Security Guarantee. Subject to the limitations set forth in the Indenture, the Guarantors (as defined in the Indenture referred to in this Security and each hereinafter referred to as a "Guarantor,"which term includes any successor or additional Guarantor under the Indenture) have jointly and severally, irrevocably and unconditionally guaranteed (a) the due and punctual payment of the principal (and premium, if any) of and interest on the Securities, whether at Stated Maturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase or otherwise, (b) the due and punctual payment of interest on the overdue principal of and interest on the Securities, if any, to the extent lawful, (c) the due and punctual performance of all other Obligations of the Company and the Guarantors to the Holders under the Indenture and the Securities and (d) in case of any extension of time of payment or renewal of any Securities 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, whether at Stated Maturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase or otherwise. Capitalized terms used herein shall have the same meanings assigned to them in the Indenture unless otherwise indicated. Payment on each Security is guaranteed jointly and severally, by the Guarantors pursuant to Article 11 of the Indenture and reference is made to such Indenture for the precise terms of the Guarantees. The Obligations of each Guarantor are limited to the lesser of (a) an amount equal to such Guarantor's Adjusted Net Assets as of the date of the Guarantee and (b) the maximum amount as well, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor, and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the Obligations of such other Guarantor under its Guarantee or pursuant to its contribution Obligations under the Indenture, result in the Obligations of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent conveyance or fraudulent transfer under federal or state law or not otherwise being void, voidable or unenforceable under any similar other bankruptcy, receivership, insolvency, liquidation or other similar legislation or legal principles under applicable foreign law. Each Guarantor that makes a payment or distribution under a Guarantee shall be entitled to a contribution from each other Company in a pro rata amount based on the Adjusted Net Assets of each Guarantor. Certain of the Guarantors may be released from their Guarantors upon the terms and subject to the conditions provided in the Indenture.
Appears in 2 contracts
Samples: Indenture (Trend Drilling Co), Indenture (Nabors Industries Inc)
Security Guarantee. Subject to the limitations set forth in the Indenture, the Guarantors (as defined in the Indenture referred to in this Security and each hereinafter referred to as a "Guarantor,"which Guarantor," which term includes any successor or additional Guarantor under the Indenture) have jointly and severally, irrevocably and unconditionally guaranteed (a) the due and punctual payment of the principal (and premium, if any) of and interest on the Securities, whether at Stated Maturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase or otherwise, (b) the due and punctual payment of interest on the overdue principal of and interest on the Securities, if any, to the extent lawful, (c) the due and punctual performance of all other Obligations of the Company and the Guarantors to the Holders under the Indenture and the Securities Notes and (d) in case of any extension of time of payment or renewal of any Securities 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, whether at Stated Maturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase or otherwise. Capitalized terms used herein shall have the same meanings assigned to them in the Indenture unless otherwise indicated. Payment on each Security is guaranteed jointly and severally, by the Guarantors pursuant to Article 11 of the Indenture and reference is made to such Indenture for the precise terms of the Guarantees. The Obligations obligations of each Guarantor are limited to the lesser of (a) an amount equal to such Guarantor's Adjusted Net Assets as of the date of the Guarantee and (b) the maximum amount as wellwill, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor, and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the Obligations of such other Guarantor under its Guarantee or pursuant to its contribution Obligations under the Indenture, result in the Obligations of such Guarantor under the its Guarantee not constituting a fraudulent conveyance or fraudulent conveyance or fraudulent transfer under federal or state law or not otherwise being void, voidable or unenforceable under any similar other bankruptcy, receivership, insolvency, liquidation or other similar legislation or legal principles under applicable foreign law. Each Guarantor that makes a payment or distribution under a Guarantee shall be entitled to a contribution from each other Company in a pro rata amount based on the Adjusted Net Assets of each Guarantor. Certain of the Guarantors may be released from their Guarantors Guarantees upon the terms and subject to the conditions provided in the Indenture.
Appears in 2 contracts
Samples: Indenture (Di Industries Inc), Indenture (Grey Wolf Inc)
Security Guarantee. Subject to the limitations set forth in the Indentureprovisions of this Article Eleven, the Guarantors Guarantor hereby fully, unconditionally and irrevocably guarantees to each Holder and to the Trustee on behalf of the Holders: (as defined in the Indenture referred to in this Security and each hereinafter referred to as a "Guarantor,"which term includes any successor or additional Guarantor under the Indenture) have jointly and severally, irrevocably and unconditionally guaranteed (ai) the due and punctual payment of the principal (and which shall be deemed to equal the then applicable Claimed Amount) of, premium, if any) of , on and interest on each Security, when and as the Securitiessame shall become due and payable, whether at Stated Maturitywhether, by acceleration, required repurchase (including by reason of Change of Control), call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase redemption or otherwise, (b) the due and punctual payment of interest on the overdue principal of and interest interest, if any, on the Securities, if any, to the extent lawfullawful (in each case including interest accruing on or after filing of any petition in bankruptcy or reorganization relating to the Company or the Guarantor, (c) whether or not a claim for post filing interest is allowed in such proceeding), and the due and punctual performance of all other Obligations obligations of the Company and the Guarantors to the Holders under or the Trustee, all in accordance with the terms of such Security and this Indenture and the Securities and (dii) in the case of any extension of time of payment or renewal of any Securities or any of such other Obligationsobligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration, required repurchase (including by reason of Change of Control), call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase redemption or otherwise. Capitalized terms used herein The Guarantor 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, and covenants that this Security Guarantee will not be discharged as to any such Security except by payment in full of the principal (which shall have be deemed to equal the then applicable Claimed Amount) thereof and interest thereon and as provided in Section 8.01 and Section 8.02 (subject to Section 8.06). The Guarantor hereby also irrevocably waives any right contemplated by Articles 480 (second paragraph), 481 and 482 of the Argentine Commercial Code as well as any rights and powers contemplated by Articles 1990, 1994, 2012, 2015, 2017, 2018, 2020, 2021 (except the right to oppose payment), 2022, 2023, 2024, 2025, 2026, 2028, 2029 (in the same meanings assigned to them extension as provided in the Indenture unless third paragraph of this
Section 11.01) 2043, 2044, 2045, 2046, 2047, 2049 (except in the case of express prior written waiver issued by the Trustee), and 2050 of the Argentine Civil Code, to the extent any such rights of defenses would otherwise indicatedbecome applicable or available to the Guarantor. Payment The obligations of the Guarantor hereunder shall not be affected by any failure or delay of the Trustee to exercise any right or remedy under this Indenture, the Securities or this Security Guarantee. The maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six for the purposes of this Article Eleven. In the event of any declaration of acceleration of such obligations as provided in Article Six, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Article Eleven. In addition, without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article Six, the Trustee shall promptly make a demand for payment on each the Securities under the Security Guarantee provided for in this Article Eleven. The Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant portion of the Company’s assets, and if the Trustee or the Holder of any Security is guaranteed jointly required by any court or otherwise to return to the Company or the Guarantor, or any custodian, receiver, liquidator, trustee, sequestrator or other similar official acting in relation to the Company or the Guarantor, any amount paid to the Trustee or such Holder in respect of a Security, this Security Guarantee, to the extent theretofore discharged, shall continue to be effective or be reinstated in full force and severallyeffect, by as the Guarantors pursuant case may be, all as if such payment has not been made. The Guarantor further agrees, to Article 11 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, the maturity of the Indenture and reference is made to such Indenture obligations guaranteed hereby may be accelerated as provided in Article Six hereof for the precise terms purposes of the Guarantees. The Obligations of each Guarantor are limited to the lesser of (a) an amount equal to this Security Guarantee, notwithstanding any stay, injunction or other prohibition extant under any applicable bankruptcy law preventing such Guarantor's Adjusted Net Assets as of the date of the Guarantee and (b) the maximum amount as well, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor, and after giving effect to any collections from or payments made by or on behalf of any other Guarantor acceleration in respect of the Obligations obligations Guaranteed hereby. The Guarantor hereby irrevocably waives any claim or other rights which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of its obligations under this Security Guarantee and this Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, any right to participate in any claim or remedy of the Holders against the Company or any collateral which any such Holder or the Trustee on behalf of such Holder hereafter acquires, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, directly or indirectly, in cash or other Guarantor under its Guarantee property or pursuant to its contribution Obligations under the Indentureby set-off or in any other manner, result in the Obligations payment or security on account of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent conveyance or fraudulent transfer under federal or state law or not otherwise being void, voidable or unenforceable under any similar other bankruptcy, receivership, insolvency, liquidation claim or other similar legislation or legal principles under applicable foreign lawrights until such time as the Securities and all of the Company’s other obligations being guaranteed hereby shall have been indefeasibly paid in full. Each Guarantor that makes a payment or distribution under a Guarantee If any amount shall be entitled paid to a contribution from each other Company the Guarantor in a pro rata amount based violation of the preceding sentence and the principal of, premium, if any, and accrued interest on the Adjusted Net Assets of each Guarantor. Certain Securities shall not have been paid in full, such amount shall be deemed to have been paid to the Guarantor for the benefit of, and held in trust for the benefit of, the Holders, and shall forthwith be paid to the Trustee for the benefit of the Guarantors may Holders to be released from their Guarantors credited and applied upon the terms principal (which shall be deemed to equal the then applicable Claimed Amount) of, premium, if any, and subject to the conditions provided in the Indenture.accrued interest on the
Appears in 2 contracts
Samples: Senior Guaranteed Convertible Notes Indenture (Impsat Fiber Networks Inc), Senior Guaranteed Convertible Notes Indenture (Impsat Fiber Networks Inc)
Security Guarantee. Subject to the limitations set forth in the Indenture, the Guarantors (as defined in the Indenture referred to in this Security and each hereinafter referred to as a "Guarantor,"which term includes any successor or additional Guarantor under the Indenture) have jointly and severally, irrevocably and unconditionally guaranteed (a) By DYPM in Favor of IP ---------------------- DYPM shall post a Security Guarantee with and in favor of IP in the due and punctual payment aggregate amount of $5,000,000 to ensure the principal (and premium, if any) of and interest on the Securities, whether at Stated Maturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase or otherwise, (b) the due and punctual payment of interest on the overdue principal of and interest on the Securities, if any, to the extent lawful, (c) the due and punctual timely performance of all other Obligations of the Company DYPM's obligations to deliver Capacity and the Guarantors Energy to the Holders under the Indenture and the Securities and (d) in case of any extension of time of payment or renewal of any Securities or any of such other Obligations, the same will be promptly paid in full when due or performed IP in accordance with the terms of this Agreement, including any obligation of DYPM arising under this Agreement to pay money to IP. Such Security Guarantee shall, at DYPM's option, consist of one of the extension or renewalfollowing: (i) an irrevocable letter of guaranty issued by DYPM's Guarantor, whether at Stated Maturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase or otherwise. Capitalized terms used herein shall have the same meanings assigned to them in the Indenture unless otherwise indicated. Payment on form of Appendix 4, (ii) a Letter of Credit, or (iii) cash or an irrevocable guaranty or bond issued by a bank, insurance company, other financial institution or other Guarantor of acceptable creditworthiness to IP, in each Security is guaranteed jointly and severallycase in favor of IP; provided, by that in the Guarantors pursuant event of a Downgrade Event with respect to Article 11 of the Indenture and reference is made to DYPM's Guarantor, if any (or until such Indenture for the precise terms of the Guarantees. The Obligations of each Guarantor are limited to the lesser of (a) an amount equal to such Guarantor's Adjusted Net Assets as of shall be Investment Grade), DYPM shall, within 15 days following the date of such Downgrade Event, post the full amount of the Security Guarantee in accordance with clauses (a)(ii) or (a)(iii) of this Section 15 and shall maintain the full amount of the Security Guarantee in accordance with clauses (a)(ii) or (a)(iii) of this Section 15 for the duration of such Downgrade Event.
(b) By IP in Favor of DYPM ---------------------- IP shall post a Security Guarantee with and in favor of DYPM in the maximum aggregate amount as wellof $25,000,000 to ensure the timely performance of IP's obligations to DYPM in accordance with the terms of this Agreement, after giving effect including any obligation of IP arising under this Agreement to such maximum amount and all pay money to DYPM. Such Security Guarantee shall, at IP's option, consist of one of the following: (i) an irrevocable letter of guaranty issued by IP's Guarantor, in the form of Appendix 4, (ii) a Letter of Credit, or (iii) cash or an irrevocable guaranty or bond issued by a bank, insurance company, other contingent and fixed liabilities financial institution or other Guarantor, of acceptable creditworthiness to DYPM, in each case in favor of DYPM; provided, that in the event of a Downgrade Event with respect to DYPM's Guarantor, if any, IP shall, within 15 days following the date of such GuarantorDowngrade Event, and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect post the full amount of the Obligations Security Guarantee solely in accordance with option (ii) or (iii) and shall maintain the full amount of the Security Guarantee solely in accordance with option (ii) or (iii) for the duration of such other Guarantor under its Guarantee or pursuant to its contribution Obligations under the Indenture, result in the Obligations of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent conveyance or fraudulent transfer under federal or state law or not otherwise being void, voidable or unenforceable under any similar other bankruptcy, receivership, insolvency, liquidation or other similar legislation or legal principles under applicable foreign law. Each Guarantor that makes a payment or distribution under a Guarantee shall be entitled to a contribution from each other Company in a pro rata amount based on the Adjusted Net Assets of each Guarantor. Certain of the Guarantors may be released from their Guarantors upon the terms and subject to the conditions provided in the IndentureDowngrade Event.
Appears in 1 contract
Security Guarantee. Subject to the limitations set forth in the Indentureprovisions of ------------------ this Article Ten, the Guarantors Guarantor hereby fully, unconditionally and irrevocably guarantees to each Holder and to the Trustee on behalf of the Holders:
(as defined in the Indenture referred to in this Security and each hereinafter referred to as a "Guarantor,"which term includes any successor or additional Guarantor under the Indenture) have jointly and severally, irrevocably and unconditionally guaranteed (ai) the due and punctual payment of the principal (and of, premium, if any) of , on and interest on each Security, when and as the Securitiessame shall become due and payable, whether at Stated Maturitymaturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase acceleration or otherwise, (b) the due and punctual payment of interest on the overdue principal of and interest interest, if any, on the Securities, if any, to the extent lawful, (c) and the due and punctual performance of all other Obligations obligations of the Company and the Guarantors to the Holders under or the Trustee, all in accordance with the terms of such Security and this Indenture and the Securities and (dii) in the case of any extension of time of payment or renewal of any Securities or any of such other Obligationsobligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase acceleration or otherwise. Capitalized terms used herein The Guarantor 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, and covenants that this Security Guarantee will not be discharged as to any such Security except by payment in full of the principal thereof and interest thereon and as provided in Section 8.01 and Section 8.02 (subject to Section 8.06). The maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six for the purposes of this Article Ten. In the event of any declaration of acceleration of such obligations as provided in Article Six, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Article Ten. In addition, without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article Six, the Trustee shall promptly make a demand for payment on the Securities under the Security Guarantee provided for in this Article Ten. If the Trustee or the Holder of any Security is required by any court or otherwise to return to the Company or the Guarantor, or any custodian, receiver, liquidator, trustee, sequestrator or other similar official acting in relation to the Company or the Guarantor, any amount paid to the Trustee or such Holder in respect of a Security, this Security Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. The Guarantor further 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, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six hereof for the purposes of this Security Guarantee, notwithstanding any stay, injunction or other prohibition extant under any applicable bankruptcy law preventing such acceleration in respect of the obligations Guaranteed hereby. The Guarantor hereby irrevocably waives any claim or other rights which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of its obligations under this Security Guarantee and this Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, any right to participate in any claim or remedy of the Holders against the Company or any collateral which any such Holder or the Trustee on behalf of such Holder hereafter acquires, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, 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 or other rights. If any amount shall be paid to the Guarantor in violation of the preceding sentence and the principal of, premium, if any, and accrued interest on the Securities shall not have been paid in full, such amount shall be deemed to have been paid to the Guarantor for the benefit of, and held in trust for the benefit of, the Holders, and shall forthwith be paid to the Trustee for the benefit of the Holders to be credited and applied upon the principal of, premium, if any, and accrued interest on the Securities. The Guarantor acknowledges that it will receive direct and indirect benefits from the issuance of the Securities pursuant to this Indenture and that the waivers set forth in this Section 10.01 are knowingly made in contemplation of such benefits. The Security Guarantee set forth in this Section 10.01 shall not be valid or become obligatory for any purpose with respect to a Security until the certificate of authentication on such Security shall have the same meanings assigned to them in the Indenture unless otherwise indicated. Payment on each Security is guaranteed jointly and severally, by the Guarantors pursuant to Article 11 of the Indenture and reference is made to such Indenture for the precise terms of the Guarantees. The Obligations of each Guarantor are limited to the lesser of (a) an amount equal to such Guarantor's Adjusted Net Assets as of the date of the Guarantee and (b) the maximum amount as well, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor, and after giving effect to any collections from or payments made been signed by or on behalf of any other Guarantor in respect of the Obligations of such other Guarantor under its Guarantee or pursuant to its contribution Obligations under the Indenture, result in the Obligations of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent conveyance or fraudulent transfer under federal or state law or not otherwise being void, voidable or unenforceable under any similar other bankruptcy, receivership, insolvency, liquidation or other similar legislation or legal principles under applicable foreign law. Each Guarantor that makes a payment or distribution under a Guarantee shall be entitled to a contribution from each other Company in a pro rata amount based on the Adjusted Net Assets of each Guarantor. Certain of the Guarantors may be released from their Guarantors upon the terms and subject to the conditions provided in the IndentureTrustee.
Appears in 1 contract
Samples: Indenture (Icg Communications Inc)
Security Guarantee. Subject to the limitations set forth in the Indenture, the Guarantors (as defined in the Indenture referred to in this Security and each hereinafter referred to as a "Guarantor,"which term includes any successor or additional Guarantor under the Indenture) have jointly and severally, irrevocably and unconditionally guaranteed (a) By DYPM in Favor of IP ---------------------- DYPM shall post a Security Guarantee with and in favor of IP in the due and punctual payment aggregate amount of $5,000,000 to ensure the principal (and premium, if any) of and interest on the Securities, whether at Stated Maturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase or otherwise, (b) the due and punctual payment of interest on the overdue principal of and interest on the Securities, if any, to the extent lawful, (c) the due and punctual timely performance of all other Obligations of the Company DYPM's obligations to deliver Capacity and the Guarantors Energy to the Holders under the Indenture and the Securities and (d) in case of any extension of time of payment or renewal of any Securities or any of such other Obligations, the same will be promptly paid in full when due or performed IP in accordance with the terms of this Agreement, including any obligation of DYPM arising under this Agreement to pay money to IP. Such Security Guarantee shall, at DYPM's option, consist of one of the extension or renewalfollowing: (i) an irrevocable letter of guaranty issued by DYPM's Guarantor, whether at Stated Maturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase or otherwise. Capitalized terms used herein shall have the same meanings assigned to them in the Indenture unless otherwise indicated. Payment on form of Appendix 4, (ii) a Letter of Credit, or (iii) cash or an irrevocable guaranty or bond issued by a bank, insurance company, other financial institution or other Guarantor of acceptable creditworthiness to IP, in each Security is guaranteed jointly and severallycase in favor of IP; provided, by that in the Guarantors pursuant event of a Downgrade Event with respect to Article 11 of the Indenture and reference is made to DYPM's Guarantor, if any (or until such Indenture for the precise terms of the Guarantees. The Obligations of each Guarantor are limited to the lesser of (a) an amount equal to such Guarantor's Adjusted Net Assets as of shall be Investment Grade), DYPM shall, within 15 days following the date of such Downgrade Event, post the full amount of the Security Guarantee in accordance with clauses (a)(ii) or (a)(iii) of this Section 15 and shall maintain the full amount of the Security Guarantee in accordance with clauses (a)(ii) or (a)(iii) of this Section 15 for the duration of such Downgrade Event.
(b) By IP in Favor of DYPM ---------------------- IP shall post a Security Guarantee with and in favor of DYPM in the maximum aggregate amount as wellof $25,000,000 to ensure the timely performance of IP's obligations to DYPM in accordance with the terms of this Agreement, after giving effect including any obligation of IP arising under this Agreement to such maximum amount and all pay money to DYPM. Such Security Guarantee shall, at IP's option, consist of one of the following: (i) an irrevocable letter of guaranty issued by IP's Guarantor, in the form of Appendix 4, (ii) a Letter of Credit, or (iii) cash or an irrevocable guaranty or bond issued by a bank, insurance company, other contingent and fixed liabilities financial institution or other Guarantor, of acceptable creditworthiness to DYPM, in each case in favor of DYPM; provided, that in the event of a Downgrade Event with respect to IP's Guarantor, if any, IP shall, within 15 days following the date of such GuarantorDowngrade Event, and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect post the full amount of the Obligations Security Guarantee solely in accordance with option (ii) or (iii) and shall maintain the full amount of the Security Guarantee solely in accordance with option (ii) or (iii) for the duration of such other Guarantor under its Guarantee or pursuant to its contribution Obligations under the Indenture, result in the Obligations of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent conveyance or fraudulent transfer under federal or state law or not otherwise being void, voidable or unenforceable under any similar other bankruptcy, receivership, insolvency, liquidation or other similar legislation or legal principles under applicable foreign law. Each Guarantor that makes a payment or distribution under a Guarantee shall be entitled to a contribution from each other Company in a pro rata amount based on the Adjusted Net Assets of each Guarantor. Certain of the Guarantors may be released from their Guarantors upon the terms and subject to the conditions provided in the IndentureDowngrade Event.
Appears in 1 contract
Security Guarantee. Subject Unless otherwise indicated for a particular series of Securities by an Officer’s Certificate, supplemental indenture or resolutions of the Issuers’ Boards, subject to this Article 10, from and after the limitations set forth Issue Date and upon the execution and delivery of (x) this Indenture or (y) in the case of any Person that becomes a Guarantor after the date hereof, any supplemental indenture to this Indenture, each of the Guarantors (as defined in the Indenture referred to in this Security and each hereinafter referred to as a "Guarantor,"which term includes any successor or additional Guarantor under the Indenture) have hereby, jointly and severally, irrevocably unconditionally guarantees to each Holder of a Security authenticated and unconditionally guaranteed delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities or the obligations of the Issuers hereunder or thereunder, that: (a) the due and punctual payment of the principal (and of, premium, if any) of , or interest and interest Additional Amounts, if any, on the SecuritiesSecurities shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase redemption or otherwise, (b) the due and punctual payment of interest on the overdue principal of and interest on the Securities, if any, to the extent if lawful, (c) the due and punctual performance of all other Obligations obligations of the Company and the Guarantors Issuers to the Holders under or the Indenture Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and the Securities thereof; and (db) in case of any extension of time of payment or renewal of any Securities or any of such other Obligationsobligations, the that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase acceleration or otherwise. Capitalized terms used herein Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the 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 any Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of an Issuer, any right to require a proceeding first against an Issuer, protest, notice and all demands whatsoever and covenants that this Security Guarantee shall not be discharged except by complete performance of the obligations contained in the Securities and this Indenture. Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or the Guarantors, any amount paid either to the Trustee or such Holder, this Security Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the Maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of this Security Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Security Guarantee. The Guarantors shall have the same meanings assigned right to them seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Security Guarantees. Each Security Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against an Issuer for liquidation or reorganization, should such Issuer become insolvent or make an assignment for the Indenture unless otherwise indicated. Payment on each Security is guaranteed jointly benefit of creditors or should a receiver or trustee be appointed for all or any significant part of such Issuer’s assets, and severallyshall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the Guarantors case may be, if at any time payment and performance of the Securities are, pursuant to Article 11 applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities or Security Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. In case any provision of any Security Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the Indenture and reference is made to such Indenture for the precise terms of the Guaranteesremaining provisions shall not in any way be affected or impaired thereby. The Obligations Security Guarantee issued by any Guarantor shall be a general senior obligation of each such Guarantor are limited to the lesser and shall be pari passu in right of (a) an amount equal to such Guarantor's Adjusted Net Assets as of the date of the Guarantee payment with all existing and (b) the maximum amount as well, after giving effect to such maximum amount and all other contingent and fixed liabilities future senior indebtedness of such Guarantor, and after giving effect . Each payment to any collections from or payments be made by or on behalf of any other a Guarantor in respect of the Obligations of such other Guarantor under its Guarantee or pursuant to its contribution Obligations under the Indenture, result in the Obligations of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent conveyance or fraudulent transfer under federal or state law or not otherwise being void, voidable or unenforceable under any similar other bankruptcy, receivership, insolvency, liquidation or other similar legislation or legal principles under applicable foreign law. Each Guarantor that makes a payment or distribution under a Security Guarantee shall be entitled to a contribution from each other Company in a pro rata amount based on the Adjusted Net Assets made without set-off, counterclaim, reduction or diminution of each Guarantor. Certain of the Guarantors may be released from their Guarantors upon the terms and subject to the conditions provided in the Indentureany kind or nature.
Appears in 1 contract
Security Guarantee. 13.1.1 Subject to the limitations set forth in the IndentureSection 13.2, each of the Guarantors (as defined in the Indenture referred to in this Security and each hereinafter referred to as a "Guarantor,"which term includes any successor or additional Guarantor under the Indenture) have hereby, jointly and severally, irrevocably unconditionally guarantees each Holder of a Security authenticated and unconditionally guaranteed delivered by the Trustee and to the Trustee and their respective successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities or the obligations of the Company hereunder or thereunder, that:
(a) the due and punctual payment of the principal (and premium, if any) of and interest on the SecuritiesSecurities will be promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase redemption or otherwise, (b) the due and punctual payment of interest on the overdue principal of and interest on the Securities, if any, to the extent if lawful, (c) the due and punctual performance of all other Obligations obligations of the Company and the Guarantors to the Holders under the Indenture and the Securities Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(db) in case of any extension of time of payment or renewal of any Securities or any of such other Obligationsobligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturitystated maturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase acceleration or otherwise. Capitalized terms used Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and performance.
13.1.2 The Guarantors hereby agree that their obligations hereunder are 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 or any indulgence, modification, amendment, accommodation or compromise 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 defence of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Security Guarantee will not be discharged except by complete performance of the obligations contained in the Securities and this Indenture. Each Guarantor waives any rights it may have that are inconsistent with the provisions hereof. No change in the constating documents, ownership, direct and indirect control of the Company or the Guarantors, or any other circumstance of any kind whatsoever affecting any of them that might otherwise afford a legal or equitable defence to the Guarantors or a discharge of the covenant herein shall have in any way limit or lessen the same meanings assigned liability of the Guarantors hereunder. No delay on the part of any Holder in exercising its rights shall constitute a waiver. This section is in addition to them and not in substitution for any rights of a Holder.
13.1.3 If any Holder or the Indenture unless Trustee is required by any court or otherwise indicated. Payment on each Security is guaranteed jointly and severallyto return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by the Guarantors pursuant Company or any Guarantor to Article 11 the Trustee or such Holder, this Security Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
13.1.4 Each Guarantor 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. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the Indenture and reference is made to such Indenture obligations guaranteed hereby may be accelerated as provided in Article 8 hereof for the precise terms purposes of the Guarantees. The Obligations of each Guarantor are limited to the lesser of (a) an amount equal to this Security Guarantee, notwithstanding any stay, injunction or other prohibition preventing such Guarantor's Adjusted Net Assets as of the date of the Guarantee and (b) the maximum amount as well, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor, and after giving effect to any collections from or payments made by or on behalf of any other Guarantor acceleration in respect of the Obligations obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such other obligations as provided in Article 8 hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors for the purpose of this Security Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor under its Guarantee or pursuant to its contribution Obligations so long as the exercise of such right does not impair the rights of the Holders under the Indenture, result in the Obligations of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent conveyance or fraudulent transfer under federal or state law or not otherwise being void, voidable or unenforceable under any similar other bankruptcy, receivership, insolvency, liquidation or other similar legislation or legal principles under applicable foreign law. Each Guarantor that makes a payment or distribution under a Guarantee shall be entitled to a contribution from each other Company in a pro rata amount based on the Adjusted Net Assets of each Guarantor. Certain of the Guarantors may be released from their Guarantors upon the terms and subject to the conditions provided in the IndentureGuarantee.
Appears in 1 contract
Security Guarantee. Subject to the limitations set forth in the Indentureprovisions of this Article Eleven, the Guarantors Guarantor hereby fully, unconditionally and irrevocably guarantees to each Holder and to the Trustee on behalf of the Holders: (as defined in the Indenture referred to in this Security and each hereinafter referred to as a "Guarantor,"which term includes any successor or additional Guarantor under the Indenture) have jointly and severally, irrevocably and unconditionally guaranteed (ai) the due and punctual payment of the principal (and which shall be deemed to equal the then applicable Claimed Amount) of, premium, if any) of , on and interest on each Security, when and as the Securitiessame shall become due and payable, whether at Stated Maturitywhether, by acceleration, required repurchase (including by reason of Change of Control), call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase redemption or otherwise, (b) the due and punctual payment of interest on the overdue principal of and interest interest, if any, on the Securities, if any, to the extent lawfullawful (in each case including interest accruing on or after filing of any petition in bankruptcy or reorganization relating to the Company or the Guarantor, (c) 77 whether or not a claim for post filing interest is allowed in such proceeding), and the due and punctual performance of all other Obligations obligations of the Company and the Guarantors to the Holders under or the Trustee, all in accordance with the terms of such Security and this Indenture and the Securities and (dii) in the case of any extension of time of payment or renewal of any Securities or any of such other Obligationsobligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration, required repurchase (including by reason of Change of Control), call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase redemption or otherwise. Capitalized terms used herein The Guarantor 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, and covenants that this Security Guarantee will not be discharged as to any such Security except by payment in full of the principal (which shall be deemed to equal the then applicable Claimed Amount) thereof and interest thereon and as provided in Section 8.01 and Section 8.02 (subject to Section 8.06). The Guarantor hereby also irrevocably waives any right contemplated by Articles 480 (second paragraph), 481 and 482 of the Argentine Commercial Code as well as any rights and powers contemplated by Articles 1990, 1994, 2012, 2015, 2017, 2018, 2020, 2021 (except the right to oppose payment), 2022, 2023, 2024, 2025, 2026, 2028, 2029 (in the same extension as provided in the third paragraph of this Section 11.01), 2043, 2044, 2045, 2046, 2047, 2049 (except in the case of express prior written waiver issued by the Trustee), and 2050 of the Argentine Civil Code, to the extent any such rights of defenses would otherwise become applicable or available to the Guarantor. The obligations of the Guarantor hereunder shall not be affected by any failure or delay of the Trustee to exercise any right or remedy under this Indenture, the Securities or this Security Guarantee. The maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six for the purposes of this Article Eleven. In the event of any declaration of acceleration of such obligations as provided in Article Six, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Article Eleven. In addition, without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article Six, the Trustee shall promptly make a demand for payment on the Securities under the Security Guarantee provided for in this Article Eleven. The Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant portion of the Company's assets, and if the Trustee or the Holder of any Security is required by any court or otherwise to return to the Company or the Guarantor, or any custodian, receiver, liquidator, trustee, sequestrator or other similar official acting in relation to the Company or the Guarantor, any amount paid to the Trustee or such Holder in respect of a Security, this Security Guarantee, to the extent theretofore discharged, shall continue to be effective or be reinstated in full force and effect, as the case may be, all as if such payment has not been made. The Guarantor further 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, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six hereof for the purposes of this Security Guarantee, notwithstanding any stay, injunction or other prohibition extant under any applicable bankruptcy law preventing such acceleration in respect of the obligations Guaranteed hereby. The Guarantor hereby irrevocably waives any claim or other rights which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of its obligations under this Security Guarantee and this Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, any right to participate in any claim or remedy of the Holders against the Company or any collateral which any such Holder or the Trustee on behalf of such Holder hereafter acquires, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, 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 or other rights until such time as the Securities and all of the Company's other obligations being guaranteed hereby shall have been indefeasibly paid in full. If any amount shall be paid to the same meanings assigned Guarantor in violation of the preceding sentence and the principal of, premium, if any, and accrued interest on the Securities shall not have been paid in full, such amount shall be deemed to them have been paid to the Guarantor for the benefit of, and held in trust for the Indenture unless otherwise indicatedbenefit of, the Holders, and shall forthwith be paid to the Trustee for the benefit of the Holders to be credited and applied upon the principal (which shall be deemed to equal the then applicable Claimed Amount) of, premium, if any, and accrued interest on the Securities. Payment on each Security is guaranteed jointly The Guarantor acknowledges that it will receive direct and severally, by indirect benefits from the Guarantors issuance of the Securities pursuant to Article 11 of the this Indenture and reference is that the waivers set forth in this Section 11.01 are knowingly made to in contemplation of such Indenture for the precise terms of the Guaranteesbenefits. The Obligations Security Guarantee set forth in this Section 11.01 shall not be valid or become obligatory for any purpose with respect to a Security until the certificate of each Guarantor are limited to the lesser of (a) an amount equal to authentication on such Guarantor's Adjusted Net Assets as of the date of the Guarantee and (b) the maximum amount as well, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor, and after giving effect to any collections from or payments made Security shall have been signed by or on behalf of any other Guarantor in respect of the Obligations of such other Guarantor under its Guarantee or pursuant to its contribution Obligations under the Indenture, result in the Obligations of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent conveyance or fraudulent transfer under federal or state law or not otherwise being void, voidable or unenforceable under any similar other bankruptcy, receivership, insolvency, liquidation or other similar legislation or legal principles under applicable foreign law. Each Guarantor that makes a payment or distribution under a Guarantee shall be entitled to a contribution from each other Company in a pro rata amount based on the Adjusted Net Assets of each Guarantor. Certain of the Guarantors may be released from their Guarantors upon the terms and subject to the conditions provided in the IndentureTrustee.
Appears in 1 contract
Samples: Senior Guaranteed Convertible Notes Indenture (Impsat Fiber Networks Inc)
Security Guarantee. Subject to the limitations set forth in the Indenture, (a) Each of the Guarantors (as defined in the Indenture referred to in this Security and each hereinafter referred to as a "Guarantor,"which term includes any successor or additional Guarantor under the Indenture) have hereby, jointly and severally, irrevocably fully and unconditionally guaranteed guarantees to each Holder of a Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities or the obligations of the Company hereunder or thereunder, that:
(a1) the due and punctual payment principal of the principal (and premium, if any) of , and interest interest, if any, on the SecuritiesSecurities will be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase redemption or otherwise, (b) the due and punctual payment of interest on the overdue principal of and interest premium, if any, and interest, if any, on the Securities, if any, to the extent lawful, (c) the due and punctual performance of all other Obligations obligations of the Company and the Guarantors to the Holders under or the Indenture Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and the Securities and thereof; and
(d2) in case of any extension of time of payment or renewal of any Securities or any of such other Obligationsobligations, the 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, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase acceleration or otherwise. Capitalized terms used herein shall have Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same meanings assigned to them in the Indenture unless otherwise indicatedimmediately. Payment on each Security Each Guarantor agrees that this is guaranteed jointly a guarantee of payment and severally, by the Guarantors pursuant to Article 11 not a guarantee of the Indenture and reference is made to such Indenture for the precise terms of the Guarantees. The Obligations of each Guarantor are limited to the lesser of (a) an amount equal to such Guarantor's Adjusted Net Assets as of the date of the Guarantee and collection.
(b) The Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the maximum amount as wellvalidity, after giving effect regularity or enforceability of the Securities or this Indenture, the absence of any action to such maximum amount 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. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Security Guarantee will not be discharged except by complete performance of the obligations contained in the Securities and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other contingent similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Security Guarantee, to the extent theretofore discharged, will be reinstated in full force and fixed liabilities effect.
(d) Each Guarantor agrees that it will not be entitled to any right of such Guarantorsubrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and after giving effect to the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Security Guarantee, notwithstanding any collections from stay, injunction or payments made by or on behalf of any other Guarantor prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such other obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors for the purpose of this Security Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor under its Guarantee or pursuant to its contribution Obligations so long as the exercise of such right does not impair the rights of the Holders under the Indenture, result in the Obligations of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent conveyance or fraudulent transfer under federal or state law or not otherwise being void, voidable or unenforceable under any similar other bankruptcy, receivership, insolvency, liquidation or other similar legislation or legal principles under applicable foreign law. Each Guarantor that makes a payment or distribution under a Guarantee shall be entitled to a contribution from each other Company in a pro rata amount based on the Adjusted Net Assets of each Guarantor. Certain of the Guarantors may be released from their Guarantors upon the terms and subject to the conditions provided in the IndentureSecurity Guarantee.
Appears in 1 contract
Samples: Indenture (Warner Chilcott LTD)
Security Guarantee. (a) Subject to the limitations set forth in the Indenturethis Article 16, each of the Guarantors (as defined in the Indenture referred to in this Security and each hereinafter referred to as a "Guarantor,"which term includes any successor or additional Guarantor under the Indenture) have hereby, jointly and severally, irrevocably and unconditionally guaranteed guarantees, on a senior basis, to each Holder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities or the obligations of the Company hereunder or thereunder, that: (a1) the due and punctual payment principal of the principal (and premium, if any) of , and interest on the SecuritiesSecurities shall be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase redemption or otherwise, (b) the due and punctual payment of interest on the overdue principal of and interest on the Securities, if any, to the extent if lawful, (c) the due and punctual performance of all other Obligations obligations of the Company and the Guarantors to the Holders under or the Indenture Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and the Securities thereof; and (d2) in case of any extension of time of payment or renewal of any Securities or any of such other Obligationsobligations, the that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase acceleration or otherwise. Capitalized terms used herein Failing payment by the Company when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Security Guarantee shall not be discharged except by complete performance of the obligations contained in the Securities and this Indenture, or pursuant to Section 1606.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to the Company or the Guarantors, any amount paid either to the Trustee or such Holder, this Security Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(d) Each Guarantor agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 502 for the purposes of this Security Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Section 502 such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Security Guarantee. The Guarantors shall have the same meanings assigned right to them seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Security Guarantees.
(e) Each Security Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Indenture unless otherwise indicated. Payment on each Security is guaranteed jointly Company for liquidation, reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and severallyshall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the Guarantors case may be, if at any time payment and performance of the Securities are, pursuant to Article 11 applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities or the Security Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(f) In case any provision of any Security Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the Indenture and reference is made remaining provisions shall not in any way be affected or impaired thereby.
(g) Each payment to such Indenture for the precise terms of the Guarantees. The Obligations of each Guarantor are limited to the lesser of (a) an amount equal to such Guarantor's Adjusted Net Assets as of the date of the Guarantee and (b) the maximum amount as well, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor, and after giving effect to any collections from or payments be made by or on behalf of any other a Guarantor in respect of the Obligations of such other Guarantor under its Guarantee or pursuant to its contribution Obligations under the Indenture, result in the Obligations of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent conveyance or fraudulent transfer under federal or state law or not otherwise being void, voidable or unenforceable under any similar other bankruptcy, receivership, insolvency, liquidation or other similar legislation or legal principles under applicable foreign law. Each Guarantor that makes a payment or distribution under a Security Guarantee shall be entitled to a contribution from each other Company in a pro rata amount based on the Adjusted Net Assets made without set-off, counterclaim, reduction or diminution of each Guarantor. Certain of the Guarantors may be released from their Guarantors upon the terms and subject to the conditions provided in the Indentureany kind or nature.
Appears in 1 contract
Security Guarantee. (a) Subject to the limitations set forth in the Indenturethis Article 12, each of the Guarantors (as defined in the Indenture referred to in this Security and each hereinafter referred to as a "Guarantor,"which term includes any successor or additional Guarantor under the Indenture) have hereby, jointly and severally, irrevocably and unconditionally guaranteed guarantees, on a senior basis, to each Holder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a1) the due and punctual payment principal of the principal (and premium, if any) of , and interest on the SecuritiesNotes shall be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase redemption or otherwise, (b) the due and punctual payment of interest on the overdue principal of and interest on the SecuritiesNotes, if any, to the extent if lawful, (c) the due and punctual performance of all other Obligations obligations of the Company and the Guarantors to the Holders under or the Indenture Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and the Securities thereof; and (d2) in case of any extension of time of payment or renewal of any Securities Notes or any of such other Obligationsobligations, the that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase acceleration or otherwise. Capitalized terms used herein Failing payment by the Company when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Security Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture, or pursuant to Section 12.06.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to the Company or the Guarantors, any amount paid either to the Trustee or such Holder, this Security Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(d) Each Guarantor agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 for the purposes of this Security Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Security Guarantee. The Guarantors shall have the same meanings assigned right to them seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Security Guarantees.
(e) Each Security Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Indenture unless otherwise indicated. Payment on each Security is guaranteed jointly Company for liquidation, reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and severallyshall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the Guarantors case may be, if at any time payment and performance of the Notes are, pursuant to Article 11 applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or the Security Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(f) In case any provision of any Security Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the Indenture and reference is made remaining provisions shall not in any way be affected or impaired thereby.
(g) Each payment to such Indenture for the precise terms of the Guarantees. The Obligations of each Guarantor are limited to the lesser of (a) an amount equal to such Guarantor's Adjusted Net Assets as of the date of the Guarantee and (b) the maximum amount as well, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor, and after giving effect to any collections from or payments be made by or on behalf of any other a Guarantor in respect of the Obligations of such other Guarantor under its Guarantee or pursuant to its contribution Obligations under the Indenture, result in the Obligations of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent conveyance or fraudulent transfer under federal or state law or not otherwise being void, voidable or unenforceable under any similar other bankruptcy, receivership, insolvency, liquidation or other similar legislation or legal principles under applicable foreign law. Each Guarantor that makes a payment or distribution under a Security Guarantee shall be entitled to a contribution from each other Company in a pro rata amount based on the Adjusted Net Assets made without set-off, counterclaim, reduction or diminution of each Guarantor. Certain of the Guarantors may be released from their Guarantors upon the terms and subject to the conditions provided in the Indentureany kind or nature.
Appears in 1 contract
Security Guarantee. (a) Subject to the limitations set forth in the Indenturethis Article 16, each of the Guarantors (as defined in the Indenture referred to in this Security and each hereinafter referred to as a "Guarantor,"which term includes any successor or additional Guarantor under the Indenture) have hereby, jointly and severally, irrevocably and unconditionally guaranteed guarantees, on a senior basis, to each Holder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities or the obligations of the Company hereunder or thereunder, that: (a1) the due and punctual payment principal of the principal (and premium, if any) of , and interest on the SecuritiesSecurities shall be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase redemption or otherwise, (b) the due and punctual payment of interest on the overdue principal of and interest on the Securities, if any, to the extent if lawful, (c) the due and punctual performance of all other Obligations obligations of the Company and the Guarantors to the Holders under or the Indenture Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and the Securities thereof; and (d2) in case of any extension of time of payment or renewal of any Securities or any of such other Obligationsobligations, the that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase acceleration or otherwise. Capitalized terms used herein Failing payment by the Company when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Security Guarantee shall not be discharged except by complete performance of the obligations contained in the Securities and this Indenture, or pursuant to Section 1606.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to the Company or the Guarantors, any amount paid either to the Trustee or such Holder, this Security Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(d) Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 502 for the purposes of this Security Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Section 502 such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Security Guarantee. The Guarantors shall have the same meanings assigned right to them seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Security Guarantees.
(e) Each Security Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Indenture unless otherwise indicated. Payment on each Security is guaranteed jointly Company for liquidation, reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and severallyshall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the Guarantors case may be, if at any time payment and performance of the Securities are, pursuant to Article 11 applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities or the Security Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(f) In case any provision of any Security Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the Indenture and reference is made remaining provisions shall not in any way be affected or impaired thereby.
(g) Each payment to such Indenture for the precise terms of the Guarantees. The Obligations of each Guarantor are limited to the lesser of (a) an amount equal to such Guarantor's Adjusted Net Assets as of the date of the Guarantee and (b) the maximum amount as well, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor, and after giving effect to any collections from or payments be made by or on behalf of any other a Guarantor in respect of the Obligations of such other Guarantor under its Guarantee or pursuant to its contribution Obligations under the Indenture, result in the Obligations of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent conveyance or fraudulent transfer under federal or state law or not otherwise being void, voidable or unenforceable under any similar other bankruptcy, receivership, insolvency, liquidation or other similar legislation or legal principles under applicable foreign law. Each Guarantor that makes a payment or distribution under a Security Guarantee shall be entitled to a contribution from each other Company in a pro rata amount based on the Adjusted Net Assets made without set-off, counterclaim, reduction or diminution of each Guarantor. Certain of the Guarantors may be released from their Guarantors upon the terms and subject to the conditions provided in the Indentureany kind or nature.
Appears in 1 contract
Security Guarantee. Subject If so provided in a Board Resolution or Supplemental Indenture with respect to a particular series of Securities, subject to the limitations set forth in provisions of this Article XIII, each of the IndentureGuarantors, as primary obligors and not merely as sureties, hereby fully, unconditionally and irrevocably guarantees on a senior basis to each Holder and to the Guarantors Trustee on behalf of the Holders: (as defined in the Indenture referred to in this Security and each hereinafter referred to as a "Guarantor,"which term includes any successor or additional Guarantor under the Indenture) have jointly and severally, irrevocably and unconditionally guaranteed (ai) the due and punctual payment of the principal (and of, premium, if any) of , on and interest on each Security, when and as the Securitiessame shall become due and payable, whether at Stated Maturitywhether, by acceleration, required repurchase, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase redemption or otherwise, (b) the due and punctual payment of interest on the overdue principal of and interest interest, if any, on the Securities, if any, to the extent lawfullawful (in each case including interest accruing on or after the filing of any petition in bankruptcy or reorganization relating to the Company or any Guarantor, (c) whether or not a claim for post filing interest is allowed in such proceeding), and the due and punctual performance of all other Obligations obligations of the Company and the Guarantors to the Holders under or the Trustee, all in accordance with the terms of such Security and this Indenture and the Securities and (dii) in the case of any extension of time of payment or renewal of any Securities Security or any of such other Obligationsobligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration, required repurchase (including by reason of Change of Control), call for redemptionredemption or otherwise (each of clauses (i) and (ii), upon collectively, the "Security Guarantee"). In addition, if the Security Guarantee has been so provided by Board Resolution or Supplemental Indenture with respect to a Change particular series of Control OfferSecurities, Asset Sale Offereach of the Guarantors shall waive diligence, purchase or otherwise. Capitalized terms used herein shall have the same meanings assigned to them presentment, demand of payment, filing of claims with a court in the Indenture unless otherwise indicatedevent 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, and covenants that this Security Guarantee will not be discharged as to any such Security except by payment in full of the principal thereof and interest thereon and as provided in Section 4.01 and Section 4.02 (subject to Section 4.06). Payment on each Moreover, the obligations of the Guarantors hereunder shall not be affected by any failure or delay of the Trustee to exercise any right or remedy under this Indenture, such Securities or this Security is Guarantee and the maturity of the obligations guaranteed jointly hereby may be accelerated as provided in Article V for the purposes of this Article XIII. In the event of any declaration of acceleration of such obligations as provided in Article V, such obligations (whether or not due and severally, payable) shall forthwith become due and payable by the Guarantors for the purpose of this Article XIII. In addition, if the Security Guarantee has been provided by Board Resolution or Supplemental Indenture with respect to a particular series of Securities, without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article V the Trustee shall promptly make a demand for payment on the Securities under the Security Guarantee provided for in this Article XIII. If a Board Resolution or Supplemental Indenture provides for the Security Guarantee with respect to a particular series of Securities, such guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant portion of the Company's assets, and if the Trustee or the Holder of any Security is required by any court or otherwise to return to the Company or any Guarantor, or any custodian, receiver, liquidator, trustee, sequestrator or other similar official acting in relation to the Company or the Guarantors, any amount paid to the Trustee or such Holder in respect of a Security, this Security Guarantee, to the extent theretofore discharged, shall continue to be effective or be reinstated in full force and effect, as the case may be, all as though such payment has not been made. Each of the Guarantors shall further agree, to the fullest extent that they may lawfully do so, that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article V hereof for the purposes of this Security Guarantee, notwithstanding any stay, injunction or other prohibition extant under any applicable bankruptcy law preventing such acceleration in respect of the obligations Guaranteed hereby. If a Board Resolution or Supplemental Indenture provides for the Security Guarantee with respect to a particular series of Securities, each of the Guarantors shall irrevocably waive any claim or other rights which they may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of their obligations under such Security Guarantee and this Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, any right to participate in any claim or remedy of the Holders against the Company or any collateral which any such Holder or the Trustee on behalf of such Holder hereafter acquires, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, 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 or other rights until such time as the Securities and all of the Company's other obligations being guaranteed hereby shall have been indefeasibly paid in full. If any amount shall be paid to the Guarantors in violation of the preceding sentence and the principal of, premium, if any, and accrued interest on the Securities shall not have been paid in full, such amount shall be deemed to have been paid to the Guarantors for the benefit of, and held in trust for the benefit of, the Holders, and shall forthwith be paid to the Trustee for the benefit of the Holders to be credited and applied upon the principal of, premium, if any, and accrued interest on the Securities. Each of the Guarantors acknowledges that it will receive direct and indirect benefits from the issuance of the Securities pursuant to Article 11 of the this Indenture and reference is that the waivers set forth in this Section 13.01 are knowingly made in contemplation of such benefits. In addition to such the requirement of a Board Resolution or Supplemental Indenture providing for the precise terms Security Guarantee with respect to a particular Security, the Security Guarantee set forth in this Section 13.01 shall not be valid or become obligatory for any purpose with respect to a Security until the certificate of the Guarantees. The Obligations of each Guarantor are limited to the lesser of (a) an amount equal to authentication on such Guarantor's Adjusted Net Assets as of the date of the Guarantee and (b) the maximum amount as well, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor, and after giving effect to any collections from or payments made Security shall have been signed by or on behalf of any other Guarantor in respect of the Obligations of such other Guarantor under its Guarantee or pursuant to its contribution Obligations under the Indenture, result in the Obligations of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent conveyance or fraudulent transfer under federal or state law or not otherwise being void, voidable or unenforceable under any similar other bankruptcy, receivership, insolvency, liquidation or other similar legislation or legal principles under applicable foreign law. Each Guarantor that makes a payment or distribution under a Guarantee shall be entitled to a contribution from each other Company in a pro rata amount based on the Adjusted Net Assets of each Guarantor. Certain of the Guarantors may be released from their Guarantors upon the terms and subject to the conditions provided in the IndentureTrustee.
Appears in 1 contract
Samples: Indenture (Amber Air Freight Corp)
Security Guarantee. Subject Unless otherwise indicated for a particular series of Securities by an Officer’s Certificate, supplemental indenture or resolutions of the Issuers’ Boards, subject to this Article 10, from and after the limitations set forth Issue Date and upon the execution and delivery of (x) this Indenture or (y) in the case of any Person that becomes a Guarantor after the date hereof, any supplemental indenture to this Indenture, each of the Guarantors (as defined in the Indenture referred to in this Security and each hereinafter referred to as a "Guarantor,"which term includes any successor or additional Guarantor under the Indenture) have hereby, jointly and severally, irrevocably unconditionally guarantees to each Holder of a Security authenticated and unconditionally guaranteed delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities or the obligations of the Issuers hereunder or thereunder, that: (a) the due and punctual payment of the principal (and of, premium, if any) of , or interest and interest Additional Amounts, if any, on the SecuritiesSecurities shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase redemption or otherwise, (b) the due and punctual payment of interest on the overdue principal of and interest on the Securities, if any, to the extent if lawful, (c) the due and punctual performance of all other Obligations obligations of the Company and the Guarantors Issuers to the Holders under or the Indenture Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and the Securities thereof; and (db) in case of any extension of time of payment or renewal of any Securities or any of such other Obligationsobligations, the that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase acceleration or otherwise. Capitalized terms used herein Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the 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 any Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of an Issuer, any right to require a proceeding first against an Issuer, protest, notice and all demands whatsoever and covenants that this Security Guarantee shall not be discharged except by complete performance of the obligations contained in the Securities and this Indenture. Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or the Guarantors, any amount paid either to the Trustee or such Holder, this Security Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the Maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of this Security Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Security Guarantee. The Guarantors shall have the same meanings assigned right to them seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Security Guarantees. Each Security Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against an Issuer for liquidation or reorganization, should such Issuer become insolvent or make an assignment for the Indenture unless otherwise indicated. Payment on each Security is guaranteed jointly benefit of creditors or should a receiver or trustee be appointed for all or any significant part of such Issuer’s assets, and severallyshall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the Guarantors case may be, if at any time payment and performance of the Securities are, pursuant to Article 11 applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities or Security Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. In case any provision of any Security Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the Indenture and reference is made to such Indenture for the precise terms of the Guaranteesremaining provisions shall not in any way be affected or impaired thereby. The Obligations Security Guarantee issued by any Guarantor shall be a general senior obligation of each such Guarantor are limited to the lesser and shall be pari passu in right of (a) an amount equal to such Guarantor's Adjusted Net Assets as of the date of the Guarantee payment with all existing and (b) the maximum amount as well, after giving effect to such maximum amount and all other contingent and fixed liabilities future senior Indebtedness of such Guarantor, and after giving effect . Each payment to any collections from or payments be made by or on behalf of any other a Guarantor in respect of the Obligations of such other Guarantor under its Guarantee or pursuant to its contribution Obligations under the Indenture, result in the Obligations of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent conveyance or fraudulent transfer under federal or state law or not otherwise being void, voidable or unenforceable under any similar other bankruptcy, receivership, insolvency, liquidation or other similar legislation or legal principles under applicable foreign law. Each Guarantor that makes a payment or distribution under a Security Guarantee shall be entitled to a contribution from each other Company in a pro rata amount based on the Adjusted Net Assets made without set-off, counterclaim, reduction or diminution of each Guarantor. Certain of the Guarantors may be released from their Guarantors upon the terms and subject to the conditions provided in the Indentureany kind or nature.
Appears in 1 contract
Security Guarantee. (a) Subject to this Article 12, the limitations set forth in Guarantor hereby unconditionally guarantees to each Holder of a Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Guarantors (as defined in Securities or the Indenture referred to in this Security and each hereinafter referred to as a "Guarantor,"which term includes any successor obligations of the Issuer hereunder or additional Guarantor under the Indenture) have jointly and severallythereunder, irrevocably and unconditionally guaranteed that: (a) the due Issue Price of and punctual payment of the principal (accrued interest and premiumContingent Interest and Defaulted Interest, if any) of and interest , on the SecuritiesSecurities will be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase or otherwise, (b) the due and punctual payment of interest on the overdue principal of and interest (including Contingent Interest) on the Securities, if any, to the extent if lawful, (c) the due and punctual performance of all other Obligations obligations of the Company and the Guarantors Issuer to the Holders under or the Indenture Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and the Securities thereof; and (db) in case of any extension of time of payment or renewal of any Securities or any of such other Obligationsobligations, the 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, call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase acceleration or otherwise. Capitalized terms used herein Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantor shall have be obligated to pay the same meanings assigned to them in the Indenture unless otherwise indicated. Payment on each Security is guaranteed jointly and severally, by the Guarantors pursuant to Article 11 of the Indenture and reference is made to such Indenture for the precise terms of the Guaranteesimmediately. The Obligations Guarantor agrees that this is a guarantee of each Guarantor are limited to the lesser payment and not a guarantee of (a) an amount equal to such Guarantor's Adjusted Net Assets as of the date of the Guarantee and collection.
(b) The Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the maximum amount as wellvalidity, after giving effect regularity or enforceability of the Securities or this Indenture, the absence of any action to such maximum amount 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 Issuer, 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 Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenant that its guarantee shall not be discharged except by complete performance of the obligations contained in the Securities and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantor or any custodian, trustee, liquidator or other contingent and fixed liabilities of such similar official acting in relation to either the Issuer or the Guarantor, any amount paid by either to the Trustee or such Holder, the guarantee of the Guarantor, to the extent theretofore discharged, shall be reinstated in full force and after giving effect effect.
(d) The Guarantor agrees that it shall not be entitled to any collections from or payments made by or on behalf right of subrogation in relation to the Holders of the Securities in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders of the Securities and the Trustee, on the other Guarantor hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of its guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such other Guarantor under its Guarantee or pursuant to its contribution Obligations under the Indentureobligations as provided in Article 6 hereof, result in the Obligations of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent conveyance or fraudulent transfer under federal or state law obligations (whether or not otherwise being void, voidable or unenforceable under any similar other bankruptcy, receivership, insolvency, liquidation or other similar legislation or legal principles under applicable foreign law. Each due and payable) shall forthwith become due and payable by the Guarantor that makes a payment or distribution under a Guarantee shall be entitled to a contribution from each other Company in a pro rata amount based on for the Adjusted Net Assets purpose of each Guarantor. Certain of the Guarantors may be released from their Guarantors upon the terms and subject to the conditions provided in the Indentureits guarantee.
Appears in 1 contract
Security Guarantee. Subject to the limitations set forth in the Indentureprovisions of this Article Ten, the Guarantors Guarantor hereby fully, unconditionally and irrevocably guarantees to each Holder and to the Trustee on behalf of the Holders:
(as defined in the Indenture referred to in this Security and each hereinafter referred to as a "Guarantor,"which term includes any successor or additional Guarantor under the Indenture) have jointly and severally, irrevocably and unconditionally guaranteed (ai) the due and punctual payment of the principal (and of, premium, if any) of , on and interest on each Security, when and as the Securitiessame shall become due and payable, whether at Stated Maturitywhether, by acceleration, required repurchase (including by reason of Change of 80 73 Control), call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase redemption or otherwise, (b) the due and punctual payment of interest on the overdue principal of and interest interest, if any, on the Securities, if any, to the extent lawfullawful (in each case including interest accruing on or after filing of any petition in bankruptcy or reorganization relating to the Company or the Guarantor, (c) whether or not a claim for post filing interest is allowed in such proceeding), and the due and punctual performance of all other Obligations obligations of the Company and the Guarantors to the Holders under or the Trustee, all in accordance with the terms of such Security and this Indenture and the Securities and (dii) in the case of any extension of time of payment or renewal of any Securities or any of such other Obligationsobligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration, required repurchase (including by reason of Change of Control), call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase redemption or otherwise. Capitalized terms used herein The Guarantor 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, and covenants that this Security Guarantee will not be discharged as to any such Security except by payment in full of the principal thereof and interest thereon and as provided in Section 8.01 and Section 8.02 (subject to Section 8.06). The Guarantor hereby also irrevocably waives any right contemplated by Articles 480 (second paragraph), 481 and 482 of the Argentine Commercial Code as well as any rights and powers contemplated by Articles 1990, 1994, 2012, 2015, 2017, 2018, 2020, 2021 (except the right to oppose payment), 2022, 2023, 2024, 2025, 2026, 2028, 2029 (in the same extension as provided in the third paragraph of this Section 10.01), 2043, 2044, 2045, 2046, 2047, 2049 (except in the case of express prior written waiver issued by the Trustee), and 2050 of the Argentine Civil Code, to the extent any such rights of defenses would otherwise become applicable or available to the Guarantor. The obligations of the Guarantor hereunder shall not be affected by any failure or delay of the Trustee to exercise any right or remedy under this Indenture, the Securities or this Security Guarantee. The maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six for the purposes of this Article Ten. In the event of any declaration of acceleration of such obligations as provided in Article Six, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Article Ten. In addition, without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article Six, the Trustee shall promptly make a demand for payment on the Securities under the Security Guarantee provided for in this Article Ten. The Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant portion of the Company's assets, and if the Trustee or the Holder of any Security is required by any court or otherwise to return to the Company or the Guarantor, or any custodian, receiver, liquidator, trustee, sequestrator or other similar official acting in relation to the Company or the Guarantor, any amount paid to the Trustee or such Holder in respect of a Security, this Security Guarantee, to the extent theretofore discharged, shall continue to be effective or be reinstated in full force and effect, as the case 81 74 may be, all as though such payment has not been made. The Guarantor further 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, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six hereof for the purposes of this Security Guarantee, notwithstanding any stay, injunction or other prohibition extant under any applicable bankruptcy law preventing such acceleration in respect of the obligations Guaranteed hereby. The Guarantor hereby irrevocably waives any claim or other rights which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of its obligations under this Security Guarantee and this Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, any right to participate in any claim or remedy of the Holders against the Company or any collateral which any such Holder or the Trustee on behalf of such Holder hereafter acquires, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, 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 or other rights until such time as the Securities and all of the Company's other obligations being guaranteed hereby shall have been indefeasibly paid in full. If any amount shall be paid to the same meanings assigned Guarantor in violation of the preceding sentence and the principal of, premium, if any, and accrued interest on the Securities shall not have been paid in full, such amount shall be deemed to them have been paid to the Guarantor for the benefit of, and held in trust for the Indenture unless otherwise indicatedbenefit of, the Holders, and shall forthwith be paid to the Trustee for the benefit of the Holders to be credited and applied upon the principal of, premium, if any, and accrued interest on the Securities. Payment on each Security is guaranteed jointly The Guarantor acknowledges that it will receive direct and severally, by indirect benefits from the Guarantors issuance of the Securities pursuant to Article 11 of the this Indenture and reference is that the waivers set forth in this Section 10.01 are knowingly made to in contemplation of such Indenture for the precise terms of the Guaranteesbenefits. The Obligations Security Guarantee set forth in this Section 10.01 shall not be valid or become obligatory for any purpose with respect to a Security until the certificate of each Guarantor are limited to the lesser of (a) an amount equal to authentication on such Guarantor's Adjusted Net Assets as of the date of the Guarantee and (b) the maximum amount as well, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor, and after giving effect to any collections from or payments made Security shall have been signed by or on behalf of any other Guarantor in respect of the Obligations of such other Guarantor under its Guarantee or pursuant to its contribution Obligations under the Indenture, result in the Obligations of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent conveyance or fraudulent transfer under federal or state law or not otherwise being void, voidable or unenforceable under any similar other bankruptcy, receivership, insolvency, liquidation or other similar legislation or legal principles under applicable foreign law. Each Guarantor that makes a payment or distribution under a Guarantee shall be entitled to a contribution from each other Company in a pro rata amount based on the Adjusted Net Assets of each Guarantor. Certain of the Guarantors may be released from their Guarantors upon the terms and subject to the conditions provided in the IndentureTrustee.
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