INDENTURE AND SECURITY DOCUMENTS The Issuer issued the Notes under an Indenture dated as of April 24, 2017 (the “Indenture”), between the Issuer, the Trustee and the Collateral Trustee. Capitalized terms used herein are used as defined in the Indenture, unless otherwise indicated. The terms of the Notes include those stated in the Indenture. The Notes are subject to all terms and provisions of the Indenture, and the holders (as defined in the Indenture) are referred to the Indenture for a statement of such terms and provisions. If and to the extent that any provision of the Notes limits, qualifies or conflicts with a provision of the Indenture, such provision of the Indenture shall control. The Notes are senior secured obligations of the Issuer. The Initial Notes, the PIK Notes and any Additional Notes are treated as a single class of securities under the Indenture except as otherwise set forth therein. The Indenture imposes certain limitations on the ability of the Issuer and its Subsidiaries to, among other things, make certain Investments and other Restricted Payments, pay dividends and other distributions, Incur Indebtedness, enter into consensual restrictions upon the payment of certain dividends and distributions by such Subsidiaries, issue or sell shares of capital stock of the Issuer and such Subsidiaries, enter into or permit certain transactions with Affiliates, create or Incur Liens and make Asset Sales. The Indenture also imposes limitations on the ability of the Issuer to consolidate or merge with or into any other Person or convey, transfer or lease all or substantially all of its property. The Notes are secured by Note Liens on the Collateral pursuant to the Security Documents. The rights of the holders in the Collateral are subject to the terms of the Collateral Trust Agreement.
Additional Guarantees This Agreement shall be in addition to any other guarantee or other security for the Guaranteed Obligations and it shall not be prejudiced or rendered unenforceable by the invalidity of any such other guarantee or security or by any waiver, amendment, release or modification thereof.
Indenture and Securities Solely Corporate Obligations No recourse for the payment of the principal of or premium, if any, or interest on any Security, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent, officer, or director or subsidiary, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Securities.
Indenture and Securities The Indenture shall have been duly executed and delivered by a duly authorized officer of the Company and the Trustee, and the Securities shall have been duly executed and delivered by a duly authorized officer of the Company and duly authenticated by the Trustee.
Guarantees, etc To endorse or guarantee the payment of any notes or other obligations of any person; to make contracts of guaranty or suretyship, or otherwise assume liability for payment thereof; and to mortgage and pledge the Trust property or any part thereof to secure any of or all such obligations;
Releases of Guarantees and Liens (a) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the Administrative Agent is hereby irrevocably authorized by each Lender (without requirement of notice to or consent of any Lender except as expressly required by Section 10.1) to take any action requested by the Borrower having the effect of releasing any Collateral or guarantee obligations (i) to the extent necessary to permit consummation of any transaction not prohibited by any Loan Document or that has been consented to in accordance with Section 10.1 or (ii) under the circumstances described in paragraph (b) below.
Unconditional Guarantees For value received, the Guarantors hereby fully, irrevocably, unconditionally and absolutely guarantee to the Owners and to the Trustee the due and punctual payment of the Company Obligations, when and as such Company Obligations shall become due and payable according to the terms of the Indenture and this Agreement. The guarantees by the Guarantors set forth in this Section 2 of Exhibit A are referred to herein as the “Guarantees.” Without limiting the generality of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part of the Company Obligations and would be owed by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company. Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such Guarantor. Each Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Company Obligations, the Guarantees or this Agreement, the absence of any action to enforce the same, any waiver or consent by any party 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 the Guarantor. The Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company. To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Company or such Guarantor set forth in the Indenture or this Agreement, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or such Guarantor, and all demands and notices whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its Guarantee will not be discharged except by complete performance of the Guarantees. Each Guarantor further agrees that to the fullest extent permitted by applicable law, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such Guarantor, such Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made. The Guarantors shall be subrogated to all rights of the Owners, the Issuer and the Trustee against the Company in respect of any amounts paid by the Guarantors pursuant to the provisions of the Indenture and this Agreement; provided, however, that the Guarantors shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Company Obligations until all of the Bonds and the Guarantees thereof shall have been indefeasibly paid in full or discharged. A director, officer, employee, stockholder, partner or member, as such, of the Guarantors shall not have any liability for any obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation. No failure to exercise and no delay in exercising, on the part of the Trustee, the Issuer or the Owners, any right, power, privilege or remedy under this Section 2 of Exhibit A and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A shall limit the right of the Trustee, the Issuer or the Owners to take any action to accelerate the maturity of the Bonds pursuant to Section 9.02 of the Indenture or to pursue any rights or remedies hereunder or under applicable law.
Guarantees of Notes 75 Section 10.01. Subsidiary Guarantees 75 Section 10.02. [Reserved] 76 Section 10.03. Guarantors May Consolidate, etc., on Certain Terms 76 Section 10.04. Releases of Subsidiary Guarantees 77 Section 10.05. Execution and Delivery of Guaranty 77 Section 10.06. Limitation on Guarantor Liability 77
Guarantee and Security Agreement The Guarantee and Security Agreement, duly executed and delivered by each of the parties to the Guarantee and Security Agreement.
RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURE FOR ADDITIONAL GUARANTEES PART OF INDENTURE Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture for Additional Guarantees shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall by bound hereby.
