconditionally and irrevocably guarantees to each Holder guarantees, as primary obligor and to not merely as surety, the Trustee full and its successors complete performance by Acquiror and assigns Merger Sub of the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may Obligations, and Parent Guarantor shall be extended liable for any breach by Acquiror or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings Merger Sub of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes This is a guarantee of payment, performance and compliance when due payment (and not a guarantee of collection) and waives performance. The Company shall not be obligated to file any right claim relating to require the Guaranteed Obligations in the event that Acquiror or Merger Sub becomes subject to bankruptcy, reorganization or similar proceedings, and the failure of the Company to so file shall not affect Parent Guarantor’s obligations hereunder. In the event that any resort be had by any Holder or payment to the Trustee to any security held for payment Company in respect of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation Obligations is rescinded or must otherwise be restored by returned for any Holder reason whatsoever (other than in circumstances where Parent Guarantor is not liable to make such payment), Parent Guarantor shall remain liable hereunder with respect to the Guaranteed Obligations as if such payment had not been rescinded or the Trustee upon the bankruptcy or reorganization returned. Parent Guarantor hereby waives promptness, diligence, presentment, demand of the Company or otherwise.
(g) In furtherance performance, demand of the foregoing and not in limitation payment, filing of any other claim, any right which to require any Holder proceeding first against Acquiror or Merger Sub, protest, notice of any kind and all demands whatsoever and all suretyship defenses generally in connection with the Trustee has at law or performance of its covenants, agreements and obligations set forth in equity against Holdings by virtue hereof, upon this Section 13.17. Notwithstanding the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cashforegoing, to the Holders extent Acquiror or the Trustee an amount equal to the sum Merger Sub is relieved of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity or any portion of the Guaranteed Obligations Guaranteed hereby may by satisfaction thereof on the terms and subject to the conditions set forth in this Agreement or pursuant to any other agreement with the Company, Parent Guarantor shall be accelerated as provided similarly relieved of its corresponding obligations under this Section 13.17. Parent Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by this Agreement and that the waivers set forth in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration this Section 13.17 are knowingly made in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration contemplation of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenturebenefits. [Signature pages follow.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.]
Appears in 1 contract
Parent Guarantee. The Company hereby fully, irrevocably and unconditionally guarantees (a) Holdings hereby agrees such guarantee to become a party be referred to herein as the Indenture as a Guarantor and in accordance with the amendments "PARENT GUARANTEE"), to the terms each of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder Holders and to the Trustee and its their respective successors and assigns that (i) the Guaranteed Obligations principal of and interest on the Subsidiary Issuer Notes will be promptly paid in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewedfull when due, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reductionapplicable grace period, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreementwhether at maturity, by any waiver or modification of any thereof, by any default, failure or delay, willful acceleration or otherwise, in and interest on the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may beoverdue principal, if at any time paymentany, or any part thereof, of principal of or premium (if any) on or and interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or interest, if any, to the Trustee upon the bankruptcy or reorganization extent lawful, of the Company or otherwise.
(g) In furtherance Subsidiary Issuer Notes and all other obligations of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, Subsidiary Issuer to the Holders or the Trustee an amount equal hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any of the Subsidiary Issuer Notes or of any such other obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise, subject, however, in the case of CLAUSES (i) and (ii) above, to the sum limitations set forth in SECTION 10.05. The Company hereby agrees that its obligations hereunder shall be unconditional, irrespective of (1) the unpaid validity, regularity or enforceability of the Subsidiary Issuer Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any of the Holders with respect to any provisions hereof or thereof, the recovery of any judgment against the Subsidiary Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Company with respect to the Parent Guarantee. The Company hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Subsidiary Issuer, any right to require a proceeding first against the Subsidiary Issuer, protest, notice and all demands whatsoever and covenants that this Parent Guarantee will not be discharged except by complete performance of the obligations contained in the Subsidiary Issuer Notes, this Agreement and in this Parent Guarantee. If any Holder or the Trustee is required by any court or otherwise to return to the Subsidiary Issuer, the Parent Guarantor, Subsidiary Issuer Guarantor, the Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to the Subsidiary Issuer, the Company, or the Guarantors, any amount of paid by the Parent Guarantor, Subsidiary Issuer, the Company or any Guarantor to the Trustee or such Guaranteed ObligationsHolder, (2) accrued and unpaid interest on such Guaranteed Obligations (but only this Parent Guarantee, to the extent not prohibited by law) theretofore discharged, shall be reinstated in full force and (3) all other monetary Guaranteed Obligations of the effect. The Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between itthe Parent Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed obligations guaranteed hereby may be accelerated as provided in Article 6 of the Indenture ARTICLE SIX for the purposes of the this Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6 of the IndentureARTICLE SIX, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by Holdings the Company for the purposes purpose of Section 10.01 of the Indenturethis Parent Guarantee.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: Indenture (Hockey Co)
Parent Guarantee. (a) Holdings hereby agrees In order to become a party induce the Company to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of enter into this Supplemental Indenture, to be substituted for STX as “Parent” under the IndentureAgreement, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the IndentureGuarantor hereby absolutely, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and (the “Guarantee”) to the Trustee Company the full and its successors punctual payment of all amounts that are or may become due and assigns payable by Parent and Merger Sub hereunder, including the payment of any damages if applicable (collectively, the “Guaranteed Obligations”). If Parent or Merger Sub shall fail to perform such Guaranteed Obligations pursuant to the terms and conditions of this Agreement, the Guarantor shall be obligated to pay such amounts as and when the same become due and payable and perform or cause to be performed such obligations of Parent or Merger Sub, as applicable, in accordance with Article 10 such terms and conditions. This Guarantee is intended to constitute a guarantee of payment and performance and not merely a guarantee of collection and shall not be conditioned upon the pursuit of any remedies against Parent or Merger Sub. If Guarantor fails to fully pay any Guaranteed Obligations when due, it shall also pay any reasonable out-of-pocket fees, costs and expenses incurred by the Company in connection with enforcing this Section 9.14 (including by Action), together with interest on such unpaid amount, at a rate per annum, compounded monthly, equal to the rate of interest published in The Wall Street Journal as of the Indentureprime lending rate plus two percent (2.00%) per annum from the date such amount was required to be paid to (but excluding) the payment date.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee Guarantor pursuant to this Section 9.14 shall not be affected by:
i. unconditional and absolute, shall remain in full force and effect until such time as all Guaranteed Obligations have been paid in full. Notwithstanding anything to the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under contrary contained in this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwiseAgreement, in the performance event that any payment to the Company in respect of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by returned for any Holder reason whatsoever, this Section 9.14 shall continue to be effective or be reinstated pursuant to the Trustee upon terms hereof, as the bankruptcy or reorganization of case may be, and the Company or otherwiseGuarantor shall remain liable hereunder with respect to the Guaranteed Obligations as if such payment had not been made.
(gc) In furtherance The obligations of the foregoing and Guarantor pursuant to this Section 9.14 shall not in limitation of any other right which any Holder or the Trustee has at law be released, discharged, assigned or in equity against Holdings by virtue hereofany way affected by: (i) any failure, upon omission or delay on the failure part of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other term of this Agreement, or any acceleration, extension, renewal, settlement, compromise, waiver or release in any respect of any Guaranteed Obligation, Holdings hereby promises to and shallby operation of law or otherwise; (ii) any waiver, upon receipt amendment or supplement of written demand by the Trustee, forthwith payany term of this Agreement, or cause to be paidthe invalidity or unenforceability, in cashwhole or in part, of this Agreement; (iii) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, assignment for the benefit of creditors, receivership, liquidation or similar proceedings with respect to the Guarantor or Parent or Merger Sub; (iv) any merger or consolidation of the Guarantor or Parent or Merger Sub into or with any other Person, or the sale, lease or transfer of any of the assets of the Guarantor or Parent or Merger Sub to any other Person; (v) any change in ownership of any shares of capital stock of the Guarantor or Parent or Merger Sub, any change in corporate relationship between the Guarantor and Parent or Merger Sub, or any termination of such relationship; (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against the Company, whether in connection with the Guaranteed Obligations or otherwise; or (vii) the adequacy of any other means that the Company may have of obtaining payment of the Guaranteed Obligations. The Guarantor reserves the right to assert defenses that Parent or Merger Sub may have to payment of the Guaranteed Obligations, other than defenses arising from the bankruptcy or insolvency of Parent or Merger Sub.
(d) The Guarantor irrevocably waives, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligationsfull extent permitted by applicable Law, (2i) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations notice of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity incurrence of any of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 or of the Indenture for the purposes of the any breach or default by Parent Guarantee, notwithstanding or Merger Sub with respect to any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed herebyor any other notice that may be required by statute, rule of law or otherwise to preserve any of the rights of the Company against the Guarantor; (ii) presentment to and demand of payment from the Guarantor or Parent or Merger Sub with respect to any Guaranteed Obligation; and (yiii) in the event any and all rights or defenses arising by reason of any declaration applicable Law that would otherwise require any election of acceleration remedies by the Company. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Section 9.14 are knowingly made in contemplation of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenturebenefits.
(ie) Holdings also agrees Guarantor hereby makes the representations and warranties set forth in Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.6, Section 4.10 and Section 4.11, with respect to pay itself, mutatis mutandis.
(f) These provisions have been provided as a further material inducement to the Company to enter into the Transactions, and are in addition to and not lieu of, nor shall they in any respect be deemed to limit, the rights and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee remedies available to them with respect to any breach or any Holder in enforcing any rights under Section 10.01 termination of the Indenturethis Agreement.
Appears in 1 contract
Parent Guarantee. (a) Holdings The Parent Guarantor hereby agrees to become a party to unconditionally guarantees the Indenture as a Guarantor and in accordance with the amendments to the terms punctual payment when due, whether at stated maturity, by acceleration or otherwise, of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all monetary obligations of the obligations and agreements of Parent Issuer under the Indenture, the Notes this Second Supplemental Indenture and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to Notes, whether for principal or interest on the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Notes, expenses, indemnification or otherwise (all such obligations of the IndentureParent Guarantor being herein referred to as the “Parent Guaranteed Obligations”).
(b) Holdings further agrees It is the intention of the Parent Guarantor that the Guaranteed Obligations may Parent Guarantee not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to the Parent Guarantee. To effectuate the foregoing intention, the amount guaranteed by the Parent Guarantor under the Parent Guarantee shall be extended or renewedlimited to the maximum amount as will, in whole or in part, without notice or further assent from Holdings after giving effect to such maximum amount and that Holdings will remain bound by Article 10 all other contingent and fixed liabilities of the Indenture notwithstanding any extension Parent Guarantor that are relevant under such laws, result in the obligations of the Parent Guarantor under the Parent Guarantee not constituting a fraudulent transfer or renewal of any Guaranteed Obligationconveyance.
(c) Holdings waives presentation toThe Parent Guarantor guarantees that the Parent Guaranteed Obligations will be paid strictly in accordance with the terms of this Second Supplemental Indenture, demand of, payment from and protest to Holdings regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holders of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligationswith respect thereto. The obligations liability of Holdings the Parent Guarantor under the Parent Guarantee shall not be affected byabsolute and unconditional irrespective of:
i. the failure (i) any lack of validity, enforceability or genuineness of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under provision of this Second Supplemental Indenture, the Notes or any other agreement or otherwiseinstrument relating thereto;
(ii. ) any extension change in the time, manner or renewal place of payment of, or in any thereof;
iii. any rescissionother term of, waiver, amendment all or modification of any of the terms or provisions of this IndentureParent Guaranteed Obligations, the Notes or any other agreementamendment or waiver of or any consent to departure from this Second Supplemental Indenture;
iv. the (iii) any exchange, release or non-perfection of any security held by collateral, or any Holder release or the Trustee amendment or waiver of or consent to departure from any other guarantee, for the obligations of all or any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Parent Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of (iv) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Indenture, any change in the ownership of HoldingsIssuer or a guarantor.
(d) Holdings further The Parent Guarantor covenants and agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right its obligation to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes make payments of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect Guaranteed Obligations hereunder constitutes an unsecured obligation of the Guaranteed Obligations guaranteed hereby, Parent Guarantor ranking pari passu with all existing and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 future senior unsecured indebtedness of the Indenture, such Guaranteed Obligations (whether or Parent Guarantor that is not due and payable) shall forthwith become due and payable by Holdings for subordinated in right of payment to the purposes of Section 10.01 of the IndentureParent Guarantee.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns assigns:
(a) the Guaranteed Obligations in accordance with Article 10 full and punctual payment of principal of, premium (if any) on and interest on the Notes when the same becomes due and payable at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise, and all other monetary obligations of the Indenture.Company under this Indenture and the Notes; and
(b) Holdings the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing under (a) and (b) of this Section 11.01 being hereinafter collectively called the “Guaranteed Obligations”). Parent further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings Parent and that Holdings Parent will remain bound by under this Article 10 of the Indenture 11 notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings . Parent waives presentation to, demand of, payment from and protest to Holdings the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings Parent waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee hereunder shall not be affected by:
i. (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise;
(ii. ) any extension or renewal of any thereof;
(iii. ) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
(iv. ) the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. (v) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
(vi. ) except as set forth in Section 10.05 of the Indenture11.05, any change in the ownership of Holdings.
(d) Holdings Parent. Parent further agrees that the Parent Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) . Except as expressly set forth in Sections 8.02 9.02 and 10.05 of the Indenture11.05, the obligations of Holdings under the Parent Guarantee hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this the Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings Parent or would otherwise operate as a discharge of Holdings Parent as a matter of law or equity.
(f) Holdings . Parent further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) . In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings Parent by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings Parent hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings . Parent further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent GuaranteeGuarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings Parent for the purposes of Section 10.01 of the Indenture.
(i) Holdings this Section. Parent also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenturethis Section.
Appears in 1 contract
Samples: Indenture (Seagate Technology)
Parent Guarantee. (a) Holdings The provisions of this Article 14 shall not be effective until the Escrow Release Date whereupon the Parent Guarantor will hereby agrees to become irrevocably and unconditionally guarantee on a party to the Indenture senior basis, as a Guarantor primary obligor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenturenot merely as a surety, to be substituted for STX as “Parent” under the Indentureeach Holder, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the IndentureTrustee, the Notes Collateral Agent and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its their successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings Obligations. The Parent Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings the Parent Guarantor, and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any no extension or renewal of any Guaranteed Obligation.
(c) Holdings Obligation shall release the obligations of the Parent Guarantor hereunder. The obligations of the Parent Guarantor hereunder shall be joint and several with the Subsidiary Guarantees of the Subsidiary Guarantors. The Parent Guarantor waives presentation to, demand of, of payment from and protest to Holdings the Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings The Parent Guarantor waives notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee Guarantor hereunder shall not be affected by:
i. by (i) the failure of any Holder Holder, the Trustee or the Trustee Collateral Agent to assert any claim or demand or to enforce any right or remedy against Holdings the Issuer or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise;
; (ii. ) any extension or renewal of this Indenture, the Securities or any thereof;
other agreement; (iii. ) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement;
; (iv. ) the release of any security held by any the Collateral Agent on behalf of each Holder or and the Trustee for the obligations of Guaranteed Obligations or any of them;
v. Subsidiary Guarantor; or (v) the failure of any Holder Holder, the Trustee or the Trustee Collateral Agent to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 The Parent Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among itself and the Subsidiary Guarantors, such that the Parent Guarantor’s obligations would be less than the full amount claimed. The Parent Guarantor hereby waives any right to which it may be entitled to have the assets of the Indenture, Issuer first be used and depleted as payment of the Issuer’s or the Parent Guarantor’s obligations hereunder prior to any change in amounts being claimed from or paid by the ownership of Holdings.
(d) Holdings Parent Guarantor hereunder. The Parent Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against the Parent Guarantor. The Parent Guarantor further agrees that the its Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Trustee Collateral Agent to any security held for payment of the Guaranteed Obligations.
(eb) The Parent Guarantee of the Parent Guarantor is, to the extent and in the manner set forth herein, equal in right of payment to all existing and future Parent Pari Passu Indebtedness and senior in right of payment to all existing and future Parent Subordinated Indebtedness and is made subject to such provisions of this Indenture.
(c) Except as expressly set forth in Sections 8.02 and 10.05 Section 8.01(b) of the this Indenture, the obligations of Holdings under the Parent Guarantee Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee Guarantor shall not be discharged or impaired or otherwise affected by the failure of any Holder Holder, the Trustee or the Trustee Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings the Parent Guarantor or would otherwise operate as a discharge of Holdings the Parent Guarantor as a matter of law or equity.
(fd) Holdings The Parent Guarantor agrees that its Parent Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. The Parent Guarantor further agrees that the its Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder Holder, the Trustee or the Trustee Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: Indenture (Berry Global Group Inc)
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as DCP Midstream Partners, LP shall be a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the 2022 Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Sixteen of the Original Indenture.
. For the purposes of this Second Supplemental Indenture and the 2022 Notes (b) Holdings further agrees that including without limitation the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 provisions of the Original Indenture notwithstanding any extension to the extent applicable thereto), the term “Guarantor” (and such derivative terms as are herein or renewal therein used) shall mean DCP Midstream Partners, LP, and accordingly, the Guarantee of any Guaranteed Obligation.
(c) Holdings waives presentation toDCP Midstream Partners, demand ofLP shall be a Guarantee with respect to the Indenture and the 2022 Notes; provided, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent however, that such Guarantee shall not be affected by:
i. apply to any obligations under any series of Securities other than the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii2022 Notes. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as To evidence its Guarantee set forth in Section 10.05 Article Sixteen of the Original Indenture (as amended and supplemented by this Second Supplemental Indenture), any change the Guarantor hereby agrees that a notation of such Guarantee substantially in the ownership form attached as Annex B hereto will be endorsed by an Officer of Holdings.
(d) Holdings further the Guarantor on each 2022 Note authenticated and delivered by the Trustee and that this Second Supplemental Indenture will be executed on behalf of the Guarantor by one of its Officers. The Guarantor hereby agrees that the Parent its Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 Article Sixteen of the Original Indenture (as amended and supplemented by this Second Supplemental Indenture) will remain in full force and effect notwithstanding any failure to endorse on each 2022 Note a notation of such Guarantee. If an Officer whose signature is on this Second Supplemental Indenture or on the Guarantee no longer holds that office at the time the Trustee authenticates the 2022 Note on which a Guarantee is endorsed, the obligations of Holdings under the Parent Guarantee shall not will be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwisevalid nevertheless. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure The delivery of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand 2022 Note by the Trustee, forthwith payafter the authentication thereof hereunder, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations will constitute due delivery of the Company to Guarantee set forth in the Holders and the Trustee.
(h) Holdings further agrees that, as between it, Indenture on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity behalf of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the IndentureGuarantor.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: Second Supplemental Indenture (DCP Midstream Partners, LP)
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as DCP Midstream Partners, LP shall be a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the 2017 Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Sixteen of the Original Indenture.
. For the purposes of this Fourth Supplemental Indenture and the 2017 Notes (b) Holdings further agrees that including without limitation the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 provisions of the Original Indenture notwithstanding any extension to the extent applicable thereto), the term “Guarantor” (and such derivative terms as are herein or renewal therein used) shall mean DCP Midstream Partners, LP, and accordingly, the Guarantee of any Guaranteed Obligation.
(c) Holdings waives presentation toDCP Midstream Partners, demand ofLP shall be a Guarantee with respect to the Indenture and the 2017 Notes; provided, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent however, that such Guarantee shall not be affected by:
i. apply to any obligations under any series of Securities other than the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii2017 Notes. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as To evidence its Guarantee set forth in Section 10.05 Article Sixteen of the Original Indenture (as amended and supplemented by this Fourth Supplemental Indenture), any change the Guarantor hereby agrees that a notation of such Guarantee substantially in the ownership form attached as Annex B hereto will be endorsed by an Officer of Holdings.
(d) Holdings further the Guarantor on each 2017 Note authenticated and delivered by the Trustee and that this Fourth Supplemental Indenture will be executed on behalf of the Guarantor by one of its Officers. The Guarantor hereby agrees that the Parent its Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 Article Sixteen of the Original Indenture (as amended and supplemented by this Fourth Supplemental Indenture) will remain in full force and effect notwithstanding any failure to endorse on each 2017 Note a notation of such Guarantee. If an Officer whose signature is on this Fourth Supplemental Indenture or on the Guarantee no longer holds that office at the time the Trustee authenticates the 2017 Note on which a Guarantee is endorsed, the obligations of Holdings under the Parent Guarantee shall not will be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwisevalid nevertheless. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure The delivery of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand 2017 Note by the Trustee, forthwith payafter the authentication thereof hereunder, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations will constitute due delivery of the Company to Guarantee set forth in the Holders and the Trustee.
(h) Holdings further agrees that, as between it, Indenture on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity behalf of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the IndentureGuarantor.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: Fourth Supplemental Indenture (DCP Midstream Partners, LP)
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a The Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 assigns, irrespective of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended validity or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions enforceability of this Indenture, the Notes or any the obligations of the Company under this Indenture or the Notes, that: (i) the principal of, premium (if any) and interest on the Notes will be paid in full when due, whether at the maturity or interest payment date, by acceleration, call for redemption or otherwise, and interest on the overdue principal of, interest on the Notes and all other agreement;
iv. obligations of the release of any security held by any Holder Company to the Holders or the Trustee for under this Indenture or the obligations Notes will be promptly paid in full or performed, all in accordance with the terms of this Indenture and the Notes; and (ii) in case of any extension of them;
v. the failure time in payment or renewal of any Holder Notes or any of such other obligations, they will be paid in full when due or performed in accordance with the Trustee to exercise any right or remedy against any other guarantor terms of the Guaranteed Obligations; or
viextension or renewal, whether at maturity, by acceleration or otherwise. except as set forth in Failing payment when due of any amount so guaranteed for whatever reason, the Guarantor will be obligated to pay the same whether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further 6.02 hereof. The Guarantor agrees that the Parent Guarantee constitutes this is a guarantee of payment, performance and compliance when due (and payment not a guarantee of collection) and waives any right . The Guarantor hereby agrees that its obligations with regard to require that any resort this Parent Guarantee shall be had by any Holder unconditional, irrespective of the validity or enforceability of the Notes or the Trustee to any security held for payment obligations of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Company under this Indenture, the obligations absence of Holdings under any action to enforce the Parent Guarantee shall not be subject same, the recovery of any judgment against the Company or any other obligor with respect to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings the Company under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder this Indenture or the Trustee to assert Notes, any claim or demand or action to enforce any remedy under this Indenture, the Notes same or any other agreementcircumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of the Guarantor. The Guarantor further, to the extent permitted by any waiver law, waives and relinquishes all claims, rights and remedies accorded by applicable law to guarantors and agrees not to assert or modification take advantage of any thereofsuch claims, by rights or remedies, including but not limited to: (a) any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay right to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by require the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal Company (each, a "Benefitted Party") to proceed against the sum of Company or any other Person or to proceed against or exhaust any security held by a Benefitted Party at any time or to pursue any other remedy in any Benefitted Party's power before proceeding against the Guarantor; (1b) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations defense of the Company statute of limitations in any action hereunder or in any action for the collection of any Indebtedness or the performance of any obligation hereby guaranteed; (c) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or the failure of a Benefitted Party to file or enforce a claim against the Holders estate (in administration, bankruptcy or any other proceeding) of any other Person; (d) demand, protest and notice of any kind including but not limited to notice of the Trustee.
(h) Holdings further agrees thatexistence, as between it, creation or incurring of any new or additional Indebtedness or obligation or of any action or non-action on the one handpart of the Guarantor, and the Holders and Company, any Benefitted Party, any creditor of the TrusteeGuarantor, the Company or on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event part of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.other Person whomsoever in
Appears in 1 contract
Samples: Indenture (Scotsman Industries Inc)
Parent Guarantee. (a) Holdings hereby agrees Whenever in this Agreement the performance of or compliance with a covenant or obligation set forth in this Agreement (the “Seller Guaranteed Obligations”) is expressed to become a party be required by Seller or its Affiliates, Seller Parent shall cause Seller and its Affiliates to punctually perform or comply with such Seller Guaranteed Obligation. Subject to the Indenture as provisions of this Agreement, if any Seller Guaranteed Obligation is not performed by Seller or its Affiliates when due, Seller Parent shall (subject to the provisions of this Agreement), within ten (10) Business Days following the written request of Buyer when such Seller Guaranteed Obligation is required to be performed pursuant to this Agreement, (i) pay or cause Seller or its Affiliates to pay in full in cash any of such Seller Guaranteed Obligation that is in the nature of a Guarantor payment obligation, and (ii) perform or cause Seller or its Affiliates to perform any of such Seller Guaranteed Obligation that is not in the nature of a payment obligation, to the extent due but not already paid or performed. In the event Seller Parent fails to so pay or perform (or cause such payment or performance by Seller or its Affiliates) such Seller Guaranteed Obligation (subject to the provisions of this Agreement), Buyer may, in addition to any and all other rights and remedies that may be available to Buyer in respect of such failure to so pay or perform (or cause such payment or performance by Seller or its Affiliates), thereafter initiate a proceeding to pursue any rights available thereto against Seller or its Affiliates, or Seller Parent, or both (at the election of Buyer) in respect of all Seller Guaranteed Obligations that have not then been paid or performed within ten (10) Business Days following the written request of Buyer contemplated by the preceding sentence. Buyer may continue to pursue such rights and remedies in respect of such Seller Guaranteed Obligation until the earlier of (x) the payment or performance of such Seller Guaranteed Obligation in accordance with the amendments to the terms of the Indenture made in Section 2 provisions of this Supplemental IndentureAgreement, to be substituted for STX as “and (y) the final disposition of such proceeding in a final, non-appealable order of a court of competent jurisdiction or binding settlement agreement. Seller Parent” ’s obligations under this Section 4.11(a) shall survive the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the IndentureClosing.
(b) Holdings further agrees that Whenever in this Agreement the Guaranteed Obligations may be extended performance of or renewed, in whole compliance with a covenant or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as obligation set forth in Section 10.05 of this Agreement (the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the “Buyer Guaranteed Obligations.
(e”) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue is expressed to be effective required by Buyer or be reinstatedits Affiliates, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing Buyer Parent shall cause Buyer and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company its Affiliates to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to punctually perform or comply with any other such Buyer Guaranteed Obligation. Subject to the provisions of this Agreement, Holdings hereby promises if any Buyer Guaranteed Obligation is not performed by Buyer or its Affiliates when due, Buyer Parent shall (subject to and shallthe provisions of this Agreement), upon receipt within ten (10) Business Days following the written request of written demand by the TrusteeSeller when such Buyer Guaranteed Obligation is required to be performed pursuant to this Agreement, forthwith pay, (i) pay or cause Buyer or its Affiliates to be paidpay in full in cash any of such Buyer Guaranteed Obligation that is in the nature of a payment obligation, and (ii) perform or cause Buyer or its Affiliates to perform any of such Buyer Guaranteed Obligation that is not in cashthe nature of a payment obligation, to the Holders extent due but not already paid or performed. In the Trustee an amount equal event Buyer Parent fails to so pay or perform (or cause such payment or performance by Buyer or its Affiliates) such Buyer Guaranteed Obligation (subject to the sum provisions of (1) the unpaid amount this Agreement), Seller may, in addition to any and all other rights and remedies that may be available to Seller in respect of such Guaranteed Obligationsfailure to so pay or perform (or cause such payment or performance by Buyer or its Affiliates), thereafter initiate a proceeding to pursue any rights available thereto against Buyer or its Affiliates, or Buyer Parent, or both (2at the election of Seller) accrued and unpaid interest on such in respect of all Buyer Guaranteed Obligations that have not then been paid or performed within ten (but only 10) Business Days following the written request of Seller contemplated by the preceding sentence. Seller may continue to pursue such rights and remedies in respect of such Buyer Guaranteed Obligation until the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations earlier of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity payment or performance of such Buyer Guaranteed Obligation in accordance with the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 provisions of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed herebythis Agreement, and (y) in the event of any declaration of acceleration final disposition of such Guaranteed Obligations as provided proceeding in Article 6 a final, non-appealable order of the Indenture, such Guaranteed Obligations (whether a court of competent jurisdiction or not due and payablebinding settlement agreement. Buyer Parent’s obligations under this Section 4.11(b) shall forthwith become due and payable by Holdings for survive the purposes of Section 10.01 of the IndentureClosing.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: Asset Purchase Agreement (Travelcenters of America LLC)
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns assigns:
(a) the Guaranteed Obligations in accordance with Article 10 full and punctual payment of principal of, premium (if any) on and interest on the Notes when the same becomes due and payable at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise, and all other monetary obligations of the Indenture.Company under this Indenture and the Notes; and
(b) Holdings the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Parent further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings Parent and that Holdings Parent will remain bound by under this Article 10 of the Indenture 11 notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings . Parent waives presentation to, demand of, payment from and protest to Holdings the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings Parent waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee hereunder shall not be affected by:
i. (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise;
(ii. ) any extension or renewal of any thereof;
(iii. ) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
(iv. ) the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. (v) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
(vi. ) except as set forth in Section 10.05 of the Indenture11.05, any change in the ownership of Holdings.
(d) Holdings Parent. Parent further agrees that the Parent Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) . Except as expressly set forth in Sections 8.02 9.02 and 10.05 of the Indenture11.05, the obligations of Holdings under the Parent Guarantee hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this the Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings Parent or would otherwise operate as a discharge of Holdings Parent as a matter of law or equity.
(f) Holdings . Parent further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) . In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings Parent by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings Parent hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings . Parent further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent GuaranteeGuarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings Parent for the purposes of Section 10.01 of the Indenture.
(i) Holdings this Section. Parent also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenturethis Section.
Appears in 1 contract
Parent Guarantee. Parent hereby irrevocably, absolutely, fully and unconditionally guarantees (athe “Parent Guarantee”) Holdings hereby to Seller, the Company, the Seller Group and their respective successors and permitted assigns the prompt and complete performance of all of Buyer’s obligations under this Agreement. Xxxxxx agrees that the Parent Guarantee is a primary obligation of Parent and that Seller, the Company, the Seller Group and/or their respective successors and permitted assigns may enforce the Parent Guarantee without the necessity at any time of resorting to become or exhausting any other security or collateral. This is a party to the Indenture as a Guarantor guarantee of Buyer’s payment and in accordance with the amendments to the terms performance of the Indenture made Buyer’s obligations under this Agreement when and as due and not merely of collection. Parent agrees that the guarantee set forth in this Section 2 14.16 shall not be discharged except by the complete and irrevocable performance of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights Buyer’s obligations under this Agreement. Parent reserves the right to assert any and be subject all defenses which Buyer may assert against Seller under this Agreement with respect to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended payment or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings performance of any of the Guaranteed Obligations Buyer’s obligations under this Agreement. Parent hereby expressly waives diligence, presentment, protest and also waives notice of protest for nonpayment. Holdings waives notice of all notices whatsoever and any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of requirement that Seller exhaust any Holder or the Trustee to assert any claim or demand or to enforce any right right, power or remedy or proceed against Holdings or any other Person Buyer under this Indenture, the Notes Agreement or any other agreement or otherwise;
iiinstrument referred to herein or therein. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any Each of the terms or provisions Parties has executed this Agreement as of the date first written above. SELLER: By: /s/ Xxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxx Title: Chief Executive Officer COMPANY: By: /s/ Xxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxx Title: Chief Executive Officer CRESCENT ENERGY FINANCE, LLC By: /s/ Xxxx Xxxx Name: Xxxx Xxxx Title: Vice President CRESCENT ENERGY COMPANY By: /s/ Xxxx Xxxx Name: Xxxx Xxxx Title: Executive Vice President, Investments This REGISTRATION RIGHTS AGREEMENT (this Indenture“Agreement”), dated as of [•], is entered into by and between Crescent Energy Company, a Delaware corporation (the “Company”) and Ridgemar Energy Operating, LLC, a Delaware limited liability company (the “Initial Holder” and, together with the Company, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings“Parties”).
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Crescent Energy Co)
Parent Guarantee. (a) Holdings Buyer Parent hereby agrees to become a party to absolutely, unconditionally and irrevocably guarantees (the Indenture “Guarantee”), as principal and not as a Guarantor surety, to Seller (i) the prompt and complete payment in accordance with the amendments full as and when due and payable by Buyer (and its successors and permitted assigns) of any and all amounts payable by Buyer pursuant to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the IndentureAgreement (such payment obligations, the Notes “Guaranteed Payments”), and (ii) the Parent Guarantee. Holdings shall have all of the rights prompt and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee complete performance in full by Buyer (and its successors and assigns assigns) of its other obligations under the terms of this Agreement (the “Guaranteed Obligations”). The Guaranteed Payments and Guaranteed Obligations in accordance with Article 10 are sometimes referred to herein collectively as the “Obligations.” If for any reason Buyer shall fail or be unable promptly and fully to pay any Guaranteed Payment as and when the same shall be due and payable hereunder or to perform any Guaranteed Obligation, Buyer Parent shall forthwith pay or cause to be paid such Guaranteed Payment to Seller or shall forthwith perform or cause to be performed such Guaranteed Obligation, as the case may be, and Seller shall not be obligated to pursue remedies against Buyer as a condition to enforcement of the IndentureGuarantee. Buyer Parent represents and warrants to Seller that it has the full corporate power and authority to provide the Guarantee, to perform its obligations with respect thereto and to execute this Agreement for the purposes thereof. The provision of the Guarantee, the performance of Buyer Parent’s obligations with respect thereto and the execution and delivery of this Agreement for purposes of this Section 5.14 have been duly and validly authorized and approved by all requisite corporate action of Buyer Parent and no other acts or proceedings on its part are necessary with respect thereto.
(b) Holdings further agrees that The obligations of Buyer Parent under the Guaranteed Guarantee constitute a present and continuing guarantee of payment and performance, and not of collectability. Subject to Section 5.14(f), the liability of Buyer Parent under this Section 5.14 shall be absolute, unconditional, present, continuing and irrevocable until all of the Obligations may be extended have been indefeasibly paid in full or renewedperformed, as applicable, irrespective of:
(i) any permitted assignment or other transfer of this Agreement or any of the rights hereunder of Buyer hereunder;
(ii) any amendment, waiver, renewal or extension of, or release or consent under, this Agreement, in whole each case other than in respect of this Section 5.14;
(iii) any acceptance by Seller of partial payment or performance from Buyer;
(iv) any bankruptcy, insolvency, reorganization, arrangement, composition, adjustment, dissolution, liquidation or other like proceeding relating to Buyer, or any action taken with respect to this Agreement by any trustee or receiver, or by any court, in partany such proceedings; or
(v) any absence of any notice to, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 knowledge of, Buyer Parent of the Indenture notwithstanding any extension existence or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings occurrence of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as matters set forth in the foregoing subsections (i) through (iv). Subject to Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture5.14(f), the obligations Obligations of Holdings under the Buyer Parent Guarantee hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim claims of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of or setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes Obligations or otherwise. Without limiting , provided that nothing contained in this Section 5.14 shall limit the generality ability of Buyer or Buyer Parent to bring any action or claim under this Agreement.
(c) The Guarantee is a continuing Guarantee and shall (i) remain in full force and effect until the complete performance of all of the foregoingObligations and the indefeasible payment in full of all of the Guaranteed Payments, (ii) be binding upon Buyer Parent, its successors and permitted assigns and (iii) inure to the benefit of and be enforceable by Seller and its successors, transferees and permitted assigns; provided, however, that the obligations of Holdings under the Buyer Parent Guarantee shall in this Section 5.14 may not be discharged assigned, transferred or impaired delegated without the prior written consent of Seller. Any attempted assignment or otherwise affected by the failure transfer in violation of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equitySection 5.14(c) shall be void.
(fd) Holdings further agrees that Buyer Parent hereby waives promptness, diligence, all setoffs, presentments, protests and notice of acceptance and any other notice relating to any of the Obligations or this Section 5.14.
(e) The obligations of Buyer Parent Guarantee under this Section 5.14 shall continue to be effective or shall be reinstated, as the case may be, if at any time payment, or any part thereof, payment of principal any of or premium (if any) on or interest on any the Guaranteed Obligation Payments is rescinded or must otherwise be restored by any Holder returned to Buyer or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith payentity, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity any of the Guaranteed Obligations Guaranteed hereby may be accelerated is rescinded or annulled, upon the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation or reorganization of Buyer, as though such payment had not been made or performance had not occurred, as applicable.
(f) Seller agrees that notwithstanding anything contained herein to the contrary, except as provided in Article 6 the last sentence of this Section 5.14(f), Buyer Parent shall not be obligated to pay or perform any Obligation hereunder to the Indenture for the purposes extent that Buyer is not required to pay or perform such Obligation as a result of the Parent Guaranteeany right or offset, notwithstanding any stay, injunction counterclaim or other prohibition preventing defense available to Buyer with respect to such acceleration Obligation in respect accordance with the provisions of this Agreement (collectively, a “Purchaser Defense”). In furtherance thereof, Buyer Parent shall be entitled to assert any Purchaser Defense to the Guaranteed same extent that any such Purchaser Defense could be asserted by Buyer in any action brought by Seller to enforce the Obligations guaranteed herebyagainst Buyer. Notwithstanding the foregoing provisions of this Section 5.14(f), and (y) in no event shall any stay or discharge or other impairment of or limitation on the event Obligations as the result of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenturebankruptcy, such Guaranteed Obligations (whether insolvency, reorganization, arrangement, composition, adjustment, dissolution, liquidation or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees other like proceeding relating to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee Buyer or any Holder action taken with respect to this Agreement by any trustee or receiver, or by any court, in enforcing any rights under Section 10.01 of the Indenturesuch proceeding, give rise to any defense to payment or performance by Buyer Parent hereunder.
Appears in 1 contract
Parent Guarantee. (a) Holdings The Guarantor hereby agrees guarantees to become a party each Holder of the Notes the prompt payment in full when due (whether at stated maturity, by acceleration, by mandatory or optional prepayment or otherwise) of the principal of and Make-Whole Amount (if any) and interest on the Notes (including, without limitation, interest on any overdue principal, Make-Whole Amount and, to the Indenture as a extent permitted by Applicable Law, on any overdue interest) and all other amounts from time to time owing by the Company under this Agreement and under the Notes (including, without limitation, costs, expenses and Taxes) (such payment obligations being herein collectively called the “Guaranteed Obligations”). The Guarantor hereby further agrees that if the Company shall default in the payment in full of any of the Guaranteed Obligations, the Guarantor will (x) promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration, by mandatory or optional prepayment or otherwise) in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes such extension or renewal and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees (y) pay to each Holder and of the Notes such amounts, to the Trustee extent lawful, as shall be sufficient to pay the costs and its successors and assigns expenses of collection or of otherwise enforcing any of such Holder’s rights under this Agreement, including, without limitation, reasonable counsel fees to the Guaranteed Obligations in accordance with Article 10 of the Indentureextent required pursuant to Section 15.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 All obligations of the Indenture notwithstanding any extension or renewal Guarantor under this Section 2.3 shall survive the transfer of any Guaranteed ObligationNote, and any obligations of the Guarantor under this Section 2.3 with respect to which the underlying obligation of the Company is expressly stated to survive payment of any Note shall also survive payment of such Note.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person Guarantor under this IndentureSection 2.3 constitute a present and continuing guaranty of payment and not collectability and are absolute, unconditional and irrevocable, irrespective of the value, genuineness, validity, regularity or enforceability of the obligations of the Company under this Agreement, the Notes or any other agreement or otherwise;
ii. instrument referred to herein or therein, or any extension substitution, release or renewal exchange of any thereof;other guarantee of or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by Applicable Law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor (other than payment of the Guaranteed Obligations), it being the intent of this Section 2.3 that the obligations of the Guarantor hereunder shall be absolute, unconditional and irrevocable, under any and all circumstances. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Guarantor hereunder which shall remain absolute and unconditional as described above:
iii. (i) any rescission, waiver, amendment or modification of any provision of this Agreement, the Notes or any other agreement or any assignment or transfer thereof, including without limitation the renewal or extension of the terms time of payment of any of the Notes or provisions the granting of time in respect of such payment thereof, or of any furnishing or acceptance of security or any additional guarantee or any release of any security or guarantee so furnished or accepted for any of the Notes;
(ii) any waiver, consent, extension, granting of time, forbearance, indulgence or other action or inaction under or in respect of this IndentureAgreement, the Notes or any other agreement, or any exercise or non-exercise of any right, remedy or power in respect hereof or thereof;
(iii) any bankruptcy, receivership, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceedings with respect to the Company or any other Person or the properties or creditors of any of them;
(iv) the occurrence of any Default or Event of Default under, or any invalidity or any unenforceability of, or any misrepresentation, irregularity or other defect in, this Agreement, the Notes or any other agreement;
iv. the release (v) any transfer of any security held by assets to or from the Company, including without limitation any Holder transfer or purported transfer to the Trustee for the obligations of Company from any of them;
v. the failure of Person, any Holder invalidity, illegality of, or the Trustee inability to exercise enforce, any right such transfer or remedy against purported transfer, any other guarantor consolidation or merger of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the IndentureCompany with or into any Person, any change in the ownership of Holdings.any Equity Interests of the Company, or any change whatsoever in the objects, capital structure, constitution or business of the Company;
(dvi) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, on the part of the Company or any other Person to perform or comply with, or the impossibility or illegality of performance by the Company or any other Person of, any term of this Agreement, the Notes or any other agreement;
(vii) any suit or other action brought by, or any judgment in favor of, any beneficiaries or creditors of, the Company or any other Person for any reason whatsoever, including without limitation any suit or action in any way attacking or involving any issue, matter or thing in respect of this Agreement, the Notes or any other agreement;
(viii) any lack or limitation of status or of power, incapacity or disability of the Company or any trustee or agent thereof; or
(ix) any other thing, event, happening, matter, circumstance or condition whatsoever, not in any way limited to the foregoing.
(d) The Guarantor hereby unconditionally waives diligence, presentment, demand of payment, protest and all notices whatsoever and any requirement that any Holder exhaust any right, power or remedy against the Company under this Agreement or the Notes or any other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations.
(e) In the event that the Guarantor shall at any time pay any amount on account of the Guaranteed Obligations or take any other action in performance of its obligations hereunder, the obligationsGuarantor shall not exercise any subrogation or other rights hereunder or under the Notes and the Guarantor hereby waives all rights it may have to exercise any such subrogation or other rights, and all other remedies that it may have against the Company, in respect of any payment made hereunder unless and until the Guaranteed Obligations shall have been indefeasibly paid in full. If any amount shall be paid to the Guarantor on account of any such subrogation rights or other remedy prior to the indefeasible payment in full of the Guaranteed Obligations, notwithstanding the waiver thereof, such amount shall be received in trust for the benefit of the Holders of the Notes and shall forthwith be paid to such Holders to be credited and applied upon the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof. The Guarantor agrees that its obligations under this Section 2.3 shall be automatically reinstated if and to the extent that for any reason any payment (including payment in full) by or on behalf of the Company is rescinded or must be otherwise restored by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate Holder, whether as a discharge result of Holdings any proceedings in bankruptcy or reorganization or otherwise, all as a matter of law or equitythough such amount had not been paid.
(f) Holdings further If an event permitting the acceleration of the maturity of the principal amount of the Notes shall at any time have occurred and be continuing and such acceleration (and the effect thereof on the Guaranteed Obligations) shall at such time be prevented by reason of the pendency against the Company or any other Person of a case or proceeding under a bankruptcy or insolvency law, the Guarantor agrees that that, for purposes of the guarantee in this Section 2.3 and the Guarantor’s obligations under this Agreement and the Parent Guarantee Guarantee, the maturity of the principal amount of the Notes shall continue be deemed to have been accelerated (with a corresponding effect on the Guaranteed Obligations) with the same effect as if the Holders had accelerated the same in accordance with the terms of this Agreement, and the Guarantor shall forthwith pay such principal amount, any interest thereon, any Make-Whole Amounts and any other amounts guaranteed hereunder without further notice or demand.
(g) The guarantee in this Section 2.3 is a continuing guarantee and shall apply to the Guaranteed Obligations whenever arising. Each default in the payment of any of the Guaranteed Obligations shall give rise to a separate claim and cause of action hereunder, and separate claims or suits may be effective or be reinstatedmade and brought, as the case may be, if at any time paymenthereunder as each such default occurs. The Guarantor hereby acknowledges that the guarantee in this Section 2.3 constitutes an instrument for the payment of money, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by and consents and agrees that the any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has Notes, at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paidits sole option, in cashthe event of a dispute by such Guarantor in the payment of any moneys due hereunder, shall have the right to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trusteebring motion-action under New York CPLR Section 3213.
(h) Holdings further agrees thatEach Note shall have endorsed thereon a Parent Guarantee of the Guarantor as set forth below: “For value received, the undersigned hereby absolutely, unconditionally and irrevocably guarantees to the holder of the foregoing Note the due and punctual payment of the principal of, Make-Whole Amount, if any, and interest on said Note, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as more fully provided in Article 6 of the Indenture for the purposes of the Parent GuaranteeNote Purchase and Guarantee Agreement referred to in said Note. AMW I Holding, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.LLC By:________________ Name: Title: ”
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Parent Guarantee. (a) Holdings The Parent Guarantor hereby agrees to become a party to unconditionally guarantees the Indenture as a Guarantor and in accordance with the amendments to the terms punctual payment when due, whether at stated maturity, by acceleration or otherwise, of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all monetary obligations of the obligations and agreements of Parent Issuer under the Indenture, the Notes this Eighth Supplemental Indenture and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to Notes, whether for principal or interest on the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Notes, expenses, indemnification or otherwise (all such obligations of the IndentureParent Guarantor being herein referred to as the “Parent Guaranteed Obligations”).
(b) Holdings further agrees It is the intention of the Parent Guarantor that the Guaranteed Obligations may Parent Guarantee not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to the Parent Guarantee. To effectuate the foregoing intention, the amount guaranteed by the Parent Guarantor under the Parent Guarantee shall be extended or renewedlimited to the maximum amount as will, in whole or in part, without notice or further assent from Holdings after giving effect to such maximum amount and that Holdings will remain bound by Article 10 all other contingent and fixed liabilities of the Indenture notwithstanding any extension Parent Guarantor that are relevant under such laws, result in the obligations of the Parent Guarantor under the Parent Guarantee not constituting a fraudulent transfer or renewal of any Guaranteed Obligationconveyance.
(c) Holdings waives presentation toThe Parent Guarantor guarantees that the Parent Guaranteed Obligations will be paid strictly in accordance with the terms of this Eighth Supplemental Indenture, demand of, payment from and protest to Holdings regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holders of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligationswith respect thereto. The obligations liability of Holdings the Parent Guarantor under the Parent Guarantee shall not be affected byabsolute and unconditional irrespective of:
i. the failure (i) any lack of validity, enforceability or genuineness of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under provision of this Eighth Supplemental Indenture, the Notes or any other agreement or otherwiseinstrument relating thereto;
(ii. ) any extension change in the time, manner or renewal place of payment of, or in any thereof;
iii. any rescissionother term of, waiver, amendment all or modification of any of the terms or provisions of this IndentureParent Guaranteed Obligations, the Notes or any other agreementamendment or waiver of or any consent to departure from this Eighth Supplemental Indenture;
iv. the (iii) any exchange, release or non-perfection of any security held by collateral, or any Holder release or the Trustee amendment or waiver of or consent to departure from any other guarantee, for the obligations of all or any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Parent Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of (iv) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Indenture, any change in the ownership of HoldingsIssuer or a guarantor.
(d) Holdings further The Parent Guarantor covenants and agrees that its obligation to make payments of the Parent Guarantee Guaranteed Obligations hereunder constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment an unsecured obligation of the Guaranteed ObligationsParent Guarantor ranking pari passu with all existing and future senior unsecured indebtedness of the Parent Guarantor that is not subordinated in right of payment to the Parent Guarantee.
(e) Except as expressly set forth in Sections 8.02 The Parent Guarantor hereby waives promptness, diligence, notice of acceptance and 10.05 of the Indenture, the obligations of Holdings under any other notice with respect to the Parent Guarantee shall not be subject to and any reductionrequirement that the Trustee, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure Holders of any Holder Notes protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Issuer or any other agreement, by Person or any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equitycollateral.
(f) Holdings The Parent Guarantor hereby irrevocably waives any claims or other rights that it may now or hereafter acquire against the Issuer that arise from the existence, payment, performance or enforcement of the Parent Guarantor’s obligations under the Parent Guarantee or this Eighth Supplemental Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Trustee, or the Holders of any Notes against the Issuer or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Issuer, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to the Parent Guarantor in violation of the preceding sentence at any time prior to the cash payment in full of the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, such amount shall be held in trust for the benefit of the Trustee and the Holders of any Notes and shall forthwith be paid to the Trustee, to be credited and applied to the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, whether matured or unmatured, in accordance with the terms of this Eighth Supplemental Indenture and the Parent Guarantee, or be held as collateral for any Parent Guarantor Obligations or other amounts payable under the Parent Guarantee thereafter arising. The Parent Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Eighth Supplemental Indenture and the Parent Guarantee and that the waiver set forth in this Section 10.01 is knowingly made in contemplation of such benefits.
(g) No failure on the part of the Trustee or any Holder of the Notes to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further agrees that exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
(h) The Parent Guarantee is a continuing guarantee and shall (a) subject to paragraph 12.07(i), remain in full force and effect until payment in full of the principal amount of all outstanding Notes (whether by payment at maturity, purchase, redemption, defeasance, retirement or other acquisition) and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing, (b) be binding upon the Parent Guarantor, its successors and assigns, and (c) inure to the benefit of and be enforceable by the Trustee, any Holder of Notes, and by their respective successors, transferees, and assigns.
(i) The Parent Guarantor will automatically and unconditionally be released from all Parent Guarantee Obligations, and the Parent Guarantee shall thereupon terminate and be discharged and of no further force of effect, (i) upon any merger or consolidation of such Parent Guarantor with the Issuer, (ii) upon exercise by the Issuer of its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8 hereof or the discharge of the Issuer’s obligations under this Eighth Supplemental Indenture, in accordance with the terms of this Eighth Supplemental Indenture, or (iii) upon payment in full of the aggregate principal amount of all Notes then outstanding and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing. Upon any such occurrence specified in this paragraph 12.07(i), the Trustee shall execute upon request by the Issuer, any documents reasonably required in order to evidence such release, discharge and termination in respect of the Parent Guarantee. Neither the Issuer nor the Parent Guarantor shall be required to make a notation on the Notes to reflect the Parent Guarantee or any such release, termination or discharge.
(j) The Parent Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time paymentpayment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Parent Guarantee, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, of principal of is rescinded, reduced, restored or premium (if any) on returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwisereturned.
(gk) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby The Parent Guarantor may be accelerated as provided in Article 6 of the Indenture for the purposes of amend the Parent Guarantee, notwithstanding Guarantee at any stay, injunction or other prohibition preventing such acceleration in respect time for any purpose without the consent of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the IndentureNotes; provided, however, that if such amendment adversely affects (a) the rights of the Trustee or (b) any Holder of the Notes, the prior written consent of the Trustee (in the case of (b), acting at the written direction of the Holders of more than 50% in aggregate principal amount of Notes) shall be required.
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Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and ----------------- irrevocably guarantees to each Holder guarantees, as a primary obligor and to not merely as surety, the Trustee due, punctual and its successors complete payment and assigns performance by the Guaranteed Obligations in accordance with Article 10 Company when and as due, whether at the stated maturity, by acceleration, upon one or more dates set for prepayment or otherwise, of the IndentureObligations of the Company.
(b) Holdings further Parent agrees that whenever, at any time, or from time to time, it shall make any payment to the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of Administrative Agent for the Indenture notwithstanding any extension or renewal benefit of any Guaranteed ObligationSecured Party on account of its liability hereunder, it will notify the Administrative Agent in writing that such payment is made under this Section 9.16 for such purpose; provided that the failure of Parent to provide such -------- notice shall not preclude the application of such payment to the complete or partial satisfaction of Parent's obligations hereunder following Parent's notice to the Administrative Agent of such payment.
(c) Holdings waives presentation toNotwithstanding any payment or payments made by Parent hereunder or any setoff or application of funds of Parent by any Lender, demand of, payment from and protest Parent shall not be entitled to Holdings of be subrogated to any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice rights of any default under Lender against the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings Company or any other Person under this Indenture, the Notes collateral security or any other agreement guarantee or otherwise;
ii. any extension or renewal right of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security offset held by any Holder Lender for the payment of the Obligations, nor shall Parent seek or be entitled to seek any contribution or reimbursement from the Company in respect of payments made by Parent hereunder, until all amounts owing to the Lenders by Parent or the Trustee Company on account of the Obligations are paid in full and the Commitments are terminated. If any amount shall be paid to Parent on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full and the Commitments shall not have been terminated, such amount shall be held by Parent in trust for the obligations Lenders, segregated from other funds of any of them;
v. Parent, and shall forthwith upon receipt by Parent be turned over to the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change Administrative Agent in the ownership of Holdingsexact form received by Parent (duly endorsed by Parent to the Administrative Agent, if required), to be applied against the Obligations, whether matured or unmatured, at such time and in such order as the Administrative Agent may determine.
(d) Holdings further agrees that The provisions of this Section 9.16 shall continue to be effective, or be reinstated, as the Parent Guarantee constitutes a guarantee of case may be, if at any time payment, performance and compliance when due (and not a guarantee or any part thereof, of collection) and waives any right to require that any resort of the Obligations is rescinded or must otherwise be had restored or returned by any Holder Lender for any reason whatsoever, including, without limitation, upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Parent or the Trustee to any security held for payment Company or upon or as a result of the Guaranteed Obligationsappointment of a receiver, intervenor or conservator of, or trustee or similar officer for, Parent or the Company or any substantial part of the property of either, or otherwise, all as though such payments had not been made.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the The obligations of Holdings Parent under the Parent Guarantee this Section 9.16 shall not be subject to any reduction, limitation, impairment or termination for any reason, including including, without limitation, any claim of waiver, release, surrender, alteration or compromisecompromise of the Obligations, and shall not be subject to any defense of or setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings Parent under the Parent Guarantee this Section 9.16 shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or any Holder or the Trustee Lender to assert any claim or demand or to enforce any remedy under this Indenture, the Notes any guarantee or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful wilful or otherwise, in the performance of the obligationsObligations by the Borrower, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings Parent or would otherwise operate as a discharge of Holdings Parent as a matter of law or equityequity (other than the payment in full of all the Obligations).
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Parent Guarantee. (a) Holdings The Parent Guarantor hereby agrees to become a party to unconditionally guarantees the Indenture as a Guarantor and in accordance with the amendments to the terms punctual payment when due, whether at stated maturity, by acceleration or otherwise, of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all monetary obligations of the obligations and agreements of Parent Issuer under the Indenture, the Notes this Fourth Supplemental Indenture and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to Notes, whether for principal or interest on the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Notes, expenses, indemnification or otherwise (all such obligations of the IndentureParent Guarantor being herein referred to as the “Parent Guaranteed Obligations”).
(b) Holdings further agrees It is the intention of the Parent Guarantor that the Guaranteed Obligations may Parent Guarantee not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to the Parent Guarantee. To effectuate the foregoing intention, the amount guaranteed by the Parent Guarantor under the Parent Guarantee shall be extended or renewedlimited to the maximum amount as will, in whole or in part, without notice or further assent from Holdings after giving effect to such maximum amount and that Holdings will remain bound by Article 10 all other contingent and fixed liabilities of the Indenture notwithstanding any extension Parent Guarantor that are relevant under such laws, result in the obligations of the Parent Guarantor under the Parent Guarantee not constituting a fraudulent transfer or renewal of any Guaranteed Obligationconveyance.
(c) Holdings waives presentation toThe Parent Guarantor guarantees that the Parent Guaranteed Obligations will be paid strictly in accordance with the terms of this Fourth Supplemental Indenture, demand of, payment from and protest to Holdings regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holders of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligationswith respect thereto. The obligations liability of Holdings the Parent Guarantor under the Parent Guarantee shall not be affected byabsolute and unconditional irrespective of:
i. the failure (i) any lack of validity, enforceability or genuineness of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under provision of this Fourth Supplemental Indenture, the Notes or any other agreement or otherwiseinstrument relating thereto;
(ii. ) any extension change in the time, manner or renewal place of payment of, or in any thereof;
iii. any rescissionother term of, waiver, amendment all or modification of any of the terms or provisions of this IndentureParent Guaranteed Obligations, the Notes or any other agreementamendment or waiver of or any consent to departure from this Fourth Supplemental Indenture;
iv. the (iii) any exchange, release or non-perfection of any security held by collateral, or any Holder release or the Trustee amendment or waiver of or consent to departure from any other guarantee, for the obligations of all or any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Parent Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of (iv) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Indenture, any change in the ownership of HoldingsIssuer or a guarantor.
(d) Holdings further The Parent Guarantor covenants and agrees that its obligation to make payments of the Parent Guarantee Guaranteed Obligations hereunder constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment an unsecured obligation of the Guaranteed ObligationsParent Guarantor ranking pari passu with all existing and future senior unsecured indebtedness of the Parent Guarantor that is not subordinated in right of payment to the Parent Guarantee.
(e) Except as expressly set forth in Sections 8.02 The Parent Guarantor hereby waives promptness, diligence, notice of acceptance and 10.05 of the Indenture, the obligations of Holdings under any other notice with respect to the Parent Guarantee shall not be subject to and any reductionrequirement that the Trustee, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure Holders of any Holder Notes protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Issuer or any other agreement, by Person or any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equitycollateral.
(f) Holdings The Parent Guarantor hereby irrevocably waives any claims or other rights that it may now or hereafter acquire against the Issuer that arise from the existence, payment, performance or enforcement of the Parent Guarantor’s obligations under the Parent Guarantee or this Fourth Supplemental Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Trustee, or the Holders of any Notes against the Issuer or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Issuer, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to the Parent Guarantor in violation of the preceding sentence at any time prior to the cash payment in full of the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, such amount shall be held in trust for the benefit of the Trustee and the Holders of any Notes and shall forthwith be paid to the Trustee, to be credited and applied to the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, whether matured or unmatured, in accordance with the terms of this Fourth Supplemental Indenture and the Parent Guarantee, or be held as collateral for any Parent Guarantor Obligations or other amounts payable under the Parent Guarantee thereafter arising. The Parent Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Fourth Supplemental Indenture and the Parent Guarantee and that the waiver set forth in this Section 10.01 is knowingly made in contemplation of such benefits.
(g) No failure on the part of the Trustee or any Holder of the Notes to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further agrees that exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
(h) The Parent Guarantee is a continuing guarantee and shall (a) subject to paragraph 12.07(i), remain in full force and effect until payment in full of the principal amount of all outstanding Notes (whether by payment at maturity, purchase, redemption, defeasance, retirement or other acquisition) and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing, (b) be binding upon the Parent Guarantor, its successors and assigns, and (c) inure to the benefit of and be enforceable by the Trustee, any Holder of Notes, and by their respective successors, transferees, and assigns.
(i) The Parent Guarantor will automatically and unconditionally be released from all Parent Guarantee Obligations, and the Parent Guarantee shall thereupon terminate and be discharged and of no further force of effect, (i) upon any merger or consolidation of such Parent Guarantor with the Issuer, (ii) upon exercise by the Issuer of its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8 hereof or the discharge of the Issuer’s obligations under this Fourth Supplemental Indenture, in accordance with the terms of this Fourth Supplemental Indenture, or (iii) upon payment in full of the aggregate principal amount of all Notes then outstanding and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing. Upon any such occurrence specified in this paragraph 12.07(i), the Trustee shall execute upon request by the Issuer, any documents reasonably required in order to evidence such release, discharge and termination in respect of the Parent Guarantee. Neither the Issuer nor the Parent Guarantor shall be required to make a notation on the Notes to reflect the Parent Guarantee or any such release, termination or discharge.
(j) The Parent Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time paymentpayment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Parent Guarantee, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, of principal of is rescinded, reduced, restored or premium (if any) on returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwisereturned.
(gk) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby The Parent Guarantor may be accelerated as provided in Article 6 of the Indenture for the purposes of amend the Parent Guarantee, notwithstanding Guarantee at any stay, injunction or other prohibition preventing such acceleration in respect time for any purpose without the consent of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the IndentureNotes; provided, however, that if such amendment adversely affects (a) the rights of the Trustee or (b) any Holder of the Notes, the prior written consent of the Trustee (in the case of (b), acting at the written direction of the Holders of more than 50% in aggregate principal amount of Notes) shall be required.
Appears in 1 contract
Parent Guarantee. (a) Holdings For good and valuable consideration, the receipt and sufficiency of which is hereby agrees acknowledged, Parent hereby unconditionally guarantees (such guarantee being a "Parent Guarantee") to become each holder of a party Security authenticated and delivered by the Trustee and to the Trustee, irrespective of the validity and enforceability of this Indenture, the Securities or the obligations of the Company under this Indenture as or the Securities, that: (i) the principal of, premium, if any, and interest on the Securities will be paid when due, whether at the maturity or interest payment date, by acceleration, call for redemption, upon the occurrence of a Guarantor Designated Event, purchase or otherwise, and interest on the overdue principal and interest, if any, of the Securities, if lawful, and all other obligations of the Company to the Noteholders or the Trustee under this Indenture or the Securities will be promptly paid or performed, all in accordance with the amendments to terms of this Indenture and the Securities; and (ii) in case of any extension of time of payment or renewal of any Securities or any of such other obligations, they will be paid when due or performed in accordance with the terms of the Indenture made in Section 2 extension or renewal, whether at maturity, by acceleration, call for redemption, upon the occurrence of this Supplemental Indenturea Designated Event, purchase or otherwise. Failing payment when due of any amount so guaranteed for whatever reason, Parent shall be obligated to be substituted for STX as “Parent” under pay the Indenture, the Notes and the Parent Guarantee. Holdings shall have all same before failure to so pay becomes an Event of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the IndentureDefault.
(b) Holdings further Parent agrees that the Guaranteed Obligations may (i) its obligations with regard to this Parent Guarantee shall be extended or renewedunconditional, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 irrespective of the Indenture notwithstanding any extension validity, regularity or renewal enforceability of the Securities or this Indenture, the absence of any Guaranteed Obligationaction to enforce the same, any delays in obtaining or realizing upon (or failures to obtain or realize upon) collateral, the recovery of any judgment against the Company or any Guarantor, any action to enforce the same or any other circumstances that might otherwise constitute a legal or equitable discharge or defense of a guarantor and (ii) this Parent Guarantee will not be discharged except by complete performance of the obligations contained in the Securities and this Indenture. Parent hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company or any Guarantor, any right to require a proceeding first against the Company or any Guarantor or right to require the prior disposition of the assets of the Company or any Guarantor to meet its obligations, protest, notice and all demands whatsoever and covenants that this Parent Guarantee will not be discharged except by complete performance of the obligations contained in the Securities and this Indenture.
(c) Holdings waives presentation to, demand of, payment from and protest If any Noteholder or the Trustee is required by any court or otherwise to Holdings of return to any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of Company, any default under the Notes Guarantor, Parent, or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder Trustee, or the Trustee similar official acting to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms Company, any Guarantor or provisions Parent, any amount paid by any of the Company, any Guarantor or Parent to the Trustee or such Noteholder, this IndentureParent Guarantee, to the Notes or extent theretofore discharged, shall be reinstated in full force and effect. Parent agrees that it will not be entitled to any other agreement;
iv. right of subrogation in relation to the release Noteholders in respect of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdingsguaranteed hereby.
(d) Holdings further Parent agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations Guaranteed obligations guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, Section 7.02 notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect as to the Company or any Guarantor of the Guaranteed Obligations obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations those obligations as provided in Article 6 of the IndentureSection 7.02, such Guaranteed Obligations those obligations (whether or not due and payable) shall will forthwith become due and payable by Holdings Parent for the purposes purpose of Section 10.01 of the Indenturethis Parent Guarantee.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as DCP Midstream, LP shall be a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Sixteen of the Original Indenture.
(b) Holdings further agrees that . Upon a default in payment of principal of, or premium, if any, or interest on the Guaranteed Obligations may be extended or renewedNotes, in whole or in partthe Trustee, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 on behalf of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any Holders of the Guaranteed Obligations Notes, may institute legal proceedings directly against the Guarantor to enforce the Guarantee set forth in Article Sixteen of the Original Indenture (as amended and also waives notice supplemented by this Tenth Supplemental Indenture) without first proceeding against the Company. For the purposes of protest for nonpayment. Holdings waives notice of any default under this Tenth Supplemental Indenture and the Notes (including without limitation the provisions of the Original Indenture to the extent applicable thereto), the term “Guarantor” (and such derivative terms as are herein or therein used) shall mean DCP Midstream, LP, and accordingly, the Guaranteed Obligations. The obligations Guarantee of Holdings under DCP Midstream, LP shall be a Guarantee with respect to the Parent Indenture and the Notes; provided, however, that such Guarantee shall not be affected by:
i. apply to any obligations under any series of Securities other than the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
iiNotes. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as To evidence its Guarantee set forth in Section 10.05 Article Sixteen of the Original Indenture (as amended and supplemented by this Tenth Supplemental Indenture), any change the Guarantor hereby agrees that a notation of such Guarantee substantially in the ownership form attached as Annex B hereto will be endorsed by an Officer of Holdings.
(d) Holdings further the Guarantor on each Note authenticated and delivered by the Trustee and that this Tenth Supplemental Indenture will be executed on behalf of the Guarantor by one of its Officers. The Guarantor hereby agrees that the Parent its Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 Article Sixteen of the Original Indenture (as amended and supplemented by this Tenth Supplemental Indenture) will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Guarantee. If an Officer whose signature is on this Tenth Supplemental Indenture or on the Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Guarantee is endorsed, the obligations of Holdings under the Parent Guarantee shall not will be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwisevalid nevertheless. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure The delivery of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand Note by the Trustee, forthwith payafter the authentication thereof hereunder, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations will constitute due delivery of the Company to Guarantee set forth in the Holders and the Trustee.
(h) Holdings further agrees that, as between it, Indenture on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity behalf of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the IndentureGuarantor.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Parent Guarantee. (a) Holdings hereby agrees Subject to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental IndentureArticle 11, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings FEEC hereby unconditionally and irrevocably guarantees to each Holder of a Note authenticated and delivered by the Trustee or the Authenticating Agent and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 assigns, irrespective of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings validity and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions enforceability of this Indenture, the Notes or any the obligations of the Company hereunder or thereunder, that: (i) the principal of, premium, if any, and interest and Additional Amounts on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other agreement;
iv. obligations of the release of any security held by any Holder Company to the Holders or the Trustee for hereunder or thereunder will be promptly paid in full or performed, all in accordance with the obligations terms hereof and thereof; and (ii) in case of any extension of them;
v. the failure time of payment or renewal of any Holder Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the Trustee to exercise any right or remedy against any other guarantor terms of the Guaranteed Obligations; or
viextension or renewal, whether at Stated Maturity, by acceleration pursuant to Section 6.02 hereof or otherwise. except as set forth in Section 10.05 Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, FEEC shall be obligated to pay the Indenture, any change in the ownership of Holdings.
(d) Holdings further same immediately. FEEC also agrees that the Parent Guarantee constitutes this is a guarantee of payment, performance and compliance when due (payment and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(eb) Except as expressly set forth in Sections 8.02 and 10.05 FEEC hereby agrees that its obligations with regard to its Parent Guarantee shall be unconditional, irrespective of the validity or enforceability of the Notes or the obligations of the Company under this Indenture, the obligations absence of Holdings under any action to enforce the Parent Guarantee shall not be subject same, the recovery of any judgment against the Company or any other obligor with respect to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings the Company under this Indenture or the Notes, any action to enforce the same or any other circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of FEEC’s obligations hereunder. FEEC further, to the extent permitted by law, waives and relinquishes all claims, rights and remedies accorded by applicable law to guarantors and agrees not to assert or take advantage of any such claims, rights or remedies, including but not limited to: (i) any right to require any Benefited Party, as a condition of payment or performance by FEEC, to (A) proceed against the Company, any other guarantor (including any Subsidiary Guarantor) of the obligations under the Parent Guarantee shall or any other Person, (B) proceed against or exhaust any security held from the Company, any such other guarantor or any other Person, (C) proceed against or have resort to any balance of any deposit account or credit on the books of any Benefited Party in favor of the Company or any other Person, or (D) pursue any other remedy in the power of any Benefited Party whatsoever; (ii) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of the Company including any defense based on or arising out of the lack of validity or the unenforceability of the obligations under the Parent Guarantee or any agreement or instrument relating thereto or by reason of the cessation of the liability of the Company from any cause other than payment in full of the obligations under the Parent Guarantee; (iii) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (iv) any defense based upon any Benefited Party’s errors or omissions in the administration of the obligations under the Parent Guarantee, except behavior which amounts to bad faith; (v)(A) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Parent Guarantee and any legal or equitable discharge of FEEC’s obligations hereunder, (B) the benefit of any statute of limitations affecting FEEC’s liability hereunder or the enforcement hereof, (C) any rights to set-offs, recoupments and counterclaims and (D) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (vi) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Parent Guarantee, notices of default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification of the obligations under the Parent Guarantee or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (vii) to the extent permitted under applicable law, the benefits of any “One Action” rule and (viii) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the Parent Guarantee. Except to the extent expressly provided herein, including Section 8.02, 8.03 and 11.05, FEEC covenants that its Parent Guarantee will not be discharged or impaired or otherwise affected except by complete performance of the failure of obligations contained in its Parent Guarantee and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to assert any claim or demand or return to enforce any remedy under this Indenturethe Company, the Notes FEEC or any custodian, trustee, liquidator or other agreementsimilar official acting in relation to either the Company or FEEC, by any waiver amount paid either to the Trustee or modification of any thereofsuch Holder, by any defaultits Parent Guarantee, failure or delayto the extent theretofore discharged, willful or otherwise, shall be reinstated in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equityfull force and effect.
(fd) Holdings further FEEC agrees that the Parent Guarantee it shall continue not be entitled to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, right of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not subrogation in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, relation to the Holders or the Trustee an amount equal to the sum in respect of (1) the unpaid amount any obligations guaranteed hereby until payment in full of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings obligations guaranteed hereby. FEEC further agrees that, as between itFEEC, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations Guaranteed obligations guaranteed hereby may be accelerated as provided in Article 6 of the Indenture Section 6.02 hereof for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations obligations guaranteed hereby, hereby and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6 of the IndentureSection 6.02 hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by Holdings FEEC for the purposes purpose of Section 10.01 its Parent Guarantee. FEEC shall have the right to seek contribution from any non-paying Note Guarantor so long as the exercise of such right does not impair the rights of the IndentureHolders under the applicable Note Guarantee.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: Indenture (Far East Energy Corp)
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as DCP Midstream Partners, LP shall be a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the 2023 Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Sixteen of the Original Indenture.
. For the purposes of this Fifth Supplemental Indenture and the 2023 Notes (b) Holdings further agrees that including without limitation the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 provisions of the Original Indenture notwithstanding any extension to the extent applicable thereto), the term “Guarantor” (and such derivative terms as are herein or renewal therein used) shall mean DCP Midstream Partners, LP, and accordingly, the Guarantee of any Guaranteed Obligation.
(c) Holdings waives presentation toDCP Midstream Partners, demand ofLP shall be a Guarantee with respect to the Indenture and the 2023 Notes; provided, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent however, that such Guarantee shall not be affected by:
i. apply to any obligations under any series of Securities other than the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii2023 Notes. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as To evidence its Guarantee set forth in Section 10.05 Article Sixteen of the Original Indenture (as amended and supplemented by this Fifth Supplemental Indenture), any change the Guarantor hereby agrees that a notation of such Guarantee substantially in the ownership form attached as Annex B hereto will be endorsed by an Officer of Holdings.
(d) Holdings further the Guarantor on each 2023 Note authenticated and delivered by the Trustee and that this Fifth Supplemental Indenture will be executed on behalf of the Guarantor by one of its Officers. The Guarantor hereby agrees that the Parent its Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 Article Sixteen of the Original Indenture (as amended and supplemented by this Fifth Supplemental Indenture) will remain in full force and effect notwithstanding any failure to endorse on each 2023 Note a notation of such Guarantee. If an Officer whose signature is on this Fifth Supplemental Indenture or on the Guarantee no longer holds that office at the time the Trustee authenticates the 2023 Note on which a Guarantee is endorsed, the obligations of Holdings under the Parent Guarantee shall not will be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwisevalid nevertheless. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure The delivery of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand 2023 Note by the Trustee, forthwith payafter the authentication thereof hereunder, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations will constitute due delivery of the Company to Guarantee set forth in the Holders and the Trustee.
(h) Holdings further agrees that, as between it, Indenture on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity behalf of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the IndentureGuarantor.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: Fifth Supplemental Indenture (DCP Midstream Partners, LP)
Parent Guarantee. (a) Holdings The Parent Guarantor hereby agrees to become a party to unconditionally guarantees the Indenture as a Guarantor and in accordance with the amendments to the terms punctual payment when due, whether at stated maturity, by acceleration or otherwise, of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all monetary obligations of the obligations and agreements of Parent Issuer under the Indenture, the Notes this Eighteenth Supplemental Indenture and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to Notes, whether for principal or interest on the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Notes, expenses, indemnification or otherwise (all such obligations of the IndentureParent Guarantor being herein referred to as the “Parent Guaranteed Obligations”).
(b) Holdings further agrees It is the intention of the Parent Guarantor that the Guaranteed Obligations may Parent Guarantee not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to the Parent Guarantee. To effectuate the foregoing intention, the amount guaranteed by the Parent Guarantor under the Parent Guarantee shall be extended or renewedlimited to the maximum amount as will, in whole or in part, without notice or further assent from Holdings after giving effect to such maximum amount and that Holdings will remain bound by Article 10 all other contingent and fixed liabilities of the Indenture notwithstanding any extension Parent Guarantor that are relevant under such laws, result in the obligations of the Parent Guarantor under the Parent Guarantee not constituting a fraudulent transfer or renewal of any Guaranteed Obligationconveyance.
(c) Holdings waives presentation toThe Parent Guarantor guarantees that the Parent Guaranteed Obligations will be paid strictly in accordance with the terms of this Eighteenth Supplemental Indenture, demand of, payment from and protest to Holdings regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holders of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligationswith respect thereto. The obligations liability of Holdings the Parent Guarantor under the Parent Guarantee shall not be affected byabsolute and unconditional irrespective of:
i. the failure (i) any lack of validity, enforceability or genuineness of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under provision of this Eighteenth Supplemental Indenture, the Notes or any other agreement or otherwiseinstrument relating thereto;
(ii. ) any extension change in the time, manner or renewal place of payment of, or in any thereof;
iii. any rescissionother term of, waiver, amendment all or modification of any of the terms or provisions of this IndentureParent Guaranteed Obligations, the Notes or any other agreementamendment or waiver of or any consent to departure from this Eighteenth Supplemental Indenture;
iv. the (iii) any exchange, release or non-perfection of any security held by collateral, or any Holder release or the Trustee amendment or waiver of or consent to departure from any other guarantee, for the obligations of all or any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Parent Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of (iv) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Indenture, any change in the ownership of HoldingsIssuer or a guarantor.
(d) Holdings further The Parent Guarantor covenants and agrees that its obligation to make payments of the Parent Guarantee Guaranteed Obligations hereunder constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment an unsecured obligation of the Guaranteed ObligationsParent Guarantor ranking pari passu with all existing and future senior unsecured indebtedness of the Parent Guarantor that is not subordinated in right of payment to the Parent Guarantee.
(e) Except as expressly set forth in Sections 8.02 The Parent Guarantor hereby waives promptness, diligence, notice of acceptance and 10.05 of the Indenture, the obligations of Holdings under any other notice with respect to the Parent Guarantee shall not be subject to and any reductionrequirement that the Trustee, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure Holders of any Holder Notes protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Issuer or any other agreement, by Person or any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equitycollateral.
(f) Holdings The Parent Guarantor hereby irrevocably waives any claims or other rights that it may now or hereafter acquire against the Issuer that arise from the existence, payment, performance or enforcement of the Parent Guarantor’s obligations under the Parent Guarantee or this Eighteenth Supplemental Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Trustee, or the Holders of any Notes against the Issuer or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Issuer, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to the Parent Guarantor in violation of the preceding sentence at any time prior to the cash payment in full of the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, such amount shall be held in trust for the benefit of the Trustee and the Holders of any Notes and shall forthwith be paid to the Trustee, to be credited and applied to the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, whether matured or unmatured, in accordance with the terms of this Eighteenth Supplemental Indenture and the Parent Guarantee, or be held as collateral for any Parent Guarantor Obligations or other amounts payable under the Parent Guarantee thereafter arising. The Parent Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Eighteenth Supplemental Indenture and the Parent Guarantee and that the waiver set forth in this Section 10.01 is knowingly made in contemplation of such benefits.
(g) No failure on the part of the Trustee or any Holder of the Notes to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further agrees that exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
(h) The Parent Guarantee is a continuing guarantee and shall (a) subject to paragraph 12.07(i), remain in full force and effect until payment in full of the principal amount of all outstanding Notes (whether by payment at maturity, purchase, redemption, defeasance, retirement or other acquisition) and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing, (b) be binding upon the Parent Guarantor, its successors and assigns, and (c) inure to the benefit of and be enforceable by the Trustee, any Holder of Notes, and by their respective successors, transferees, and assigns.
(i) The Parent Guarantor will automatically and unconditionally be released from all Parent Guarantee Obligations, and the Parent Guarantee shall thereupon terminate and be discharged and of no further force of effect, (i) upon any merger or consolidation of such Parent Guarantor with the Issuer, (ii) upon exercise by the Issuer of its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8 hereof or the discharge of the Issuer’s obligations under this Eighteenth Supplemental Indenture, in accordance with the terms of this Eighteenth Supplemental Indenture, or (iii) upon payment in full of the aggregate principal amount of all Notes then outstanding and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing. Upon any such occurrence specified in this paragraph 12.07(i), the Trustee shall execute upon request by the Issuer, any documents reasonably required in order to evidence such release, discharge and termination in respect of the Parent Guarantee. Neither the Issuer nor the Parent Guarantor shall be required to make a notation on the Notes to reflect the Parent Guarantee or any such release, termination or discharge.
(j) The Parent Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time paymentpayment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Parent Guarantee, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, of principal of is rescinded, reduced, restored or premium (if any) on returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwisereturned.
(gk) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby The Parent Guarantor may be accelerated as provided in Article 6 of the Indenture for the purposes of amend the Parent Guarantee, notwithstanding Guarantee at any stay, injunction or other prohibition preventing such acceleration in respect time for any purpose without the consent of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the IndentureNotes; provided, however, that if such amendment adversely affects (a) the rights of the Trustee or (b) any Holder of the Notes, the prior written consent of the Trustee (in the case of (b), acting at the written direction of the Holders of more than 50% in aggregate principal amount of Notes) shall be required.
Appears in 1 contract
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns assigns:
(a) the Guaranteed Obligations in accordance with Article 10 full and punctual payment of principal of, premium (if any) on and interest on the Notes when the same becomes due and payable at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise, and all other monetary obligations of the Indenture.Parent under this Indenture and the Notes; and
(b) Holdings the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing under (a) and (b) of this Section 10.01 being hereinafter collectively called the “Guaranteed Obligations”). Parent further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings Parent and that Holdings Parent will remain bound by under this Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings . Parent waives presentation to, demand of, payment from and protest to Holdings the Parent of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings Parent waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee hereunder shall not be affected by:
i. (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings the Parent or any other Person under this Indenture, the Notes or any other agreement or otherwise;
(ii. ) any extension or renewal of any thereof;
(iii. ) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
(iv. ) the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. (v) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
(vi. ) except as set forth in Section 10.05 of the Indenture10.05, any change in the ownership of Holdings.
(d) Holdings Parent. Parent further agrees that the Parent Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) . Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture10.05, the obligations of Holdings under the Parent Guarantee hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this the Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings Parent or would otherwise operate as a discharge of Holdings Parent as a matter of law or equity.
(f) Holdings . Parent further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) . In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings Parent by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings Parent hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings . Parent further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent GuaranteeGuarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings Parent for the purposes of Section 10.01 of the Indenture.
(i) Holdings this Section. Parent also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenturethis Section.
Appears in 1 contract
Samples: Indenture (Seagate Technology)
Parent Guarantee. (a) Holdings The Parent hereby agrees to become a party absolutely, irrevocably and unconditionally guarantees to the Indenture as a Guarantor Company, the Equityholders and in accordance with the amendments Stockholder Representative the due and punctual payment, performance and discharge of all obligations of the Purchaser and Merger Sub under this Agreement and the Transaction Agreements (including payment of the Merger Consideration and any damages for breach arising under this Agreement and the Transaction Agreements, including all obligations paid to or owed to the terms Company, the Equityholders or the Stockholder Representative by the Purchaser or Merger Sub) (collectively, the “Obligations”). Without limiting the generality of the Indenture made in Section 2 foregoing, this guarantee is one of this Supplemental Indenturepayment, to not collection, and a separate action or actions may be substituted for STX as “Parent” under the Indenture, the Notes brought and prosecuted against the Parent Guarantee. Holdings shall have all to enforce this guarantee, irrespective of whether any action is brought against the Purchaser or the Merger Sub or whether the Purchaser or the Merger Sub is joined in any such actions, and irrespective of whether the Purchaser or any other Person was primarily responsible for causing the breach of the rights and be subject to all Obligations of the obligations and agreements of Parent under Purchaser. If the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees Purchaser fails to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 perform any of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewedrequiring payment, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 when such Obligation is due, the Parent shall promptly pay such Obligation in lawful money of the Indenture notwithstanding United States and in any extension event within five (5) Business Days of receipt of written demand for payment from the Company. The Company and the Equityholders may enforce Parent’s obligations under this Section 11.05 without first suing Purchaser or renewal Merger Sub or joining Purchaser or Merger Sub in any suit against Parent, or enforcing any rights and remedies against Purchaser or Merger Subsidiary, or otherwise pursuing or asserting any claims or rights against Purchaser or Merger Sub or any other person or entity or any of its or their property which may also be liable with respect to the matters for which Parent is liable under this Section 11.05 whether Purchaser or any Guaranteed Obligationother Person was primarily responsible for causing the breach of the Obligations of Purchaser.
(cb) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The Parent agrees that its obligations of Holdings under the Parent Guarantee hereunder shall not be released or discharged, in whole or in part, or otherwise affected by:
i. by (i) the existence of any claim, set-off or other right which the Parent may have at any time against the Purchaser, whether in connection with the Obligations or otherwise; (ii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Purchaser; (iii) the failure of any Holder or the Trustee Company to assert any claim or demand or to enforce any right or remedy against Holdings the Purchaser; (iv) any change in the corporate existence, structure or ownership of the Purchaser; (v) the adequacy of any other Person under this Indenture, means the Notes or any other agreement or otherwise;
ii. any extension or renewal Company may have of obtaining payment of any thereof;
iii. of the Obligations; or (vi) any change in the time, place or manner of payment of any of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of this IndentureAgreement. The Parent waives promptness, diligence, notice of the Notes or any other agreement;
iv. acceptance of this guarantee and of the release Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any security held by any Holder or the Trustee for the obligations Obligations incurred and all other notices of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenturekind, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that the marshalling of assets of Purchaser, all defenses which may be available by virtue of any resort be had by any Holder valuation, stay, moratorium law or the Trustee to any security held for payment of the Guaranteed Obligationsother similar law now or hereafter in effect and all suretyship defenses generally.
(ec) Except as expressly set forth in Sections 8.02 The Parent hereby unconditionally and 10.05 irrevocably agrees, unless and until all of the IndentureObligations shall have been irrevocably paid in full in cash, not to exercise any rights that it may now have or hereafter acquire against Purchaser that arise from the obligations of Holdings under the Parent Guarantee shall not be subject to any reductionexistence, limitationpayment, impairment performance or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason enforcement of the invalidity, illegality Parent’s obligations under or unenforceability in respect of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes guarantee or any other agreement, by including, without limitation, any waiver right of subrogation, reimbursement, exoneration, contribution or modification indemnification and any right to participate in any claim or remedy of any thereofthe Company or Equityholders against Purchaser, by any defaultwhether or not such claim, failure remedy or delayright arises in equity or under contract, willful statute or otherwisecommon law, including, without limitation, the right to take or receive from Purchaser, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim, remedy or right. The Company and the performance Equityholders shall not be obligated to file any claim relating to the Obligations in the event that Purchaser becomes subject to a reorganization, bankruptcy or similar proceeding, and the failure of the Company to so file shall not affect the Parent’s obligations, or by . In the event that any other act or thing or omission or delay payment to do any other act or thing which may or might the Company in any manner or to any extent vary the risk respect of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed an Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing returned, and not is returned, to Purchaser in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply connection with any other Guaranteed Obligationsuch proceeding, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in shall remain liable hereunder with respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed to its Obligations as provided in Article 6 of the Indenture, if such Guaranteed Obligations (whether or payment had not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenturebeen made.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Parent Guarantee. Parent hereby agrees as follows:
(a) Holdings hereby agrees Subject to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental IndentureArticle Sixteen, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder of a Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 assigns, irrespective of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings validity and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions enforceability of this Indenture, the Notes Securities or any the obligations of the Company hereunder or thereunder, that:
(i) the principal of, and interest and premium on, the Securities shall be promptly paid in full when due, whether at maturity, by acceleration, redemption, repurchase or otherwise, and interest on the overdue principal of and interest on the Securities, if any, if lawful, and all other agreement;
iv. obligations of the release of any security held by any Holder Company to the Holders or the Trustee for hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the obligations terms hereof and thereof; and
(ii) in case of any extension of them;
v. the failure time of payment or renewal of any Holder Security or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the Trustee to exercise any right or remedy against any other guarantor terms of the Guaranteed Obligations; or
viextension or renewal, whether at stated maturity, by acceleration or otherwise. except as set forth in Section 10.05 Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, Parent shall be obligated to pay the Indenture, any change in the ownership of Holdings.
(d) Holdings further same immediately. Parent agrees that the Parent Guarantee constitutes this is a guarantee of payment, performance and compliance when due (payment and not a guarantee of collection.
(b) and waives Parent hereby agrees that, to the fullest extent permitted by applicable law, its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Parent hereby waives, to the fullest extent permitted by applicable law, diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged except by complete performance of the obligations contained in the Securities and this Indenture or impaired or otherwise affected by the failure of as set forth in Section 16.03 hereof.
(c) If any Holder or the Trustee is required by any court or otherwise to assert return to the Company, Parent or any claim custodian, trustee, liquidator or demand other similar official acting in relation to either the Company or Parent, any amount paid either to enforce any remedy under this Indenturethe Trustee or such Holder while the Parent Guarantee is in effect, the Notes or any other agreementParent Guarantee, by any waiver or modification of any thereofto the extent theretofore discharged, by any default, failure or delay, willful or otherwise, shall be reinstated in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equityfull force and effect.
(fd) Holdings further Parent agrees that the Parent Guarantee it shall continue not be entitled to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, right of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not subrogation in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, relation to the Holders or the Trustee an amount equal to the sum in respect of (1) the unpaid amount any obligations guaranteed hereby until payment in full of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings obligations guaranteed hereby. Parent further agrees that, as between itthe Parent, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed obligations guaranteed hereby may be accelerated as provided in Article 6 of the Indenture Five hereof for the purposes of the Parent Guaranteethis Article Sixteen, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6 of the IndentureFive hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by Holdings Parent for the purposes of Section 10.01 of the IndentureParent Guarantee.
(ie) Holdings also agrees to pay In case any provision of this Article Sixteen shall be invalid, illegal or unenforceable, the validity, legality and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 enforceability of the Indentureremaining provisions shall not in any way be affected or impaired thereby.
(f) The obligations of the Parent under the Parent Guarantee shall be a general unsecured senior obligation of Parent and shall be pari passu in right of payment with any existing and future senior unsecured indebtedness of Parent, except for any indebtedness mandatorily preferred by law, and will be senior in right of payment to any existing or future subordinated indebtedness of Parent.
(g) Parent agrees that the Parent Guarantee shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of the Parent Guarantee on the Securities.
Appears in 1 contract
Samples: Supplemental Indenture (Beam Inc)
Parent Guarantee. (a) Holdings Guarantor hereby agrees to become a party to the Indenture as a Guarantor irrevocably and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee Seller, and its successors and assigns permitted under this Agreement, the Guaranteed Obligations in accordance with Article 10 performance of all of Purchaser’s obligations pursuant to this Agreement, including all payments becoming due to Seller hereunder (the Indenture“Obligations”).
(b) Holdings further agrees that If Purchaser shall default in the Guaranteed Obligations may be extended performance or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 payment of the Indenture notwithstanding any extension Obligations in accordance with the terms and conditions of this Agreement, Guarantor shall, upon demand by Seller, perform in lieu of Purchaser and make all payments in the amount then due in full to Seller. This guarantee is an absolute, unconditional and continuing guarantee by Guarantor of the Obligations, and no lawful action that Seller may take or renewal omit to take in connection with this Agreement shall affect, diminish or release the liability of any Guaranteed ObligationGuarantor under this Section 7.18.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of Guarantor hereby agrees that (i) Seller may take or not take any action for the collection or enforcement of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of Obligations, bring suit against any default under the Notes Person, or take any other action concerning this Agreement (including this Section 7.18) or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, or (ii) Seller may compromise or settle any change in the ownership of Holdingsunpaid or unperformed Obligation.
(d) Holdings further Guarantor agrees that the Parent Guarantee constitutes this is a guarantee of payment, performance and compliance when due (payment and not merely a guarantee of collection) . The liability of Guarantor under this Section 7.18 shall be primary, direct and waives immediate and not conditional or contingent upon the pursuit of any right remedy against Purchaser or any other entity. No action or inaction of Guarantor, Purchaser or any other Person, and no change of Law shall release or diminish Guarantor’s obligations, liabilities, or duties hereunder. If any payment to require that Seller by Guarantor or Purchaser is held to constitute a preference or a voidable transfer under applicable Law, or if for any resort be had by other reason Seller is required to remit such payment to payor or any Holder or the Trustee other Person, such payment to any security held for payment Seller shall not constitute a release of the Guaranteed ObligationsGuarantor from liability hereunder, and Guarantor agrees to pay such amount to Seller upon demand.
(e) Except Guarantor additionally represents and warrants to Seller as expressly follows:
(i) The guarantee set forth in Sections 8.02 this Section 7.18 constitutes a valid and 10.05 binding agreement of Guarantor and is enforceable against Guarantor in accordance with the terms of this Agreement, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors’ rights generally, and (ii) general equitable principles (whether considered in a proceeding in law or in equity).
(ii) As of the Indenturedate hereof, the obligations of Holdings under the Parent Guarantee shall not be subject to any reductionexecution, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromisedelivery, and shall performance of Guarantor’s obligations pursuant to this Section 7.18 does not be subject and will not (A) result in a default, breach or violation of the certificate or articles of incorporation or bylaws of Guarantor or any mortgage, deed of trust, indenture, note, bond, license, lease, covenant or other instrument, agreement or obligation to any defense of setoff, counterclaim, recoupment or termination whatsoever which Guarantor is a party or by reason which any of its properties or assets are bound or affected, (B) constitute an event which would permit any Person to terminate rights or accelerate the invalidity, illegality performance or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure maturity of any Holder indebtedness or the Trustee obligation of Guarantor, (C) constitute an event which would require any consent of a third party or under any agreement to assert which Guarantor is bound or (D) contravene any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equityLaw.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, The guarantee of principal of or premium (if any) on or interest on any Guaranteed Obligation Guarantor set forth in this Section 7.18 is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated a continuing guarantee as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, this Section 7.18 and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees be binding upon Guarantor and its successors; (ii) inure to pay any the benefit of and be enforceable by Seller and its successors and assigns permitted under this Agreement; and (ii) remain in full force and effect until, and shall expire only upon, the termination of this Agreement and the satisfaction of all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the IndentureObligations with respect to such termination.
Appears in 1 contract
Parent Guarantee. (a) Holdings The Parent Guarantor hereby agrees to become irrevocably and unconditionally guarantees on a party to the Indenture senior basis, as a Guarantor primary obligor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenturenot merely as a surety, to be substituted for STX as “Parent” under the Indentureeach Holder, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the IndentureTrustee, the Notes Collateral Agent and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its their successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings Obligations. The Parent Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings the Parent Guarantor, and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any no extension or renewal of any Guaranteed Obligation.
(c) Holdings Obligation shall release the obligations of the Parent Guarantor hereunder. The obligations of the Parent Guarantor hereunder shall be joint and several with the Subsidiary Guarantees of the Subsidiary Guarantors. The Parent Guarantor waives presentation to, demand of, of payment from and protest to Holdings the Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings The Parent Guarantor waives notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee Guarantor hereunder shall not be affected by:
i. by (i) the failure of any Holder Holder, the Trustee or the Trustee Collateral Agent to assert any claim or demand or to enforce any right or remedy against Holdings the Issuer or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise;
; (ii. ) any extension or renewal of this Indenture, the Securities or any thereof;
other agreement; (iii. ) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement;
; (iv. ) the release of any security held by any the Collateral Agent on behalf of each Holder or and the Trustee for the obligations of Guaranteed Obligations or any of them;
v. Subsidiary Guarantor; or (v) the failure of any Holder Holder, the Trustee or the Trustee Collateral Agent to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 The Parent Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among itself and the Subsidiary Guarantors, such that the Parent Guarantor’s obligations would be less than the full amount claimed. The Parent Guarantor hereby waives any right to which it may be entitled to have the assets of the Indenture, Issuer first be used and depleted as payment of the Issuer’s or the Parent Guarantor’s obligations hereunder prior to any change in amounts being claimed from or paid by the ownership of Holdings.
(d) Holdings Parent Guarantor hereunder. The Parent Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against the Parent Guarantor. The Parent Guarantor further agrees that the its Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Trustee Collateral Agent to any security held for payment of the Guaranteed Obligations.
(eb) The Parent Guarantee of the Parent Guarantor is, to the extent and in the manner set forth herein, equal in right of payment to all existing and future Parent Pari Passu Indebtedness and senior in right of payment to all existing and future Parent Subordinated Indebtedness and is made subject to such provisions of this Indenture.
(c) Except as expressly set forth in Sections 8.02 and 10.05 Section 8.01(b) of the this Indenture, the obligations of Holdings under the Parent Guarantee Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee Guarantor shall not be discharged or impaired or otherwise affected by the failure of any Holder Holder, the Trustee or the Trustee Collateral Agent to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings the Parent Guarantor or would otherwise operate as a discharge of Holdings the Parent Guarantor as a matter of law or equity.
(fd) Holdings The Parent Guarantor agrees that its Parent Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. The Parent Guarantor further agrees that the its Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder Holder, the Trustee or the Trustee Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(ge) In furtherance of the foregoing and not in limitation of any other right which any Holder Holder, the Trustee or the Trustee Collateral Agent has at law or in equity against Holdings the Parent Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, Holdings the Parent Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1i) the unpaid principal amount of such Guaranteed Obligations, (2ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (3iii) all other monetary Guaranteed Obligations obligations of the Company Issuer to the Holders and the Trustee.
(hf) Holdings The Parent Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. The Parent Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations Guaranteed guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent GuaranteeGuarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings the Parent Guarantor for the purposes of this Section 10.01 of the Indenture14.01.
(ig) Holdings The Parent Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Collateral Agent, the Trustee or any Holder in enforcing any rights under this Section 10.01 14.01.
(h) Upon request of the IndentureTrustee, the Parent Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Section 14.01.
(i) For the avoidance of doubt, the Parent Guarantor will not be subject to any of the restrictive covenants contained in this Indenture or any of the other obligations or agreements of a Subsidiary Guarantor hereunder.
Appears in 1 contract
Samples: Indenture (Berry Global Group Inc)
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns assigns:
(a) the Guaranteed Obligations in accordance with Article 10 full and punctual payment of principal of, premium (if any) on and interest on the Notes when the same becomes due and payable at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise, and all other monetary obligations of the Indenture.Parent under this Indenture and the Notes; and
(b) Holdings the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing under (a) and (b) of this Section 10.01 being hereinafter collectively called the “Guaranteed Obligations”). Parent further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings Parent and that Holdings Parent will remain bound by under this Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings . Parent waives presentation to, demand of, payment from and protest to Holdings the Parent of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings Parent waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee hereunder shall not be affected by:
i. (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings the Parent or any other Person under this Indenture, the Notes or any other agreement or otherwise;
(ii. ) any extension or renewal of any thereof;
(iii. ) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
(iv. ) the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. (v) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
(vi. ) except as set forth in Section 10.05 of the Indenture10.05, any change in the ownership of Holdings.
(d) Holdings Parent. Parent further agrees that the Parent Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) . Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture10.05, the obligations of Holdings under the Parent Guarantee hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this the Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings Parent or would otherwise operate as a discharge of Holdings Parent as a matter of law or equity.
(f) Holdings . Parent further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) . In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings Parent by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings Parent hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the 1)the unpaid amount of such Guaranteed Obligations, (2) accrued 2)accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all 3)all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings . Parent further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent GuaranteeGuarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings Parent for the purposes of Section 10.01 of the Indenture.
(i) Holdings this Section. Parent also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenturethis Section.
Appears in 1 contract
Samples: Indenture (Seagate Technology PLC)
Parent Guarantee. (a) Holdings The Parent Guarantor hereby agrees to become a party to unconditionally guarantees the Indenture as a Guarantor and in accordance with the amendments to the terms punctual payment when due, whether at stated maturity, by acceleration or otherwise, of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all monetary obligations of the obligations and agreements of Parent Issuer under the Indenture, the Notes this Twenty-Third Supplemental Indenture and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to Notes, whether for principal or interest on the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Notes, expenses, indemnification or otherwise (all such obligations of the IndentureParent Guarantor being herein referred to as the “Parent Guaranteed Obligations”).
(b) Holdings further agrees It is the intention of the Parent Guarantor that the Guaranteed Obligations may Parent Guarantee not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to the Parent Guarantee. To effectuate the foregoing intention, the amount guaranteed by the Parent Guarantor under the Parent Guarantee shall be extended or renewedlimited to the maximum amount as will, in whole or in part, without notice or further assent from Holdings after giving effect to such maximum amount and that Holdings will remain bound by Article 10 all other contingent and fixed liabilities of the Indenture notwithstanding any extension Parent Guarantor that are relevant under such laws, result in the obligations of the Parent Guarantor under the Parent Guarantee not constituting a fraudulent transfer or renewal of any Guaranteed Obligationconveyance.
(c) Holdings waives presentation toThe Parent Guarantor guarantees that the Parent Guaranteed Obligations will be paid strictly in accordance with the terms of this Twenty-Third Supplemental Indenture, demand of, payment from and protest to Holdings regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holders of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligationswith respect thereto. The obligations liability of Holdings the Parent Guarantor under the Parent Guarantee shall not be affected byabsolute and unconditional irrespective of:
i. the failure (i) any lack of validity, enforceability or genuineness of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under provision of this Twenty-Third Supplemental Indenture, the Notes or any other agreement or otherwiseinstrument relating thereto;
(ii. ) any extension change in the time, manner or renewal place of payment of, or in any thereof;
iii. any rescissionother term of, waiver, amendment all or modification of any of the terms or provisions of this IndentureParent Guaranteed Obligations, the Notes or any other agreementamendment or waiver of or any consent to departure from this Twenty-Third Supplemental Indenture;
iv. the (iii) any exchange, release or non-perfection of any security held by collateral, or any Holder release or the Trustee amendment or waiver of or consent to departure from any other guarantee, for the obligations of all or any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Parent Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of (iv) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Indenture, Issuer or any change in the ownership of HoldingsGuarantor.
(d) Holdings further The Parent Guarantor covenants and agrees that its obligation to make payments of the Parent Guarantee Guaranteed Obligations hereunder constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment an unsecured obligation of the Guaranteed ObligationsParent Guarantor ranking pari passu with all existing and future senior unsecured indebtedness of the Parent Guarantor that is not subordinated in right of payment to the Parent Guarantee.
(e) Except as expressly set forth in Sections 8.02 The Parent Guarantor hereby waives promptness, diligence, notice of acceptance and 10.05 of the Indenture, the obligations of Holdings under any other notice with respect to the Parent Guarantee shall not be subject to and any reductionrequirement that the Trustee, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure Holders of any Holder Notes protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Issuer or any other agreement, by Person or any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equitycollateral.
(f) Holdings The Parent Guarantor hereby irrevocably waives any claims or other rights that it may now or hereafter acquire against the Issuer that arise from the existence, payment, performance or enforcement of the Parent Guarantor’s obligations under the Parent Guarantee or this Twenty-Third Supplemental Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Trustee, or the Holders of any Notes against the Issuer or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Issuer, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to the Parent Guarantor in violation of the preceding sentence at any time prior to the cash payment in full of the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, such amount shall be held in trust for the benefit of the Trustee and the Holders of any Notes and shall forthwith be paid to the Trustee, to be credited and applied to the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, whether matured or unmatured, in accordance with the terms of this Twenty-Third Supplemental Indenture and the Parent Guarantee, or be held as collateral for any Parent Guarantor Obligations or other amounts payable under the Parent Guarantee thereafter arising. The Parent Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Twenty-Third Supplemental Indenture and the Parent Guarantee and that the waiver set forth in this Section 10.01 is knowingly made in contemplation of such benefits.
(g) No failure on the part of the Trustee or any Holder of the Notes to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further agrees that exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
(h) The Parent Guarantee is a continuing guarantee and shall (a) subject to paragraph 12.07(i), remain in full force and effect until payment in full of the principal amount of all outstanding Notes (whether by payment at maturity, purchase, redemption, defeasance, retirement or other acquisition) and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing, (b) be binding upon the Parent Guarantor, its successors and assigns, and (c) inure to the benefit of and be enforceable by the Trustee, any Holder of Notes, and by their respective successors, transferees, and assigns.
(i) The Parent Guarantor will automatically and unconditionally be released from all Parent Guarantee Obligations, and the Parent Guarantee shall thereupon terminate and be discharged and of no further force of effect, (i) upon any merger or consolidation of such Parent Guarantor with the Issuer, (ii) upon exercise by the Issuer of its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8 hereof or the discharge of the Issuer’s obligations under this Twenty-Third Supplemental Indenture, in accordance with the terms of this Twenty-Third Supplemental Indenture, or (iii) upon payment in full of the aggregate principal amount of all Notes then outstanding and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing. Upon any such occurrence specified in this paragraph 12.07(i), the Trustee shall execute upon request by the Issuer, any documents reasonably required in order to evidence such release, discharge and termination in respect of the Parent Guarantee. Neither the Issuer nor the Parent Guarantor shall be required to make a notation on the Notes to reflect the Parent Guarantee or any such release, termination or discharge.
(j) The Parent Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time paymentpayment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Parent Guarantee, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, of principal of is rescinded, reduced, restored or premium (if any) on returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwisereturned.
(gk) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby The Parent Guarantor may be accelerated as provided in Article 6 of the Indenture for the purposes of amend the Parent Guarantee, notwithstanding Guarantee at any stay, injunction or other prohibition preventing such acceleration in respect time for any purpose without the consent of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the IndentureNotes; provided, however, that if such amendment adversely affects (a) the rights of the Trustee or (b) any Holder of the Notes, the prior written consent of the Trustee (in the case of (b), acting at the written direction of the Holders of more than 50% in aggregate principal amount of Notes) shall be required.
Appears in 1 contract
Parent Guarantee. (a) Holdings hereby agrees In order to become a party induce the Lenders to extend credit to the Indenture Borrowers hereunder and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the Parent hereby absolutely and irrevocably and unconditionally guarantees, as a Guarantor primary obligor and in accordance with not merely as a surety, the amendments to the terms payment when and as due of the Indenture made in Section 2 Obligations of this Supplemental Indenture, to be substituted for STX as “Parent” under the IndentureForeign Subsidiary Borrowers and the Specified Ancillary Obligations (collectively, the Notes and the “Guaranteed Obligations”). The Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the due and punctual payment of such Guaranteed Obligations may be extended or renewed, in whole or in part, without notice to or further assent from Holdings it, and that Holdings it will remain bound by Article 10 of the Indenture upon its guarantee hereunder notwithstanding any such extension or renewal of any such Guaranteed Obligation.
(c) Holdings . The Parent waives presentation presentment to, demand of, of payment from and protest to Holdings any Subsidiary of any of the Guaranteed Obligations Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee hereunder shall not be affected by:
i. by (a) the failure of the Administrative Agent, any Holder Issuing Bank or the Trustee any Lender (or any of its Affiliates) to assert any claim or demand or to enforce any right or remedy against Holdings or any Subsidiary under the provisions of this Agreement, any other Person under this IndentureLoan Document, the Notes or any other agreement Hedge Agreement, any Banking Services Agreement or otherwise;
ii. ; (b) any extension or renewal of any thereof;
iii. of the Guaranteed Obligations; (c) any rescission, waiver, amendment or modification of of, or release from, any of the terms or provisions of this IndentureAgreement, the Notes any other Loan Document, any Hedge Agreement, any Banking Services Agreement or any other agreement;
iv. ; (d) any default, failure or delay, willful or otherwise, in the release of any security held by any Holder or the Trustee for the obligations performance of any of them;
v. the Guaranteed Obligations; (e) the failure of the Administrative Agent (or any Holder applicable Lender (or any of its Affiliates)) to take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Guaranteed Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or ownership of any Subsidiary or any other guarantor of any of the Guaranteed Obligations; (g) the enforceability or validity of the Guaranteed Obligations or any part thereof or the Trustee genuineness, enforceability or validity of any agreement relating thereto or with respect to exercise any right collateral securing the Guaranteed Obligations or remedy any part thereof, or any other invalidity or unenforceability relating to or against any Subsidiary or any other guarantor of any of the Guaranteed Obligations, for any reason related to this Agreement, any other Loan Document, any Hedge Agreement, any Banking Services Agreement, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Subsidiary or any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 , of any of the IndentureGuaranteed Obligations or otherwise affecting any term of any of the Guaranteed Obligations; or (h) any other act, omission or delay to do any change other act which may or might in any manner or to any extent vary the ownership risk of Holdings.
(d) Holdings the Parent or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of the Parent to subrogation. The Parent further agrees that the Parent Guarantee its agreement hereunder constitutes a guarantee of payment, performance and compliance payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Guaranteed Obligations or operated as a discharge thereof) and not a guarantee merely of collection) , and waives any right to require that any resort be had by the Administrative Agent, any Holder Issuing Bank or the Trustee any Lender (or any of its Affiliates) to any security held for payment balance of any deposit account or credit on the books of the Guaranteed Obligations.
(e) Except as expressly set forth Administrative Agent, any Issuing Bank or any Lender in Sections 8.02 and 10.05 favor of any Subsidiary or any other Person. The obligations of the Indenture, the obligations of Holdings under the Parent Guarantee hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoffor set-off, counterclaim, recoupment or termination whatsoever or whatsoever, by reason of the invalidity, illegality or unenforceability of any of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, impossibility in the performance of any of the obligations, Guaranteed Obligations or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings otherwise. The Parent further agrees that the Parent Guarantee its obligations hereunder shall constitute a continuing and irrevocable guarantee of all Guaranteed Obligations now or hereafter existing and shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation (including a payment effected through exercise of a right of setoff) is rescinded rescinded, or is or must otherwise be restored or returned by the Administrative Agent, any Holder Issuing Bank or the Trustee any Lender (or any of its Affiliates) upon the bankruptcy insolvency, bankruptcy, examinership or reorganization of the Company any Subsidiary or otherwise.
otherwise (g) including pursuant to any settlement entered into by a holder of Guaranteed Obligations in its discretion). In furtherance of the foregoing and not in limitation of any other right which the Administrative Agent, any Holder Issuing Bank or the Trustee has any Lender (or any of its Affiliates) may have at law or in equity against Holdings the Parent by virtue hereof, upon the failure of the Company any Subsidiary to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or to perform or comply with any other Guaranteed Obligationotherwise, Holdings the Parent hereby promises to and shallwill, upon receipt of written demand by the TrusteeAdministrative Agent, any Issuing Bank or any Lender (or any of its Affiliates), forthwith pay, or cause to be paid, in cash, to the Holders Administrative Agent, such Issuing Bank or the Trustee such Lender (or any of such Lender’s Affiliates) in cash an amount equal to the sum of (1) the unpaid principal amount of such the Guaranteed ObligationsObligations then due, (2) together with accrued and unpaid interest on thereon. The Parent further agrees that if payment in respect of any Guaranteed Obligation shall be due in a currency other than Dollars and/or at a place of payment other than New York, Chicago or any other Eurocurrency Payment Office and if, by reason of any Change in Law, disruption of currency or foreign exchange markets, war or civil disturbance or other event, payment of such Guaranteed Obligation in such currency or at such place of payment shall be impossible or, in the reasonable judgment of the Administrative Agent, any Issuing Bank or any Lender (or any of its Affiliates), disadvantageous to the Administrative Agent, any Issuing Bank or such Lender (or any of such Lender’s Affiliates) in any material respect, then, at the election of the Administrative Agent or such Lender, the Parent shall make payment of such Guaranteed Obligation in Dollars (based upon the applicable Equivalent Amount in effect on the date of payment) and/or in New York, Chicago or such other Eurocurrency Payment Office as is designated by the Administrative Agent or such Lender and, as a separate and independent obligation, shall indemnify the Administrative Agent, such Issuing Bank and such Lender (and such Lender’s Affiliates), as applicable, against any losses or reasonable out-of-pocket expenses that it shall sustain as a result of such alternative payment. Upon payment by the Parent of any sums as provided above, all rights of the Parent against any Subsidiary arising as a result thereof by way of right of subrogation or otherwise shall in all respects be subordinated and junior in right of payment to the prior indefeasible payment in full in cash of all the Guaranteed Obligations owed by such Subsidiary. The Parent hereby absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each Subsidiary Guarantor to honor all of its obligations under the Subsidiary Guaranty in respect of Specified Swap Obligations (but provided, however, that the Parent shall only be liable under this paragraph for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this paragraph or otherwise under this Article X voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The Parent intends that this paragraph constitute, and this paragraph shall be deemed to constitute, a “keepwell, support, or other agreement” for the extent not prohibited by lawbenefit of each Subsidiary Guarantor for all purposes of Section 1a(18)(A)(v)(II) and (3) all other monetary Guaranteed Obligations of the Company to Commodity Exchange Act. Nothing shall discharge or satisfy the Holders liability of the Parent hereunder except the full performance and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity payment in cash of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the IndentureObligations.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: Credit Agreement (PTC Inc.)
Parent Guarantee. (a) Holdings hereby agrees to become a party The Guarantor irrevocably and unconditionally guarantees to the Indenture as a Guarantor Sellers the due and in accordance with punctual performance by the amendments to Purchaser of all of its obligations under this Agreement, including without limitation the terms payment obligations of the Indenture made Sellers set forth in Section 2 of this Supplemental IndentureArticle II and its indemnification obligations set forth in Articles 7.2 and 9.3 (together the "Guaranteed Obligations", and such guarantee being referred to be substituted for STX as “Parent” under the Indenture, the Notes and the "Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture").
(b) Holdings further agrees The Guarantor hereby undertakes to the Sellers that if and whenever the Purchaser does not pay any amount (including principal, interest, fees and any other accessory claim of any nature whatsoever) when due under this Agreement, the Guarantor shall pay such amount within a period of two (2) Business Days of receipt of a notice claiming payment of that amount duly signed by the Sellers’ Agent.
(c) The Parent Guarantee is a joint and several guarantee ("caution solidaire") and is governed by the applicable Laws.
(d) It is to be a continuing guarantee and accordingly is to remain in force until all the Guaranteed Obligations shall have been performed or satisfied in accordance with this Agreement.
(e) The Guarantor hereby irrevocably and expressly undertakes not to exercise, and waives to the fullest extent lawful:
(i) any rights it may be extended have under article 2297 (bénéfice de discussion et benefice de division) of the French Civil Code (Code civil);
(ii) any right that it may have to first require the Sellers to proceed or renewedenforce any other rights or security (including by way of collateral security, guaranty or right of offset) that it may have against, or to claim payment from, any other Person before claiming from the Guarantor pursuant to the Parent Guarantee;
(iii) any rights that it may have to take any action against the Purchaser in the event of any extension of any date for payment or performance of any amount or obligation due, owing or payable under this Agreement or other time indulgence granted by the Sellers to the Purchaser, in each such case without the consent of the Guarantor; and
(iv) any rights that it may have at any time with respect to any indulgence, release of payment, whether in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 any other measures imposed on any of the Indenture notwithstanding any extension or renewal creditors generally of any Guaranteed Obligationthe Purchaser in Insolvency Proceedings.
(cf) Holdings waives presentation toNone of the Guarantor's obligations under the Parent Guarantee shall be released or discharged in the event of (x) a sale, demand ofchange of control, payment from merger, split-off, spin-off, contribution of assets or any similar or analogous transaction (any such transaction, a "Merger Event"), or (y) any dissolution, winding-up, liquidation, bankruptcy, insolvency or similar or analogous proceedings (whether judicial or amicable), in either case, involving the Purchaser (including in respect of any liabilities incurred after such event), and protest to Holdings the obligations of the Guarantor under the Parent Guarantee shall be binding on the Guarantor's successors and assigns, including as a consequence of any Merger Event involving the Guarantor and shall be for the benefit of the Sellers’ successors and assigns, including as a consequence of a Merger Event involving any of the Guaranteed Obligations Sellers.
(g) The Parent Guarantee is in addition to and also waives notice without prejudice to and not in substitution for any rights or security which the Sellers may have or hold for the performance and observance of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall does not be affected by:
i. exclude or limit in any way any other rights of the failure of any Holder Sellers and does not affect the nature or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any extent of the terms liabilities which have been or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if exist at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder between the Guarantor or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders Purchaser and the TrusteeSellers.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: Put Option Agreement (Heico Corp)
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees the full and prompt performance by Buyer of Buyer’s covenants, agreements and obligations under this Agreement and the other Transaction Documents (such obligation, the “Guaranteed Obligations”). This is a guarantee of performance and payment and not only of collection. Guarantor waives promptness, diligence, presentment, demand of performance, demand of payment, filing of any claim, any right to each Holder require any proceeding first against Buyer, protest, notice of any kind (including notices of acceptance hereof and to of defaults hereunder) and all demands whatsoever and all suretyship defenses generally in connection with the Trustee performance of its covenants, agreements and its successors obligations set forth in this Agreement. Without limiting the foregoing, Guarantor shall be responsible for the payment of all expenses and assigns the Guaranteed Obligations charges (including without limitation all court costs and reasonable attorneys’ fees) paid or incurred by any Seller Related Party in accordance with Article 10 realizing upon any of the Indentureobligations guaranteed pursuant to this Section 8.21(a).
(b) Holdings further agrees Guarantor represents and warrants to Buyer that (1) Guarantor is a corporation duly organized, validly existing and in good standing under the Guaranteed Obligations may be extended or renewedLaws of Delaware; (2) Guarantor has the requisite corporate authority to enter into this Agreement and to perform its obligations hereunder; (3) the execution, in whole or in part, without notice or further assent from Holdings delivery and that Holdings will remain bound performance of this Agreement by Article 10 Guarantor and the consummation of the Indenture notwithstanding transactions contemplated hereby have been duly and validly authorized by all requisite action on the part of Guarantor; (4) this Agreement has been duly and validly executed and delivered by Guarantor; and (5) the execution and delivery of this Agreement does not, and the consummation of the transactions contemplated herein and the compliance with the provisions herein will not, conflict with or violate any extension applicable Law or renewal of agreement binding upon Guarantor, nor require authorization, consent or approval of, or filing with, any Guaranteed ObligationGovernmental Authority, except in each case as would not impact Guarantor’s ability to perform or comply with its obligations hereunder in any material respect.
(c) Holdings waives presentation toTo the maximum extent permitted by Law, demand ofno modification, payment from and protest to Holdings limitation or discharge of liability of any other guarantor (if any) of the Guaranteed Obligations or of Buyer under this Agreement or any related agreement, instrument or document arising out of, or by virtue of, any bankruptcy, arrangement, reorganization or similar proceedings for release of debtors under federal or state law shall affect the liability of Guarantor hereunder in any manner whatsoever, and also Guarantor hereby waives notice of protest for nonpayment. Holdings waives notice all rights and benefits which might otherwise accrue to it by reason of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdingssuch proceeding.
(d) Holdings further agrees that For avoidance of doubt, the Parent Guarantee constitutes a guarantee provisions of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 through 8.13 and 10.05 of Section 8.19 are incorporated into this Section 8.21 and any references to “Party” in such Sections shall be deemed to include the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwiseGuarantor. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.* * * * *
Appears in 1 contract
Samples: Asset Purchase Agreement
Parent Guarantee. (a) Holdings The Parent Guarantor hereby agrees to become irrevocably and unconditionally guarantees on a party to the Indenture senior basis, as a Guarantor primary obligor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenturenot merely as a surety, to be substituted for STX as “Parent” under the Indentureeach Holder, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its their successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings Obligations. The Parent Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings the Parent Guarantor, and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any no extension or renewal of any Guaranteed ObligationObligation shall release the obligations of the Parent Guarantor hereunder. The obligations of the Parent Guarantor hereunder shall be joint and several with the Subsidiary Guarantees of the Subsidiary Guarantors.
(cb) Holdings The Parent Guarantor waives presentation to, demand of, of payment from and protest to Holdings the Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings The Parent Guarantor waives notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee Guarantor hereunder shall not be affected by:
i. by (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings the Issuer or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise;
; (ii. ) any extension or renewal of this Indenture, the Securities or any thereof;
other agreement; (iii. ) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement;
; (iv. the release of any security held by any Holder ) [Reserved]; or the Trustee for the obligations of any of them;
v. (v) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or.
vi(c) The Parent Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among itself and the Subsidiary Guarantors, such that the Parent Guarantor’s obligations would be less than the full amount claimed. except as set forth in Section 10.05 The Parent Guarantor hereby waives any right to which it may be entitled to have the assets of the Indenture, Issuer first be used and depleted as payment of the Issuer’s or the Parent Guarantor’s obligations hereunder prior to any change in amounts being claimed from or paid by the ownership of HoldingsParent Guarantor hereunder. The Parent Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against the Parent Guarantor.
(d) Holdings The Parent Guarantor further agrees that the its Parent Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) The Parent Guarantor’s Parent Guarantee herein is, to the extent and in the manner set forth herein, equal in right of payment to all existing and future Parent Pari Passu Indebtedness and senior in right of payment to all existing and future Parent Subordinated Indebtedness and is made subject to such provisions of this Indenture.
(f) Except as expressly set forth in Sections 8.02 and 10.05 Section 8.01(b) of the this Indenture, the obligations of Holdings under the Parent Guarantee Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings the Parent Guarantor or would otherwise operate as a discharge of Holdings the Parent Guarantor as a matter of law or equity.
(fg) Holdings The Parent Guarantor agrees that its Parent Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed Obligations, subject to the terms of this Indenture. The Parent Guarantor further agrees that the its Parent Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(gh) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings the Parent Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, Holdings the Parent Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1i) the unpaid principal amount of such Guaranteed Obligations, (2ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (3iii) all other monetary Guaranteed Obligations obligations of the Company Issuer to the Holders and the Trustee.
(hi) Holdings The Parent Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. The Parent Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations Guaranteed guaranteed hereby may be accelerated as provided in Article 6 of the this Indenture for the purposes of the Parent GuaranteeGuarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the this Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings the Parent Guarantor for the purposes of this Section 10.01 of the Indenture14.01.
(ij) Holdings The Parent Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01 14.01.
(k) Upon request of the Trustee, the Parent Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Section 14.01.
(l) For the avoidance of doubt, the Parent Guarantor shall not be a “Subsidiary Guarantor” for purposes of and as defined in this Indenture and shall not be subject to any of the obligations or agreements of a Subsidiary Guarantor hereunder.
(m) The Parent Guarantor will not be subject to any of the restrictive covenants contained in this Indenture.
Appears in 1 contract
Samples: Indenture (BPRex Delta Inc.)
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made As more fully set forth in Section 2 13.2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indentureunconditionally guarantees, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees on a senior unsecured basis, to each Holder of the Notes and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 assigns, irrespective of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings validity and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 enforceability of the Indenture, the Notes held thereby and the payment obligations of Holdings under the Parent Guarantee Company thereunder, that: (i) the principal of, premium, if any, interest, if any, and additional amounts required by the Notes, if any, shall not be promptly paid in full when due, subject to any reductionapplicable grace period, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of whether at the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreementmaturity date, by any waiver acceleration, upon repurchase or modification of any thereof, by any default, failure or delay, willful redemption or otherwise, in and interest on the performance overdue principal of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may beand premium, if at any time paymentany, or any part thereof, of principal of or premium and (if anyto the extent permitted by law) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization Notes, and all other payment obligations of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to hereunder or thereunder shall be promptly paid in full and performed, all in accordance with the sum terms hereof and thereof; and (ii) in case of (1) the unpaid amount any extension of time of payment or renewal of any Notes or any of such Guaranteed Obligationsother obligations, the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at the stated maturity, by acceleration, upon repurchase or redemption or otherwise. Failing payment when so due of any amount so guaranteed for whatever reason, the Parent will be obligated to pay the same immediately. Parent hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance (2other than complete performance) accrued and unpaid interest on such Guaranteed Obligations (but only which might otherwise constitute a legal or equitable discharge or defense of the Parent. Further, to the extent not prohibited permitted by law) and (3) all other monetary Guaranteed Obligations , Parent hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Parent Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Holders Company, Parent, or any custodian, Trustee or other similar official acting in relation to the Company or Parent any amount paid by the Company or Parent to the Trustee or such Holder, the Parent Guarantee, to the extent theretofore discharged, shall be reinstated in full force and the Trustee.
(h) Holdings effect. Parent further agrees that, as between itParent, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations Guaranteed obligations guaranteed hereby may be accelerated as provided in Article 6 Section 5.1 of the Base Indenture for the purposes of the this Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6 Section 5.1 of the Base Indenture, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by Holdings the Parent for the purposes purpose of Section 10.01 this Parent Guarantee. Parent shall be subrogated to all rights of the Indenture.
(i) Holdings also agrees to pay Holders of the Notes against the Company in respect of any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred amount paid by the Trustee Parent on account of such Notes pursuant to the provisions of this Parent Guarantee or the Indenture; provided, however, that the Parent shall not be entitled to enforce or to receive any Holder in enforcing payments arising out of, or based upon, such right of subrogation until the principal of, and any rights under Section 10.01 premium and interest on, all of the IndentureNotes have been paid in full.
Appears in 1 contract
Parent Guarantee. (a) Holdings hereby agrees In order to become a party induce the Lenders to extend credit to the Indenture Assuming Borrower hereunder and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the Parent hereby absolutely and irrevocably and unconditionally guarantees the payment when and as a Guarantor and in accordance with the amendments to the terms due of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Obligations. The Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 of the Indenture.
(b) Holdings further agrees that the Guaranteed due and punctual payment of the Obligations may be extended or renewed, in whole or in part, without notice to or further assent from Holdings it, and that Holdings it will remain bound by Article 10 of the Indenture upon its guarantee hereunder notwithstanding any such extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation . The Parent waives, to the fullest extent permitted by applicable law, presentment to, demand of, of payment from and protest to Holdings the Assuming Borrower or any Subsidiary of any of the Guaranteed Obligations Obligations, and also waives waives, to the fullest extent permitted by applicable law, notice of acceptance of its obligations and notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee hereunder shall not be affected by:
i. by (a) the failure of any Holder applicable Lender (or the Trustee any of its Affiliates) to assert any claim or demand or to enforce any right or remedy against Holdings the Assuming Borrower or any other Person Subsidiary under this Indenturethe provisions of any Banking Services Agreement, the Notes or any other agreement Swap Agreement or otherwise;
ii. ; (b) any extension or renewal of any thereof;
iii. of the Obligations; (c) any rescission, waiver, amendment or modification of of, or release from, any of the terms or provisions of this IndentureAgreement, the Notes or any other Loan Document, any Banking Services Agreement, any Swap Agreement or other agreement;
iv. ; (d) any default, failure or delay, willful or otherwise, in the release of any security held by any Holder or the Trustee for the obligations performance of any of them;
v. the Obligations; (e) the failure of any Holder applicable Lender (or any of its Affiliates) to take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or ownership of the Assuming Borrower, any Subsidiary or any other guarantor of any of the Obligations; (g) the enforceability or validity of the Obligations or any part thereof or the Trustee genuineness, enforceability or validity of any agreement relating thereto or with respect to exercise any right collateral securing the Obligations or remedy any part thereof, or any other invalidity or unenforceability relating to or against the Assuming Borrower, any Subsidiary or any other guarantor of any of the Obligations, for any reason related to this Agreement, any other Loan Document, any Banking Services Agreement, any Swap Agreement, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by the Assuming Borrower, such Subsidiary or any other guarantor of the Guaranteed Obligations, of any of the Obligations or otherwise affecting any term of any of the Obligations; or
vi. except as set forth or (h) any other act, omission or delay to do any other act which may or might in Section 10.05 any manner or to any extent vary the risk of the Indenture, Parent or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any change in right of the ownership of Holdings.
(d) Holdings Parent to subrogation. The Parent further agrees that the Parent Guarantee its agreement hereunder constitutes a guarantee of payment, performance and compliance payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Obligations or operated as a discharge thereof) and not a guarantee merely of collection) , and waives waives, to the fullest extent permitted by applicable law, any right to require that any resort be had by any Holder applicable Lender (or the Trustee any of its Affiliates) to any security held for payment balance of any deposit account or credit on the books of the Guaranteed Obligations.
(e) Except as expressly set forth Administrative Agent or any Lender in Sections 8.02 and 10.05 favor of the IndentureAssuming Borrower, the any Subsidiary or any other Person. The obligations of Holdings under the Parent Guarantee hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoffor set-off, counterclaim, recoupment or termination whatsoever or whatsoever, by reason of the invalidity, illegality or unenforceability of any of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, impossibility in the performance of any of the obligations, Obligations or by otherwise. The Parent confirms that it is not a surety under any other act or thing or omission or delay to do state law and shall not raise any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate such law as a discharge of Holdings as a matter of law or equity.
(f) Holdings defense to its obligations under this Article X. The Parent further agrees that the Parent Guarantee its obligations hereunder shall constitute a continuing and irrevocable guarantee of all Obligations now or hereafter existing and shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal any Obligation (including a payment effected through exercise of a right of setoff) is rescinded, or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored or returned by any Holder applicable Lender (or the Trustee any of its Affiliates) upon the insolvency, bankruptcy or reorganization of the Company Assuming Borrower or otherwise.
any Subsidiary or otherwise (g) including pursuant to any settlement entered into by a holder of Obligations in its discretion). In furtherance of the foregoing and not in limitation of any other right which any Holder applicable Lender (or the Trustee has any of its Affiliates) may have at law or in equity against Holdings the Parent by virtue hereof, upon the failure of the Company Assuming Borrower or any Subsidiary to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or to perform or comply with any other Guaranteed Obligationotherwise, Holdings the Parent hereby promises to and shallwill, upon receipt of written demand by the Trusteeany applicable Lender (or any of its Affiliates), forthwith pay, or cause to be paid, to such applicable Lender (or any of its Affiliates) in cash, to the Holders or the Trustee cash an amount equal to the sum of (1) the unpaid principal amount of such Guaranteed ObligationsObligations then due, (2) together with accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all thereon. The Parent further agrees that if payment in respect of any Obligation shall be due in a currency other monetary Guaranteed Obligations than Dollars and/or at a place of payment other than New York, Chicago or any other office, branch, affiliate or correspondent bank of the Company applicable Lender for such currency and if, by reason of any Change in Law, disruption of currency or foreign exchange markets, war or civil disturbance or other event, payment of such Obligation in such currency or at such place of payment shall be impossible or, in the reasonable judgment of any applicable Lender (or any of its Affiliates), disadvantageous to such applicable Lender (or any of its Affiliates) in any material respect, then, at the Holders and election of such applicable Lender, the Trustee.
Parent shall make payment of such Obligation in Dollars (hbased upon the applicable Dollar equivalent amount in effect on the date of payment as reasonably determined by such Lender or its Affiliate) Holdings further agrees thatand/or in New York, Chicago or such other city as is designated by such applicable Lender (or its Affiliate) and, as between ita separate and independent obligation, on shall indemnify such applicable Lender (and any of its Affiliates) against any losses or reasonable out-of-pocket expenses that it shall sustain as a result of such alternative payment. Upon payment by the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity Parent of the Guaranteed Obligations Guaranteed hereby may be accelerated any sums as provided in Article 6 of the Indenture for the purposes above, all rights of the Parent Guaranteeagainst the Assuming Borrower or any Subsidiary arising as a result thereof by way of right of subrogation or otherwise shall in all respects be subordinated and junior in right of payment to the prior indefeasible payment in full in cash of all the amounts owed by the Assuming Borrower or such Subsidiary to the applicable Lender (or its applicable Affiliates). In furtherance of the foregoing, notwithstanding the Parent will not assert any stayright, injunction claim or cause of action, including, without limitation, a claim of subrogation, contribution or indemnification, that it has against the Assuming Borrower or any Subsidiary or any collateral, until the indefeasible payment in full in cash of all the amounts owed by the Assuming Borrower or such Subsidiary to the applicable Lender (or its applicable Affiliates). The Parent hereby absolutely, unconditionally and irrevocably undertakes to provide such funds or other prohibition preventing such acceleration support as may be needed from time to time by each Subsidiary Guarantor to honor all of its obligations under the Subsidiary Guaranty in respect of Specified Swap Obligations (provided, however, that the Guaranteed Obligations guaranteed herebyParent shall only be liable under this paragraph for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this paragraph or otherwise under this Article X voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and (ynot for any greater amount). The Parent intends that this paragraph constitute, and this paragraph shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each Subsidiary Guarantor for all purposes of Section 1a(18)(A)(v)(II) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Commodity Exchange Act. Nothing shall discharge or satisfy the liability of the Parent hereunder except the full performance and payment in cash of the Obligations (whether or other than contingent indemnity obligations and obligations in respect of Swap Agreements and Banking Services Agreements, in each case not yet due and payable). At such time as the principal and interest on the Loans, the fees, expenses and other amounts payable under the Loan Documents and the other Obligations (other than obligations under any Swap Agreement or any Banking Services Agreement, in each case not yet due and payable, and other Obligations expressly stated to survive such payment and termination) shall forthwith become due have been paid in full in cash and payable the Commitments shall have been terminated, the foregoing guarantee by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any Parent and all costs and expenses obligations (including reasonable attorneys’ fees and expensesother than those expressly stated to survive such termination) incurred of Parent thereunder shall automatically terminate, all without delivery of any instrument or performance of any act by the Trustee or any Holder in enforcing any rights under Section 10.01 of the IndenturePerson.
Appears in 1 contract
Samples: Loan Agreement (NetApp, Inc.)
Parent Guarantee. (a) Holdings The Parent Guarantor hereby agrees to become a party to unconditionally guarantees the Indenture as a Guarantor and in accordance with the amendments to the terms punctual payment when due, whether at stated maturity, by acceleration or otherwise, of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all monetary obligations of the obligations and agreements of Parent Issuer under the Indenture, the Notes this Fifteenth Supplemental Indenture and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to Notes, whether for principal or interest on the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Notes, expenses, indemnification or otherwise (all such obligations of the IndentureParent Guarantor being herein referred to as the “Parent Guaranteed Obligations”).
(b) Holdings further agrees It is the intention of the Parent Guarantor that the Guaranteed Obligations may Parent Guarantee not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to the Parent Guarantee. To effectuate the foregoing intention, the amount guaranteed by the Parent Guarantor under the Parent Guarantee shall be extended or renewedlimited to the maximum amount as will, in whole or in part, without notice or further assent from Holdings after giving effect to such maximum amount and that Holdings will remain bound by Article 10 all other contingent and fixed liabilities of the Indenture notwithstanding any extension Parent Guarantor that are relevant under such laws, result in the obligations of the Parent Guarantor under the Parent Guarantee not constituting a fraudulent transfer or renewal of any Guaranteed Obligationconveyance.
(c) Holdings waives presentation toThe Parent Guarantor guarantees that the Parent Guaranteed Obligations will be paid strictly in accordance with the terms of this Fifteenth Supplemental Indenture, demand of, payment from and protest to Holdings regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holders of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligationswith respect thereto. The obligations liability of Holdings the Parent Guarantor under the Parent Guarantee shall not be affected byabsolute and unconditional irrespective of:
i. the failure (i) any lack of validity, enforceability or genuineness of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under provision of this Fifteenth Supplemental Indenture, the Notes or any other agreement or otherwiseinstrument relating thereto;
(ii. ) any extension change in the time, manner or renewal place of payment of, or in any thereof;
iii. any rescissionother term of, waiver, amendment all or modification of any of the terms or provisions of this IndentureParent Guaranteed Obligations, the Notes or any other agreementamendment or waiver of or any consent to departure from this Fifteenth Supplemental Indenture;
iv. the (iii) any exchange, release or non-perfection of any security held by collateral, or any Holder release or the Trustee amendment or waiver of or consent to departure from any other guarantee, for the obligations of all or any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Parent Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of (iv) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Indenture, any change in the ownership of HoldingsIssuer or a guarantor.
(d) Holdings further The Parent Guarantor covenants and agrees that its obligation to make payments of the Parent Guarantee Guaranteed Obligations hereunder constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment an unsecured obligation of the Guaranteed ObligationsParent Guarantor ranking pari passu with all existing and future senior unsecured indebtedness of the Parent Guarantor that is not subordinated in right of payment to the Parent Guarantee.
(e) Except as expressly set forth in Sections 8.02 The Parent Guarantor hereby waives promptness, diligence, notice of acceptance and 10.05 of the Indenture, the obligations of Holdings under any other notice with respect to the Parent Guarantee shall not be subject to and any reductionrequirement that the Trustee, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure Holders of any Holder Notes protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Issuer or any other agreement, by Person or any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equitycollateral.
(f) Holdings The Parent Guarantor hereby irrevocably waives any claims or other rights that it may now or hereafter acquire against the Issuer that arise from the existence, payment, performance or enforcement of the Parent Guarantor’s obligations under the Parent Guarantee or this Fifteenth Supplemental Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Trustee, or the Holders of any Notes against the Issuer or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Issuer, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to the Parent Guarantor in violation of the preceding sentence at any time prior to the cash payment in full of the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, such amount shall be held in trust for the benefit of the Trustee and the Holders of any Notes and shall forthwith be paid to the Trustee, to be credited and applied to the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, whether matured or unmatured, in accordance with the terms of this Fifteenth Supplemental Indenture and the Parent Guarantee, or be held as collateral for any Parent Guarantor Obligations or other amounts payable under the Parent Guarantee thereafter arising. The Parent Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Fifteenth Supplemental Indenture and the Parent Guarantee and that the waiver set forth in this Section 10.01 is knowingly made in contemplation of such benefits.
(g) No failure on the part of the Trustee or any Holder of the Notes to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further agrees that exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
(h) The Parent Guarantee is a continuing guarantee and shall (a) subject to paragraph 12.07(i), remain in full force and effect until payment in full of the principal amount of all outstanding Notes (whether by payment at maturity, purchase, redemption, defeasance, retirement or other acquisition) and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing, (b) be binding upon the Parent Guarantor, its successors and assigns, and (c) inure to the benefit of and be enforceable by the Trustee, any Holder of Notes, and by their respective successors, transferees, and assigns.
(i) The Parent Guarantor will automatically and unconditionally be released from all Parent Guarantee Obligations, and the Parent Guarantee shall thereupon terminate and be discharged and of no further force of effect, (i) upon any merger or consolidation of such Parent Guarantor with the Issuer, (ii) upon exercise by the Issuer of its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8 hereof or the discharge of the Issuer’s obligations under this Fifteenth Supplemental Indenture, in accordance with the terms of this Fifteenth Supplemental Indenture, or (iii) upon payment in full of the aggregate principal amount of all Notes then outstanding and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing. Upon any such occurrence specified in this paragraph 12.07(i), the Trustee shall execute upon request by the Issuer, any documents reasonably required in order to evidence such release, discharge and termination in respect of the Parent Guarantee. Neither the Issuer nor the Parent Guarantor shall be required to make a notation on the Notes to reflect the Parent Guarantee or any such release, termination or discharge.
(j) The Parent Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time paymentpayment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Parent Guarantee, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, of principal of is rescinded, reduced, restored or premium (if any) on returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwisereturned.
(gk) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby The Parent Guarantor may be accelerated as provided in Article 6 of the Indenture for the purposes of amend the Parent Guarantee, notwithstanding Guarantee at any stay, injunction or other prohibition preventing such acceleration in respect time for any purpose without the consent of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the IndentureNotes; provided, however, that if such amendment adversely affects (a) the rights of the Trustee or (b) any Holder of the Notes, the prior written consent of the Trustee (in the case of (b), acting at the written direction of the Holders of more than 50% in aggregate principal amount of Notes) shall be required.
Appears in 1 contract
Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as DCP Midstream Partners, LP shall be a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Sixteen of the Original Indenture.
. For the purposes of this Sixth Supplemental Indenture and the Notes (b) Holdings further agrees that including without limitation the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 provisions of the Original Indenture notwithstanding any extension to the extent applicable thereto), the term “Guarantor” (and such derivative terms as are herein or renewal therein used) shall mean DCP Midstream Partners, LP, and accordingly, the Guarantee of any Guaranteed Obligation.
(c) Holdings waives presentation toDCP Midstream Partners, demand ofLP shall be a Guarantee with respect to the Indenture and the Notes; provided, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent however, that such Guarantee shall not be affected by:
i. apply to any obligations under any series of Securities other than the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
iiNotes. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as To evidence its Guarantee set forth in Section 10.05 Article Sixteen of the Original Indenture (as amended and supplemented by this Sixth Supplemental Indenture), any change the Guarantor hereby agrees that a notation of such Guarantee substantially in the ownership form attached as Annex B-1 hereto, with respect to the 2019 Notes, and Annex B-2 hereto, with respect to the 2044 Notes, will be endorsed by an Officer of Holdings.
(d) Holdings further the Guarantor on each applicable Note authenticated and delivered by the Trustee and that this Sixth Supplemental Indenture will be executed on behalf of the Guarantor by one of its Officers. The Guarantor hereby agrees that the Parent its Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.02 and 10.05 Article Sixteen of the Original Indenture (as amended and supplemented by this Sixth Supplemental Indenture) will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Guarantee. If an Officer whose signature is on this Sixth Supplemental Indenture or on the Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Guarantee is endorsed, the obligations of Holdings under the Parent Guarantee shall not will be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwisevalid nevertheless. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure The delivery of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equity.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand Note by the Trustee, forthwith payafter the authentication thereof hereunder, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations will constitute due delivery of the Company to Guarantee set forth in the Holders and the Trustee.
(h) Holdings further agrees that, as between it, Indenture on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity behalf of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the IndentureGuarantor.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: Sixth Supplemental Indenture (DCP Midstream Partners, LP)
Parent Guarantee. (a) Holdings The Parent Guarantor hereby agrees to become a party to unconditionally guarantees the Indenture as a Guarantor and in accordance with the amendments to the terms punctual payment when due, whether at stated maturity, by acceleration or otherwise, of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all monetary obligations of the obligations and agreements of Parent Issuer under the Indenture, the Notes this Twenty-Fourth Supplemental Indenture and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to Notes, whether for principal or interest on the Trustee and its successors and assigns the Guaranteed Obligations in accordance with Article 10 Notes, expenses, indemnification or otherwise (all such obligations of the IndentureParent Guarantor being herein referred to as the “Parent Guaranteed Obligations”).
(b) Holdings further agrees It is the intention of the Parent Guarantor that the Guaranteed Obligations may Parent Guarantee not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to the Parent Guarantee. To effectuate the foregoing intention, the amount guaranteed by the Parent Guarantor under the Parent Guarantee shall be extended or renewedlimited to the maximum amount as will, in whole or in part, without notice or further assent from Holdings after giving effect to such maximum amount and that Holdings will remain bound by Article 10 all other contingent and fixed liabilities of the Indenture notwithstanding any extension Parent Guarantor that are relevant under such laws, result in the obligations of the Parent Guarantor under the Parent Guarantee not constituting a fraudulent transfer or renewal of any Guaranteed Obligationconveyance.
(c) Holdings waives presentation toThe Parent Guarantor guarantees that the Parent Guaranteed Obligations will be paid strictly in accordance with the terms of this Twenty-Fourth Supplemental Indenture, demand of, payment from and protest to Holdings regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holders of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligationswith respect thereto. The obligations liability of Holdings the Parent Guarantor under the Parent Guarantee shall not be affected byabsolute and unconditional irrespective of:
i. the failure (i) any lack of validity, enforceability or genuineness of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under provision of this Twenty-Fourth Supplemental Indenture, the Notes or any other agreement or otherwiseinstrument relating thereto;
(ii. ) any extension change in the time, manner or renewal place of payment of, or in any thereof;
iii. any rescissionother term of, waiver, amendment all or modification of any of the terms or provisions of this IndentureParent Guaranteed Obligations, the Notes or any other agreementamendment or waiver of or any consent to departure from this Twenty-Fourth Supplemental Indenture;
iv. the (iii) any exchange, release or non-perfection of any security held by collateral, or any Holder release or the Trustee amendment or waiver of or consent to departure from any other guarantee, for the obligations of all or any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Parent Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of (iv) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Indenture, Issuer or any change in the ownership of HoldingsGuarantor.
(d) Holdings further The Parent Guarantor covenants and agrees that its obligation to make payments of the Parent Guarantee Guaranteed Obligations hereunder constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment an unsecured obligation of the Guaranteed ObligationsParent Guarantor ranking pari passu with all existing and future senior unsecured indebtedness of the Parent Guarantor that is not subordinated in right of payment to the Parent Guarantee.
(e) Except as expressly set forth in Sections 8.02 The Parent Guarantor hereby waives promptness, diligence, notice of acceptance and 10.05 of the Indenture, the obligations of Holdings under any other notice with respect to the Parent Guarantee shall not be subject to and any reductionrequirement that the Trustee, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure Holders of any Holder Notes protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes Issuer or any other agreement, by Person or any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equitycollateral.
(f) Holdings The Parent Guarantor hereby irrevocably waives any claims or other rights that it may now or hereafter acquire against the Issuer that arise from the existence, payment, performance or enforcement of the Parent Guarantor’s obligations under the Parent Guarantee or this Twenty-Fourth Supplemental Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Trustee, or the Holders of any Notes against the Issuer or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Issuer, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to the Parent Guarantor in violation of the preceding sentence at any time prior to the cash payment in full of the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, such amount shall be held in trust for the benefit of the Trustee and the Holders of any Notes and shall forthwith be paid to the Trustee, to be credited and applied to the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, whether matured or unmatured, in accordance with the terms of this Twenty-Fourth Supplemental Indenture and the Parent Guarantee, or be held as collateral for any Parent Guarantor Obligations or other amounts payable under the Parent Guarantee thereafter arising. The Parent Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Twenty-Fourth Supplemental Indenture and the Parent Guarantee and that the waiver set forth in this Section 10.01 is knowingly made in contemplation of such benefits.
(g) No failure on the part of the Trustee or any Holder of the Notes to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further agrees that exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
(h) The Parent Guarantee is a continuing guarantee and shall (a) subject to paragraph 12.07(i), remain in full force and effect until payment in full of the principal amount of all outstanding Notes (whether by payment at maturity, purchase, redemption, defeasance, retirement or other acquisition) and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing, (b) be binding upon the Parent Guarantor, its successors and assigns, and (c) inure to the benefit of and be enforceable by the Trustee, any Holder of Notes, and by their respective successors, transferees, and assigns.
(i) The Parent Guarantor will automatically and unconditionally be released from all Parent Guarantee Obligations, and the Parent Guarantee shall thereupon terminate and be discharged and of no further force of effect, (i) upon any merger or consolidation of such Parent Guarantor with the Issuer, (ii) upon exercise by the Issuer of its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8 hereof or the discharge of the Issuer’s obligations under this Twenty-Fourth Supplemental Indenture, in accordance with the terms of this Twenty-Fourth Supplemental Indenture, or (iii) upon payment in full of the aggregate principal amount of all Notes then outstanding and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing. Upon any such occurrence specified in this paragraph 12.07(i), the Trustee shall execute upon request by the Issuer, any documents reasonably required in order to evidence such release, discharge and termination in respect of the Parent Guarantee. Neither the Issuer nor the Parent Guarantor shall be required to make a notation on the Notes to reflect the Parent Guarantee or any such release, termination or discharge.
(j) The Parent Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time paymentpayment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Parent Guarantee, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, of principal of is rescinded, reduced, restored or premium (if any) on returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwisereturned.
(gk) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby The Parent Guarantor may be accelerated as provided in Article 6 of the Indenture for the purposes of amend the Parent Guarantee, notwithstanding Guarantee at any stay, injunction or other prohibition preventing such acceleration in respect time for any purpose without the consent of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the IndentureNotes; provided, however, that if such amendment adversely affects (a) the rights of the Trustee or (b) any Holder of the Notes, the prior written consent of the Trustee (in the case of (b), acting at the written direction of the Holders of more than 50% in aggregate principal amount of Notes) shall be required.
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Parent Guarantee. (a) Holdings hereby agrees to become a party to the Indenture as a Guarantor and in accordance with the amendments to the terms of the Indenture made in Section 2 of this Supplemental Indenture, to be substituted for STX as “Parent” under the Indenture, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder of the Sellers, as primary obligor and not merely as surety, the performance of, and compliance with, all obligations, covenants, warranties and undertakings of Buyer contained in this Agreement (i) which are to be completed prior to or at the Closing, and (ii) with respect to Buyer’s obligations under Section 2.7(b) (the “Guaranty”). To the extent that Buyer fails to pay or perform any of its obligations under this Agreement when due, Parent shall promptly pay to the Trustee and its successors and assigns Sellers the Guaranteed Obligations in accordance amount due with Article 10 of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended respect to such Sellers or renewed, in whole or in part, otherwise perform such obligation without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
(c) Holdings waives presentation to, demand of, payment from and protest to Holdings of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or notice whatsoever. Parent hereby waives promptness, diligence, demand, protest and notice as to enforce any the obligations and covenants guaranteed hereby and acceptance of this Guaranty, the right or remedy to require the Sellers to exhaust remedies against Holdings or any other Person under this Indenture, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder other circumstance which might otherwise constitute a defense available to, or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except a discharge of, Parent as expressly set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the a guarantor. Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim hereby waives all claims of waiver, release, surrender, alteration abstraction or compromisecompromise and all set-offs, counterclaims, cross-claims, recoupments or other defenses that it may have against the Sellers. Parent agrees to pay the costs and expenses in connection with the enforcement of this Guaranty. This Guaranty shall constitute a guarantee of payment and not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the collection.
(b) The obligations of Holdings under the Parent Guarantee shall hereunder are unconditional and irrevocable and will not be discharged by: (i) any modification of, or impaired amendment or otherwise affected by the failure supplement to, this Agreement; (ii) any furnishing or acceptance of security or any exchange or release of any Holder security; (iii) any waiver, consent or the Trustee to assert any claim other action or demand or to enforce any remedy under this Indenture, the Notes inaction or any other agreement, by any waiver exercise or modification non-exercise of any thereofright, by remedy or power with respect to Buyer or any default, failure or delay, willful or otherwise, change in the performance structure of the obligationsBuyer; (iv) any insolvency, bankruptcy, reorganization, arrangement, composition, liquidation, dissolution, or by similar proceedings with respect to Buyer; or (v) any other act or thing or omission or delay to do any other act or thing which may or might occurrence whatsoever, except performance in any manner or to any extent vary full of all obligations of Buyer in accordance with the risk terms and conditions of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equitythis Agreement.
(fc) Holdings further agrees that the Parent Guarantee shall continue to This Guaranty shall: (i) be effective or be reinstatedbinding upon Parent, as the case may be, if at any time payment, or any part thereof, of principal of or premium its successors and assigns; (if anyii) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, inure to the Holders or benefit of, and be enforceable by, each Seller and its successors and assigns; and (iii) remain in full force and effect until the Trustee an amount equal to the sum performance in full of all obligations of Buyer and Parents set forth in clauses (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by lawi) and (3ii) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture12.16(a).
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Sba Communications Corp)
Parent Guarantee. (a) Holdings hereby agrees Parent will take all action necessary (a) to become a party cause Merger Subsidiary to perform its obligations under this Agreement and to commence the Offer and consummate the Merger on the terms and conditions set forth in this Agreement and, to the Indenture as a Guarantor and extent permitted under the DGCL, in accordance with Section 253 of the amendments DGCL as promptly as reasonably practicable following completion of the Offer and (b) to ensure that, prior to the Effective Time, Merger Subsidiary shall not conduct any business or make any investments other than as specifically contemplated by this Agreement. Parent shall not, and shall not permit Merger Subsidiary to, take any action that would result in the breach of any representation and warranty of Parent hereunder (except for representations and warranties made as of a specific date) such that the Company would have the right to terminate this Agreement pursuant to Section 8.1(c).
(b) Parent has received an equity commitment letter (the “Equity Commitment Letter”) in the form attached as Exhibit C hereto which expressly provides for the Company to be a third party beneficiary thereof. As of the date of this Agreement, the Equity Commitment Letter is in full force and effect and is the valid, binding and enforceable obligation of Parent and the other parties thereto. The Equity Commitment Letter has not been withdrawn or terminated (and no party thereto has indicated an intent to so withdraw or terminate) or otherwise amended or modified in any respect. Subject to the terms and conditions of the Equity Commitment Letter and subject to the terms and conditions of this Agreement, the aggregate proceeds contemplated by the Equity Commitment Letter will be sufficient to pay for all Shares pursuant to the Offer and the Merger and to repurchase all of the Notes in accordance with a “Change of Control” offer made pursuant to the terms of the Indenture made in Section 2 of this Supplemental Indenture, and to make all other payments to be substituted for STX as “Parent” paid by Parent or Merger Subsidiary contemplated under the Indenturethis Agreement, the Notes and the Parent Guarantee. Holdings shall have all of the rights and be subject to all of the obligations and agreements of Parent under the Indenture, the Notes and the Parent Guarantee. Holdings hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns the Guaranteed Obligations including expenses incurred in accordance connection with Article 10 of the Indenture.
(b) Holdings further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Holdings and that Holdings will remain bound by Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligationthis Agreement.
(c) Holdings Parent hereby waives presentation todiligence, presentment, demand ofof performance, payment from and protest to Holdings filing of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Holdings waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Holdings under the Parent Guarantee shall not be affected by:
i. the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Holdings or any other Person under this Indentureclaim, the Notes or any other agreement or otherwise;
ii. any extension or renewal of any thereof;
iii. any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
iv. the release of any security held by any Holder or the Trustee for the obligations of any of them;
v. the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
vi. except as set forth in Section 10.05 of the Indenture, any change in the ownership of Holdings.
(d) Holdings further agrees that the Parent Guarantee constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder proceeding first against Merger Subsidiary or Surviving Corporation, as applicable, protest, notice and all demands whatsoever in connection with the Trustee to any security held for payment performance of the Guaranteed Obligations.
(e) Except as expressly its obligations set forth in Sections 8.02 and 10.05 of the Indenture, the obligations of Holdings under the Parent Guarantee shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Holdings under the Parent Guarantee shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Holdings or would otherwise operate as a discharge of Holdings as a matter of law or equitySection 6.5.
(f) Holdings further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Holdings by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Holdings hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
(h) Holdings further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Holdings for the purposes of Section 10.01 of the Indenture.
(i) Holdings also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under Section 10.01 of the Indenture.
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