Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are authenticated by the Trustee and delivered by the Trustee or the Operating Partnership that: (i) the principal of, and premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due, whether at Stated Maturity, upon acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, interest on overdue principal of, and overdue premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall be duly and punctually paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption or otherwise, or duly and punctually performed, as the case may be, in accordance with the terms of the extension or renewal, subject, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectively, the “Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, to the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, to the Trustee or such Holder in respect of the Notes, the Subsidiary Guarantee of the Notes, to the extent theretofore discharged or released, shall, to the extent permitted by applicable law, be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, and (y) in the event of any acceleration of any such obligations as provided in Article Five hereof, the Subsidiary Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP for the purpose of the Subsidiary Guarantee.
Appears in 2 contracts
Samples: Second Supplemental Indenture (Mid-America Apartments, L.P.), First Supplemental Indenture (Mid-America Apartments, L.P.)
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees guarantees, on an unsubordinated basis, as primary obligor and not merely as surety, to each Holder of Notes that are authenticated by the Securities and the Trustee the full and delivered by the Trustee or the Operating Partnership that: (i) the principal of, and premium, if any, and interest on, the Notes shall be duly and punctually paid in full punctual payment when due, whether at Stated Maturitymaturity, upon acceleration, upon redemption by acceleration or otherwise; , of the principal of and interest, on the Securities and all other obligations and liabilities of the Company under this Indenture (iiincluding without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) (all the foregoing being hereinafter collectively called the “Obligations”). The Subsidiary Guarantor further agrees (to the extent permitted by applicable law) that the Obligations may be extended or renewed, interest on overdue principal ofin whole or in part, without notice or further assent from it, and overdue premiumthat it will remain bound under this Article 14 notwithstanding any extension or renewal of any Obligation. The Subsidiary Guarantor waives presentation to, if any, demand of payment from and interest on, protest to the Notes shall be duly Company of any of the Obligations and punctually paid in full when due; and (iii) all other also waives notice of protest for nonpayment. The Subsidiary Guarantor waives notice of any Default under the Securities or the Obligations. The obligations of the Operating Partnership Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Obligations or any of them; or (e) any change in the ownership of the Company. The Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Obligations. The obligations of the Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full or pursuant to Sections 1402 and 1403 hereof), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever (other than payment of the Obligations in full or pursuant to Sections 1402 and 1403 hereof) or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Subsidiary Guarantor herein shall not be (to the Holders extent permitted by law) discharged or impaired or otherwise affected by the failure of Notes and (solely insofar any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of the Subsidiary Guarantor or would otherwise operate as it relates to a discharge of the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) Subsidiary Guarantor as a matter of law or equity. The Subsidiary Guarantor agrees that its Subsidiary Guarantee herein shall be duly and punctually paid remain in full when due force and effect until payment in full of all the Obligations or duly and punctually performeduntil such Subsidiary Guarantor is released from its Subsidiary Guarantee upon the merger or the sale of all the common stock or assets of the Subsidiary Guarantor in compliance with Section 1402, or upon its release from the Subsidiary Guarantee pursuant to Section 1403. The Subsidiary Guarantor further agrees that unless its Subsidiary Guarantee has been released pursuant to Section 1402 or Section 1403, its Subsidiary Guarantee herein shall continue to be effective or be reinstated, as the case may be, all in accordance with the terms hereof and if at any time payment, or any part thereof, andof principal of or interest, on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in case limitation of any extension other right which any Holder has at law or in equity against the Subsidiary Guarantor by virtue hereof, upon the failure of time of payment or renewal of any Notes or the Company to pay any of such other obligations, the Obligations when and as the same shall be duly and punctually paid in full when become due, whether at the Stated Maturitymaturity, by acceleration, call for redemption acceleration or otherwise, the Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or duly and punctually performed, as the case may because to be paid, in accordance with the terms of the extension or renewal, subject, however, in each case referred to above in this paragraphcash, to the limitations set forth in Section 1703 hereof (collectively, the “Subsidiary Guarantee Obligations”). “Subject Holders an amount equal to the provisions sum of this Article Seventeen(i) the unpaid amount of such Obligations then due and owing and (ii) without duplication of any amounts included in the preceding clause (i), CRLP hereby agrees, accrued and unpaid interest (including any Additional Interest) on such Obligations then due and owing (but only to the extent permitted not prohibited by applicable law, that its Subsidiary Guarantee hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership (at any time while a The Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, to the Trustee or such Holder in respect of the Notes, the Subsidiary Guarantee of the Notes, to the extent theretofore discharged or released, shall, to the extent permitted by applicable law, be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantor, on the one hand, and the Holders of Notes and the TrusteeHolders, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article Five hereofthis Indenture for the purposes of its Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of any such obligations as provided in Article Five hereofObligations, the Subsidiary Guarantee such Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantor for the purpose purposes of the this Subsidiary Guarantee. The Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee in enforcing any rights under this Section 1401.
Appears in 2 contracts
Samples: Indenture (Newmont Mining Corp /De/), Indenture (Newmont Mining Corp /De/)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Twelve, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby jointly, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully severally and unconditionally guarantees guarantees, on a secured basis, to each Holder of Notes that are authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company under this Indenture or the Notes, that: :
(ia) the principal of, and premium, if any, and interest on, on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturity, upon acceleration, upon redemption or repurchase, by acceleration or otherwise; (ii) to the extent permitted by applicable law, interest on overdue principal of, and overdue premium, if any, and interest on, all obligations of the Company to Holders of the Notes or the Trustee under this Indenture or the Notes shall be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually promptly performed, as the case may be, all in accordance with the terms hereof of this Indenture and thereof, and, the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, howeverupon redemption or repurchase, in by acceleration or otherwise. Failing payment when due of any amount so guaranteed or failing performance of any other obligation so guaranteed for whatever reason, each case referred Subsidiary Guarantor shall be obligated to above in this paragraphpay, or to perform or cause the limitations set forth in Section 1703 hereof (collectivelyperformance of, the “same immediately. Each Subsidiary Guarantee Obligations”)Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. “Subject to Each of the provisions of this Article Seventeen, CRLP Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agrees that its Subsidiary Guarantee obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any thereofprovisions of this Indenture or the Notes, the entry release of any other Subsidiary Guarantor, the recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Subsidiary Guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquisheswaives, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs this Indenture. Unless and expenses provided for under this Indenture or (y) as provided until released with respect to any Subsidiary Guarantor in accordance with Section 1018(C) or Article Four 12.04 of this Indenture (subject Indenture, this Subsidiary Guarantee shall remain in full force and effect and continue to survival 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 certain obligations creditors or should a custodian, trustee, liquidator or other similar official be appointed for all or any part of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Company’s assets. “If any Holder of the Notes or the Trustee is required by any court or governmental authority or is otherwise required to return to either the Operating Partnership or CRLPCompany, any Subsidiary Guarantor or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPsuch Subsidiary Guarantor, any amount paid by the Operating Partnership (at any time while a Company or such Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, Guarantor to the Trustee or such Holder in respect of the NotesHolder, the Notes and this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture . Each Subsidiary Guarantor further agrees (to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the fullest extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, ) that, as between it, on the one hand, and the Holders of the Notes and the Trustee, on the other handother, (xa) subject to this Article Twelve, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereofof this Indenture, for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (yb) in the event of any acceleration of any such obligations as provided in such Article Five hereofFive, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of the this Subsidiary Guarantee.
Appears in 2 contracts
Samples: Senior Secured Notes Agreement (Office Properties Income Trust), Senior Secured Notes Agreement (Office Properties Income Trust)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 11, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are authenticated by a Note and to the Trustee and delivered by its successors and assigns, irrespective of the Trustee validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (ia) the principal of, and premium, if any, of and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturity, upon acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, interest due on overdue principal of, any Note Payment Date and overdue premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Subsidiary Guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of the this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
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Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Subject to Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture10.05 hereof, CRLP will be deemed to have acknowledged the Guarantors hereby, jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees guarantee to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee or and to the Operating Partnership Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes held thereby and the Obligations of the Company hereunder and thereunder, that: (ia) the principal ofof and interest, and premium, if any, and interest onLiquidated Damages, if any, on the Notes shall will be duly and punctually promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; , and interest on the overdue principal (ii) to the extent permitted by applicable law), interest on overdue principal ofany interest, and overdue if any, premium, if any, and interest onLiquidated Damages, if any, on the Notes shall Notes, and all other payment Obligations of the Company to the Holders or the Trustee hereunder or thereunder will be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectsubject to any applicable grace period, howeverwhether at stated maturity, by acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the Obligations of the Guarantors hereunder in each case referred to above in this paragraph, the same manner and to the limitations set forth in Section 1703 hereof (collectively, same extent as the “Subsidiary Guarantee Obligations”)Obligations of the Company. “Subject to the provisions of this Article Seventeen, CRLP The Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Guarantor. CRLP Each Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, Obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Guarantors, or any trustee Note Custodian, Trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), Company or any amount paid by CRLP, Guarantor to the Trustee or such Holder in respect of the NotesHolder, the Subsidiary Guarantee of the NotesGuarantees, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Each Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligationsguaranteed hereby. CRLP agrees, to the extent permitted by applicable law, Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (xa) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of its Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee ObligationsObligations guaranteed thereby, and (yb) in the event of any declaration of acceleration of any such obligations Obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee such Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Guarantor for the purpose of its Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees.
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Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Each Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and -------------------- unconditionally guarantees (each a "Subsidiary Guarantee") on a senior unsecured basis to each Holder of Notes that are authenticated by and to the Trustee and delivered by its successors and assigns the Trustee or the Operating Partnership that: (i) the principal of, performance and premium, if any, and interest on, the Notes shall be duly and punctually paid in full punctual payment when due, whether at Stated Maturitymaturity, upon accelerationby acceleration or otherwise, upon redemption of all obligations of the Company under this Indenture and the Securities. The Guarantor further agrees that the obligations of the Company may be extended or renewed, in whole or in part, without notice or further assent from such Guarantor, and that such Guarantor will remain bound under this Article X notwithstanding any extension or renewal of any such obligation. Each Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Company's obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Securities or the Company's obligations. The obligations of any Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Securities or any other agreement or otherwise; (iib) to any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the extent permitted by applicable law, interest on overdue principal of, and overdue premium, if any, and interest onterms or provisions of this Indenture, the Notes shall be duly and punctually paid in full when dueSecurities or any other agreement; and (iiid) all other the release of any security held by any Holder or the Trustee for the obligations of the Operating Partnership Company or any of them; (e) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Holders obligations of Notes the Company; or (f) any change in the ownership of such Guarantor. Each Guarantor further agrees that its Subsidiary Guarantee constitutes a guarantee of payment, performance and compliance when due (solely insofar as it relates and not a guarantee of collection) and waives any right to the Notes) to require that any resort be had by any Holder or the Trustee to any security held for payment of the obligations of the Company. The obligations of each Guarantor hereunder and under the Notes (includingshall not be subject to any reduction, without limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of set-off, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to pay feesassert any claim or demand or to enforce any remedy under this Indenture, expenses and the Securities or any other charges) agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantor further agrees that its Subsidiary Guarantee shall continue to be duly and punctually paid in full when due effective or duly and punctually performedbe reinstated, as the case may be, all in accordance with the terms hereof and if at any time payment, or any part thereof, and, of principal of or interest on any obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in case limitation of any extension other right that any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of time the Company to pay the principal of payment or renewal of any Notes or interest on any of such other obligations, the Securities when and as the same shall be duly and punctually paid in full when become due, whether at the Stated Maturitymaturity, by acceleration, call for by redemption or otherwise, or duly and punctually performed, as the case may be, in accordance to perform or comply with the terms any other monetary obligation of the extension or renewal, subject, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectively, the “Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, to the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for Company under this Indenture or (y) as provided the Securities, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, pay, or cause to be paid, in Section 1018(C) or Article Four of this Indenture (subject cash, to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes Holders or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any an amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect equal to the Notes)sum of (i) the unpaid principal amount of such obligations, or any amount paid by CRLP, to the Trustee or (ii) accrued and unpaid interest on such Holder in respect of the Notes, the Subsidiary Guarantee of the Notes, obligations (but only to the extent theretofore discharged or released, shall, not prohibited by law) and (iii) all other monetary obligations of the Company to the extent permitted by applicable law, be reinstated in full force Holders and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effectTrustee. CRLP agrees, to the extent permitted by applicable law, Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such Subsidiary Guarantee Obligationsobligations. CRLP agrees, to the extent permitted by applicable law, Each Guarantor further agrees that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereofIV for the purposes of such Guarantor's Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five hereofIV, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Guarantor for the purpose purposes of this Section. Each Guarantor also agrees to pay any and all costs and expenses (including reasonable counsels' fees and expenses) incurred by the Trustee or any Holder of a Security in enforcing any rights under this section with respect to such Guarantor. To further evidence its Subsidiary Guarantee to the Holders, each Guarantor hereby agrees to execute its Subsidiary Guarantee in substantially the form set forth in Exhibit A and B hereto to be endorsed on each Security ordered to be authenticated and delivered by the Trustee. Each Guarantor hereby agrees that its Subsidiary Guarantee set forth in this Section 10.1 shall remain in full force and effect notwithstanding any failure to endorse on each Security a notation of its Subsidiary Guarantee. The Subsidiary Guarantee shall be signed on behalf of each Guarantor by its Chairman of the Board, any Vice Chairman of the Board, its Chief Executive Officer, its President, any executive vice president, any senior vice president, its Controller, Treasurer, or any Assistant Treasurer or its Secretary or any Assistant Secretary or any authorized signatory prior to the authentication of the Security on which it is endorsed, and the delivery of such Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee on behalf of such Guarantor. Such signature upon a Subsidiary Guarantee may be the manual or facsimile signature of such officer and may be imprinted or otherwise reproduced on the Subsidiary Guarantee, and in case such officer who shall have signed the Subsidiary Guarantee shall cease to be such officer before the Security on which the Subsidiary Guarantee is endorsed shall have been authenticated and delivered by the Trustee or disposed of by the Company, such Security nevertheless may be authenticated and delivered or disposed of as though the Person who signed the Subsidiary Guarantee had not ceased to be such officer of such Guarantor.
Appears in 1 contract
Subsidiary Guarantee. “The provisions Subject to Section 11.06 hereof, each of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenturethe Guarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated and made available for delivery by the Trustee and delivered by to the Trustee or and its successors and assigns, irrespective of the Operating Partnership validity and enforceability of this Indenture, the Notes and the Obligations of the Company hereunder and thereunder, that: (ia) the principal of, and premium, if any, interest and interest onLiquidated Damages, if any, on the Notes shall will be duly and punctually promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; , and interest on the overdue principal, premium, if any, (ii) to the extent permitted by applicable law, ) interest on overdue principal of, and overdue premiumany interest, if any, and interest onLiquidated Damages, if any, on the Notes shall Notes, and all other payment Obligations of the Company to the Holders or the Trustee hereunder or thereunder will be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectsubject to any applicable grace period, howeverwhether at stated maturity, by acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the Obligations of the Guarantors hereunder in each case referred to above in this paragraph, the same manner and to the limitations set forth in Section 1703 hereof (collectively, same extent as the “Subsidiary Guarantee Obligations”)Obligations of the Company. “Subject to the provisions of this Article Seventeen, CRLP The Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Guarantor. CRLP Each Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, Obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Guarantors, or any trustee Note Custodian, Trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive . Each Guarantor agrees that so long as any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of Obligations on the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that are outstanding it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligationsguaranteed hereby. CRLP agrees, to the extent permitted by applicable law, Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee ObligationsObligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations Obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee such Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees.
Appears in 1 contract
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Ten, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary severally, unconditionally Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (ia) the principal ofof and interest, and premiumincluding Special Interest, if any, and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes (including Special Interest), if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Subsidiary Guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the Subsidiary Guarantee of the Notesthis Guarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations Guaranteed hereby until payment in full and performance of all such obligations Guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed Guaranteed hereby may be accelerated as provided in Article Five hereofSix hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations Guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five Six hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor of the Notes so long as the exercise of such right does not impair the rights of the Holders under this Guarantee.
Appears in 1 contract
Samples: Indenture (Nci Building Systems Inc)
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from (a) On the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. AccordinglyEscrow Release Date, subject to the provisions of this Article Seventeen10, CRLP hereby fully each of the Subsidiary Guarantors shall, jointly and severally, irrevocably and unconditionally guarantees guarantee to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (ia) the principal of, and premium, if any, and or interest on, on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, all other Obligations of the Notes Company to the Holders or the Trustee hereunder or thereunder shall be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection.
(b) The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or Indenture.
(yc) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause .
(ivd) of the last paragraph of Section 1018(C), of CRLP’s Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees.
(e) Each Subsidiary 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, reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary 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 Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(g) Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
(h) All provisions set forth herein with respect to the Subsidiary Guarantees are subject to the Agreed Security Principles.
Appears in 1 contract
Samples: Indenture (Maxar Technologies Inc.)
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for For good and valuable consideration, including, without limitation, such substantial benefits. Accordinglythe receipt and sufficiency of which is hereby acknowledged, subject to the provisions of this Article SeventeenSection 10.3, CRLP each Subsidiary Guarantor, jointly and severally, hereby fully and unconditionally guarantees (such guarantees, together with further guarantees granted from time to time pursuant to Section 10.6, being the "Subsidiary Guarantee") to each Holder of Notes that are authenticated by and the Trustee and delivered by irrespective of the Trustee validity or enforceability of this Indenture, the Notes, the Registration Rights Agreement or the Operating Partnership thatObligations of the Issuers hereunder or thereunder: (i) the due and punctual payment of the principal of, and premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due, whether at Stated Maturity, upon acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, interest on overdue principal of, and overdue premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations interest after the filing of a petition initiating any proceedings referred to pay feesin Section 6.1(j) or (k)), expenses whether at maturity or on an interest payment date, by acceleration, call for redemption or otherwise; (ii) the due and punctual payment of interest on the overdue principal and premium, if any, of, and interest on, the Notes, if lawful; (iii) the due and punctual payment and performance of all other charges) shall be duly Obligations of the Issuers under the Notes, this Indenture and punctually paid in full when due or duly and punctually performed, as the case may beRegistration Rights Agreement, all in accordance with the terms hereof set forth herein and thereof, and, in the Notes and the Registration Rights Agreement; and (iv) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations hereunder or under the Notes or the Registration Rights Agreement, the same shall be duly due and punctually paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption punctual payment or otherwise, or duly and punctually performed, as the case may be, performance thereof in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to by acceleration or otherwise. Failing payment when due by the limitations set forth in Section 1703 hereof (collectivelyIssuers of any amount so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions of this Article Seventeen, CRLP Each Subsidiary Guarantor hereby agrees, to the extent permitted by applicable law, agrees that (i) its Subsidiary Guarantee obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of Notes, this Indenture, the Registration Rights Agreement or the Obligations of the Issuers hereunder or thereunder, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any provisions hereof or thereof, any amendment of this Indenture or the entry Notes, the recovery of any judgment against either of the Operating PartnershipIssuers or any of the Subsidiaries, any action to enforce the same same, or any other circumstance which that might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives a guarantor and relinquishes, to the extent permitted by applicable law: (aii) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “this Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held will not be discharged except by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason complete performance of the incapacityObligations of the Issuers under the Notes, lack of authority, death or disability of any other Person or Persons or this Indenture and the failure of a Registration Rights Agreement. Each Subsidiary Guarantee Benefited Party Guarantor hereby agrees that it shall not be entitled to file or enforce a claim against the estate and irrevocably waives (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (ci) diligence, presentment, the demand of payment, filing of claims claim with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of either of the Operating PartnershipIssuers, any Subsidiary Guarantor, any other Subsidiary or any other obligor under the Notes, any right to require a proceeding first against the Operating Partnership and applicable Issuer, any demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating PartnershipSubsidiary Guarantor, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for obligor under this Indenture or the Notes, protest, notice and all demands whatsoever, (yii) as provided any right of subrogation, reimbursement, exoneration, contribution or indemnification in Section 1018(Crespect of any Obligations guaranteed hereby and (iii) any claim or Article Four other rights that it may now or hereafter acquire against the Issuers or any of the Subsidiaries that arise from the existence or performance of its Obligations under this Indenture (subject Subsidiary Guarantee, including, without limitation, any right to survival participate in any claim or remedy of certain obligations a Holder against the Issuers or any of CRLP as provided the Subsidiaries, whether or not such claim, remedy or right arises in Section 1018(C)equity or under contract, Article Four statute or common law, by any payment made hereunder or otherwise, and including, without limitation, the next succeeding paragraph)right to take or receive from the Issuers or any of the Subsidiaries, directly or indirectly, in cash or other property, by setoff or in any other manner, payment on account of such claim or other rights. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership Issuers, any Subsidiary Guarantor, any other Subsidiary of the Issuers or CRLPany other obligor under this Indenture or the Notes, trustee, liquidator, or any trustee or other similar official acting in relation to either the Operating Partnership or CRLPofficial, any amount paid by the Operating Partnership (at Issuers, any time while a Subsidiary Guarantee was in effect with respect to Guarantor, any other Subsidiary of the Notes), Issuers or any amount paid by CRLP, other obligor under this Indenture or the Notes to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (xi) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article Five hereofSection 6.2 for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect as to the Issuers of the Subsidiary Guarantee ObligationsObligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of any such obligations those Obligations as provided in Article Five hereofSection 6.2, the Subsidiary Guarantee those Obligations (whether or not due and payable) shall will forthwith become due and payable by CRLP each of the Subsidiary Guarantors for the purpose of the this Subsidiary Guarantee.
Appears in 1 contract
Samples: Indenture (Majestic Star Casino LLC)
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are authenticated by the Trustee and delivered by the Trustee or the Operating Partnership that: (ia) the principal of, and premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due, whether at Stated Maturity, upon acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, interest on overdue principal of, and overdue premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall be duly and punctually paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption or otherwise, or duly and punctually performed, as the case may be, in accordance with the terms of the extension or renewal, subject, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectively, the “Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article SeventeenTen, CRLP each Subsidiary Guarantor hereby agreesjointly and severally unconditionally guarantees, to the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be unconditionalon an unsubordinated unsecured basis, irrespective of (i) the validity, regularity or validity and enforceability of the Notes or of this Indenture, the Notes or the obligations of the Company or any other Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder or (ii) the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense default of CRLP. CRLP hereby waives a Subsidiary Guarantor, that:
(1) the principal of, premium, if any, interest and relinquishesdefaulted interest with respect to the Notes shall be duly and punctually paid in full when due, whether at maturity, by acceleration or otherwise, and interest on the overdue principal and (to the extent permitted by applicable law: ) interest or defaulted interest with respect to the Notes and all other obligations of the Company or any Subsidiary Guarantor to the Holders or the Trustee hereunder or thereunder and all other obligations under the Indenture shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and thereof, and
(a2) in case of any right to require extension of time of payment or renewal of the TrusteeNotes or any of such other obligations, the Holders same shall be promptly paid in full when due or performed in accordance with the terms of Notes the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed, or failing performance of any other obligation of the Company to the Holders, for whatever reason, each Subsidiary Guarantor shall be obligated to pay, or to perform or cause the performance of, the same immediately. An Event of Default under the Indenture or the Operating Partnership (each, a “Notes shall constitute an event of default under the Subsidiary Guarantee Benefited Party”) and shall entitle the Holders or the Trustee to proceed against accelerate the Operating Partnership or any other Person or obligations of the Subsidiary Guarantors hereunder in the same manner and to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; the same extent as the obligations of the Company.
(b) any defense that may arise Each Subsidiary Guarantor, by reason execution of its Subsidiary Guarantee, waives the incapacity, lack benefit of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand for payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other covenant that such Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except by complete performance of the obligations contained in the Indenture and such Subsidiary Guarantee.
(xc) by The Subsidiary Guarantee is a guarantee of payment and performance in full not of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)collection. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership Company or CRLPto any Subsidiary Guarantor, or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPsuch Subsidiary Guarantor, any amount paid by the Operating Partnership (at any time while a Company or such Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, Guarantor to the Trustee or such Holder in respect of the NotesHolder, the Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (xi) subject to this Article Ten, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereofSix for the purposes of the Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (yii) in the event of any acceleration of any such obligations as provided in Article Five hereofSix, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP such Subsidiary Guarantor for the purpose of the its Subsidiary Guarantee.
(d) The Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(e) No shareholder, partner, manager, member, director, officer, employee, agent or incorporator, past, present or future, of any Subsidiary Guarantor, as such, shall have any personal liability under the Subsidiary Guarantee of such Subsidiary Guarantor by reason of his, her or its status as such partner, manager, member shareholder, director, officer, employee, agent or incorporator.
Appears in 1 contract
Samples: Indenture (Advance Auto Parts Inc)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 11, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject severally (with Holdings with respect to the provisions of this Article SeventeenHoldings Guarantee), CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (ia) the principal of, and premium, if any, of and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantee Obligations”)Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. “Subject to the provisions of this Article Seventeen, CRLP The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the Subsidiary Guarantee of the Notesthis Note Guarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees.
Appears in 1 contract
Samples: Indenture (Amsc Acquisition Co Inc)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 12, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Twenty-Third Supplemental Indenture, the Notes or the Operating Partnership obligations of the Issuer hereunder or thereunder, that: (ia) the principal of, and premiuminterest, if any, and interest on, premium on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Issuer to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) or thereunder shall be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Twenty-Third Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipIssuer, any right to require a proceeding first against the Operating Partnership Issuer, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and this Twenty-Third Supplemental Indenture. Each Subsidiary Guarantor also agrees to pay any and all other costs and expenses provided for (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)12.01. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPIssuer, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Issuer or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees. Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary 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. In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Subsidiary Guarantee issued by any Subsidiary Guarantor shall be a senior obligation of such Subsidiary Guarantor and will be secured by a first-priority lien on the Non-Receivables Collateral (other than certain pledged stock as described in Section 11.04(c)) and by a second-priority lien on the Shared Receivables Collateral. The Subsidiary Guarantees shall rank equally in right of payment with all existing and future Senior Indebtedness of the Subsidiary Guarantor but, to the extent of the value of the Collateral, will be effectively senior to all of the Subsidiary Guarantor’s unsecured Senior Indebtedness and Junior Lien Obligations and, to the extent of the Shared Receivables Collateral, will be effectively subordinated to the Subsidiary Guarantor’s Obligations under the ABL Facility and any future ABL Obligations. The Subsidiary Guarantees will be senior in right of payment to all existing and future Subordinated Indebtedness of each Subsidiary Guarantor. The Notes will be structurally subordinated to Indebtedness and other liabilities of Subsidiaries of the Issuer that do not Guarantee the Notes. Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. As used in this Section 12.01, the term “Trustee” shall also include each of the Paying Agent, Registrar and Transfer Agent, as applicable. Prior to a Ratings Event, within 30 days of any Restricted Subsidiary becoming a guarantor under the General Credit Facility, such Restricted Subsidiary shall become a guarantor of the Notes by executing and delivering a Supplemental Indenture in the form of Exhibit B hereto.
Appears in 1 contract
Subsidiary Guarantee. “The provisions Each of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (ia) the principal of, and premium, if any, of and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors will be jointly and severally obligated to pay the same immediately. “Subject to the provisions of this Article Seventeen, CRLP The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Subsidiary Guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, covenant that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership Company or CRLPSubsidiary Guarantors, or any trustee Custodian, Trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPSubsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, such entity to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 for the purposes of the Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five hereof6, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.
Appears in 1 contract
Samples: Indenture (Delta Financial Corp)
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject Subject to the provisions of this Article SeventeenX, CRLP hereby fully the Guarantor unconditionally and unconditionally irrevocably guarantees to each Holder of Notes that are authenticated by Lender and the Trustee Agent and delivered by the Trustee or the Operating Partnership their respective successors and assigns, that: (i) the principal of, and premium, if any, and interest on, on the Notes shall Advances and any promissory note issued hereunder will be duly and punctually paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon by redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on overdue principal ofprincipal, and overdue premium, if any, and (to the extent permitted by law) interest onon any interest, if any, on the Notes shall be duly Advances, any promissory note issued hereunder and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes Lenders or the Agent hereunder (including fees and (solely insofar as it relates to the Notesexpenses) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may befull, all in accordance with the terms hereof hereof; and thereof, and, (ii) in case of any extension of time of payment or renewal of any Notes of the Advances or any of such other obligations, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, howeverby acceleration or otherwise. Failing payment when due of any amount so guaranteed, in each case referred to above in this paragraph, or failing performance of any other obligation of the Company to the limitations set forth in Section 1703 hereof (collectivelyLenders or the Agent, for whatever reason, the “Subsidiary Guarantor will be obligated to pay, or to perform or to cause the performance of, the same immediately. An Event of Default under this Agreement shall constitute an event of default under this Guarantee, and shall entitle the Lenders to accelerate the obligations of the Guarantor under this Guarantee Obligations”). “Subject in the same manner and to the provisions of this Article Seventeen, CRLP hereby agrees, to same extent as the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be unconditional, irrespective obligations of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: Company.
(a) any right to require the TrusteeAgent, the Holders of Notes Lenders or the Operating Partnership Company (each, a “Subsidiary Guarantee Benefited "Benefitted Party”") to proceed against the Operating Partnership Company or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Benefitted Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s secured party's power before proceeding against CRLPthe Guarantor; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Benefitted Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this IndentureAgreement), including but not limited to notice of the existence, creation 55 60 or incurring of any new or additional indebtedness Debt or obligation or of any action or non-action on the part of CRLPthe Guarantor, the Operating PartnershipCompany, any other Subsidiary Guarantee Benefited Party or Benefitted Party, any creditor of CRLP or the Operating Partnership Guarantor, the Company or on the part of any other Person whomsoever in connection with any obligations the performance of which are hereby guaranteedguaranteed under this Guarantee; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Benefitted Party, including but not limited to an election to proceed against CRLP the Guarantor for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Benefitted Party’s election 's election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP The Guarantor hereby covenants, to the extent permitted by applicable law, covenants that the Subsidiary this Guarantee of the Notes shall will not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligationsprincipal, including the payment in full of the principal of, and premium, if any, and interest on, on the Notes Advances and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four Agreement. This is a Guarantee of this Indenture (subject to survival payment and not of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)collectibility. “If any Holder of Notes Lender or the Trustee Agent is required by any court or otherwise to return to either the Operating Partnership Company or CRLPthe Guarantor, or any trustee or similar official acting in relation to either the Operating Partnership Company or CRLPthe Guarantor, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect Company or the Guarantor to the Notes), or any amount paid by CRLP, to the Trustee Agent or such Holder in respect of the NotesLender, the Subsidiary Guarantee of the Notesthis Guarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, The Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders of Notes Lenders or the Agent in respect of any Subsidiary obligations guaranteed under this Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligationsobligations guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, The Guarantor agrees that, as between it, on the one hand, and the Holders of Notes Lenders and the TrusteeAgent, on the other hand, (x) the maturity of the obligations guaranteed hereby under this Guarantee may be accelerated as provided in Article Five VI hereof for the purposes hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any acceleration of any such obligations as provided in Article Five VI hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP such Guarantor for the purpose of the Subsidiary this Guarantee.
Appears in 1 contract
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. (A) By its execution of this Indenture (including by any such amended or supplemental indenture pursuant to Section 8.01(B)), each Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged Guarantor acknowledges and agreed agrees that it receives substantial benefits from the Operating Partnership and the Guarantor Company and that CRLP such Subsidiary Guarantor is providing its Subsidiary Guarantees Guarantee for good and valuable consideration, including, without limitation, including such substantial benefits. Accordingly, subject Subject to the provisions of this Article Seventeen11, CRLP hereby each of the Subsidiary Guarantors, jointly and severally, fully and unconditionally guarantees unconditionally, guarantees, on a senior basis, to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (i) the principal of, premium, if any, interest on, and any Conversion Consideration for, the Notes will be promptly paid or delivered in full when due, whether at the Maturity Date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest on, and any Conversion Consideration for, the Notes shall be duly and punctually paid in full when due, whether at Stated Maturity, upon acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, interest on overdue principal of, and overdue premiumNotes, if any, if lawful (subject in all cases to any applicable grace period provided herein), and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid or delivered in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at the Maturity Date, howeverby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, in each case referred the Subsidiary Guarantors shall be jointly and severally obligated to above in pay the same immediately. Each Subsidiary Guarantor agrees that this paragraphis a guarantee of payment and not a guarantee of collection.
(B) The Subsidiary Guarantors agree that, to the limitations set forth in Section 1703 hereof (collectively, the “Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, to the maximum extent permitted by under applicable law, that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture or the obligations of this Indenturethe Company hereunder or thereunder, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any Guarantor other remedy than payment in any full of all obligations hereunder and thereunder. Each Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) Guarantor waives diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by complete payment and or performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or in accordance with their terms.
(yC) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either of the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount or consideration paid or delivered by the Operating Partnership (at any time while Company or a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, Guarantor to the Trustee or such Holder in respect of the NotesHolder, the Subsidiary Guarantee of the Notesthis Guarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause .
(ivD) of the last paragraph of Section 1018(C), of CRLP’s Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation subrogation, reimbursement or contribution in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof7 for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five hereof7, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Guarantee. Each Subsidiary Guarantor that makes a payment or distribution under its Guarantee shall have the right to seek contribution from any non-paying Subsidiary Guarantor, in a pro rata amount based on the net assets of each Subsidiary Guarantor determined in accordance with GAAP, so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Subsidiary Guarantee. “The provisions Subject to Section 11.06 hereof, each of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenturethe Guaranteeing Subsidiaries hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee or and to the Operating Partnership Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes and the Obligations of the Company hereunder and thereunder, that: (ia) the principal of, and premium, if any, interest and interest onLiquidated Damages, if any, on the Notes shall will be duly and punctually promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; , and interest on the overdue principal, premium, if any, (ii) to the extent permitted by applicable law, ) interest on overdue principal of, and overdue premiumany interest, if any, and interest onLiquidated Damages, if any, on the Notes shall Notes, and all other payment Obligations of the Company to the Holders or the Trustee hereunder or thereunder will be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectsubject to any applicable grace period, howeverwhether at stated maturity, by acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason the Guaranteeing Subsidiaries will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the Obligations of the Guaranteeing Subsidiaries hereunder in each case referred to above in this paragraph, the same manner and to the limitations set forth in Section 1703 hereof (collectively, same extent as the “Subsidiary Guarantee Obligations”)Obligations of the Company. “Subject to the provisions of this Article Seventeen, CRLP The Guaranteeing Subsidiaries hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Guaranteeing Subsidiary. CRLP Each Guaranteeing Subsidiary hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, Obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Guaranteeing Subsidiaries, or any trustee Note Custodian, Trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Guaranteeing Subsidiaries, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Guaranteeing Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders of Notes in respect of any Obligations guaranteed hereby. Each Guaranteeing Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, further agrees that, as between itthe Guaranteeing Subsidiaries, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee ObligationsObligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations Obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee such Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Guaranteeing Subsidiaries for the purpose of this Subsidiary Guarantee. The Guaranteeing Subsidiaries shall have the right to seek contribution from any non-paying Guaranteeing Subsidiary so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees.
Appears in 1 contract
Samples: Indenture (Advanced Medical Inc)
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution If the Board Resolution or supplemental indenture establishing the terms of any Security provides that such Security is to be guaranteed by one or more Subsidiary Guarantors, each of such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are such Security authenticated by the Trustee and delivered by the Trustee or Trustee, the Operating Partnership that: (i) due and punctual payment of the principal of, of (and premium, if any, ) and interest on, the Notes shall be duly on such Security when and punctually paid in full when due, whether at Stated Maturity, upon acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, interest on overdue principal of, and overdue premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall be duly become due and punctually paid in full when duepayable, whether at the Stated Maturity, by acceleration, call for redemption redemption, offer to purchase or otherwise, or duly and punctually performed, as the case may be, in accordance with the terms of the extension or renewal, subject, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectively, the “Subsidiary Guarantee Obligations”). “Subject to the provisions such Security and of this Article SeventeenIndenture. In case of the failure of the Issuers punctually to make any such payment, CRLP each Subsidiary Guarantor hereby, jointly and severally, agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at the Stated Maturity or by acceleration, call for redemption, offer to purchase or otherwise, and as if such payment were made by the Issuers. If the Board Resolution or supplemental indenture establishing the terms of any Security provides that such Security is to be guaranteed by one or more Subsidiary Guarantors, each of such Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, jointly and severally agrees that its Subsidiary Guarantee obligations hereunder shall be absolute, unconditional, irrespective of of, and shall be unaffected by, the validity, regularity or enforceability of the Notes such Security or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce the same or any release, amendment, waiver or indulgence granted to an Issuer or any guarantor or any consent to departure from any requirement of any other circumstance guarantee of all or any of the Securities or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of CRLPa surety or guarantor. CRLP Each of the Subsidiary Guarantors hereby waives and relinquishesthe benefits of diligence, to presentment, demand for payment, any requirement that the extent permitted by applicable law: (a) Trustee or any of the Holders protect, secure, perfect or insure any security interest in or other lien on any property subject thereto or exhaust any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed take any action against the Operating Partnership an Issuer or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacitycollateral, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating Partnershipan Issuer, any right to require a proceeding first against the Operating Partnership and any demandan Issuer, protest or notice with respect to such Security or the indebtedness evidenced thereby and notice all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged in respect of such Security except by complete performance of the obligations contained in such Security and in such Subsidiary Guarantee. Each Subsidiary Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders The indebtedness evidenced by the Subsidiary Guarantees is, to the extent provided in this Indenture, subordinate and subject in right of payment to the prior payment in full of all Senior Debt and the Subsidiary Guarantees are issued subject to the provisions of this Indenture with respect thereto. Each Holder of such Security, by accepting the same, will be deemed to have (a) agreed to and be bound by such provisions, (b) authorized and directed the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination so provided and (c) appointed the Trustee his attorney-in-fact for any and all such purposes. Each Subsidiary Guarantor shall be subrogated to all rights of the Holders of the Securities upon which its Guarantee is endorsed against the Issuers in respect of any kind (except as expressly required amounts paid by such Subsidiary Guarantor on account of such Security pursuant to the provisions of its Subsidiary Guarantee or this Indenture); provided, including but not limited however, that no Subsidiary Guarantor shall be entitled to notice enforce or to receive any payments arising out of, or based upon, such right of subrogation until the existenceprincipal of (and premium, creation if any) and interest on all Securities issued hereunder shall have been paid in full. Each Subsidiary Guarantor that makes or incurring is required to make any payment in respect of any new or additional indebtedness or obligation or of any action or non-action on its Subsidiary Guarantee shall be entitled to seek contribution from the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of Guarantors which are hereby guaranteed; (d) any defense based upon an election of remedies by a also obligated under such Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law; provided, however, that the no Subsidiary Guarantee Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of contribution until the principal of, of (and premium, if any, ) and interest on, the Notes and on all other costs and expenses provided for under this Indenture or (y) as provided Securities issued hereunder shall have been paid in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)full. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership (at any time while a Each Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, to the Trustee or such Holder in respect of the Notes, the Subsidiary Guarantee of the Notes, to the extent theretofore discharged or released, shall, to the extent permitted by applicable law, be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agreeseffect and continue to be effective should any petition be filed by or against an Issuer for liquidation or reorganization, should an Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any part of such Issuer's assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any Holder of the Securities, whether as a "voidable preference," "fraudulent transfer," or otherwise, all as though such payment or performance had not been made. In the event that it shall not be entitled to any right of subrogation in relation to payment, or any part thereof, is rescinded, reduced, restored or returned, the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agreesSecurities shall, to the fullest extent permitted by applicable law, thatbe reinstated and deemed reduced only by such amount paid and not so rescinded, as between itreduced, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof, notwithstanding any stay, injunction restored or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, and (y) in the event of any acceleration of any such obligations as provided in Article Five hereof, the Subsidiary Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP for the purpose of the Subsidiary Guaranteereturned.
Appears in 1 contract
Samples: Indenture (Iridium Facilities Corp)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 12, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Twenty-Seventh Supplemental Indenture, the Notes or the Operating Partnership obligations of the Issuer hereunder or thereunder, that: (ia) the principal of, and premiuminterest, if any, and interest on, premium on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Issuer to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) or thereunder shall be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Twenty-Seventh Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipIssuer, any right to require a proceeding first against the Operating Partnership Issuer, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and this Twenty-Seventh Supplemental Indenture. Each Subsidiary Guarantor also agrees to pay any and all other costs and expenses provided for (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)12.01. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPIssuer, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Issuer or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees. Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary 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. In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Subsidiary Guarantee issued by any Subsidiary Guarantor shall be a senior obligation of such Subsidiary Guarantor and will be secured by a first-priority lien on the Non-Receivables Collateral (other than certain pledged stock as described in Section 11.04(c)) and by a second-priority lien on the Shared Receivables Collateral. The Subsidiary Guarantees shall rank equally in right of payment with all existing and future Senior Indebtedness of the Subsidiary Guarantor but, to the extent of the value of the Collateral, will be effectively senior to all of the Subsidiary Guarantor’s unsecured Senior Indebtedness and Junior Lien Obligations and, to the extent of the Shared Receivables Collateral, will be effectively subordinated to the Subsidiary Guarantor’s Obligations under the ABL Facility and any future ABL Obligations. The Subsidiary Guarantees will be senior in right of payment to all existing and future Subordinated Indebtedness of each Subsidiary Guarantor. The Notes will be structurally subordinated to Indebtedness and other liabilities of Subsidiaries of the Issuer that do not Guarantee the Notes. Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. As used in this Section 12.01, the term “Trustee” shall also include each of the Paying Agent, Registrar and Transfer Agent, as applicable. Prior to a Ratings Event, within 30 days of any Restricted Subsidiary becoming a guarantor under the General Credit Facility, such Restricted Subsidiary shall become a guarantor of the Notes by executing and delivering a Supplemental Indenture in the form of Exhibit B hereto.
Appears in 1 contract
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Subject to the limitations set forth in the Indenture, CRLP will be deemed the Guarantors (as defined in the Indenture referred to have acknowledged in this Note and agreed that it receives substantial benefits from each hereinafter referred to as a "Guarantor," which term includes any successor or additional Guarantor under the Operating Partnership Indenture) have, jointly and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully irrevocably and unconditionally guarantees to each Holder of Notes that are authenticated by the Trustee and delivered by the Trustee or the Operating Partnership that: guaranteed (ia) the due and punctual payment of the principal of, (and premium, if any, ) of and interest on(including Additional Amounts, if any and Special Interest, if any) on the Notes shall be duly and punctually paid in full when dueNotes, whether at Stated Maturity, upon by acceleration, call for redemption, upon redemption a Change of Control Offer, Asset Sale Offer, offer to purchase upon a Termination of Trading, purchase or otherwise; , (iib) to the extent permitted by applicable law, due and punctual payment of interest on the overdue principal of, of and overdue premiuminterest (including Additional Amounts, if any, and interest onSpecial Interest, if any) on the Notes shall be duly Notes, if any, to the extent lawful, (c) the due and punctually paid in full when due; and (iii) punctual performance of all other obligations of the Operating Partnership Company and the Guarantors to the Holders of Notes under the Indenture, the Notes, the Collateral Documents and the Senior Note Collateral Documents and (solely insofar as it relates to the Notesd) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, howeverby acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, offer to purchase upon a Termination of Trading, purchase or otherwise. Capitalized terms used herein shall have the meanings assigned to them in the Indenture unless otherwise indicated. Payment on each case referred Note is guaranteed, jointly and severally, by the Guarantors pursuant to above in this paragraph, to Article X of the limitations set forth in Section 1703 hereof (collectively, the “Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, Indenture on a senior subordinated basis to the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be unconditional, irrespective provided in the Indenture and reference is made to such Indenture for the precise terms of the validity, regularity or enforceability Guarantees and such subordination. The obligations of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, each Guarantor are limited to the extent permitted by applicable law: lesser of (a) any right an amount equal to require such Guarantor's Adjusted Net Assets as of the Trustee, date of the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; and (b) the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor (including, if applicable, its obligations under the Senior Notes) and after giving effect to any defense that may arise collections from or payments made by reason of the incapacity, lack of authority, death or disability on behalf of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, to the Trustee or such Holder Guarantor in respect of the Notes, the Subsidiary obligations of such other Guarantor under its Guarantee of the Notes, to the extent theretofore discharged or released, shall, to the extent permitted by applicable law, be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other contribution obligations under this Indenture with respect to the Notes and remain Indenture, result in full force and effectthe obligations of such Guarantor under the Guarantee not constituting a 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. CRLP agrees, to the extent permitted by applicable law, Each Guarantor that it makes a payment or distribution under a Guarantee shall not be entitled to any right a contribution from each other Guarantor in a pro rata amount based on the Adjusted Net Assets of subrogation in relation each Guarantor. Certain of the Guarantors may be released from their Guarantees upon the terms and subject to the Holders of Notes conditions provided in respect of any Subsidiary the Indenture. 20 The Guarantee Obligations until payment in full shall be binding upon each Guarantor and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, its successors and assigns and shall inure to the extent permitted by applicable law, that, as between it, on benefit of the one hand, Trustee and the Holders of Notes and the Trusteeand, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, and (y) in the event of any acceleration transfer or assignment of rights by any such obligations as provided in Article Five hereofHolder or the Trustee, the Subsidiary Guarantee Obligations rights and privileges herein conferred upon that party shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions hereof and in the Indenture. NWE CAPITAL (whether or not due and payableCYPRUS) LIMITED By: /s/ Clayxxx X. Xxxxx _____________________________________ PLD ASSET LEASING LIMITED By: /s/ Clayxxx X. Xxxxx _____________________________________ PLD CAPITAL LIMITED By: /s/ Clayxxx X. Xxxxx _____________________________________ BALTIC COMMUNICATIONS LIMITED By: /s/ Clayxxx X. Xxxxx _____________________________________ WIRELESS TECHNOLOGY CORPORATIONS LIMITED By: /s/ Jamex X.X. Xxxx _____________________________________ SCHEDULE OF PRINCIPAL AMOUNT The initial principal amount at maturity of this Note shall forthwith become due and payable by CRLP for be $26,500,000. The following decreases/increase in the purpose principal amount at maturity of the Subsidiary Guarantee.this Note have been made: TOTAL PRINCIPAL AMOUNT AT NOTATION DECREASE IN INCREASE IN MATURITY MADE BY DATE OF PRINCIPAL PRINCIPAL FOLLOWING SUCH OR ON DECREASE/ AMOUNT AT AMOUNT AT DECREASE/ BEHALF OF INCREASE MATURITY MATURITY INCREASE TRUSTEE -------- -------- -------- -------- ------- ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------
Appears in 1 contract
Subsidiary Guarantee. “(a) As of the Issue Date, the Notes will not be guaranteed by any of the Company’s Subsidiaries. The following provisions of this Article Seventeen Ten shall not become effective until such time as CRLP shall have entered into apply to any Restricted Subsidiary that becomes a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018Guarantor after the Issue Date. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed Subject to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article SeventeenTen, CRLP hereby each of the Subsidiary Guarantors, jointly and severally, fully and unconditionally guarantees unconditionally, guarantees, on a senior unsecured basis, to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (i) the principal of, and premium, if any, and interest on, on each series of the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, and overdue premium, if any, and interest onon the Notes, if any, if lawful (subject in all cases to any applicable grace period provided herein), and all other monetary Obligations of the Notes shall Company to the Holders or the Trustee hereunder or thereunder will be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, howeverby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, in each case referred the Subsidiary Guarantors shall be jointly and severally obligated to above in pay the same immediately. Each Subsidiary Guarantor agrees that this paragraphis a guarantee of payment and not a guarantee of collection.
(b) The Subsidiary Guarantors agree that, to the limitations set forth in Section 1703 hereof (collectively, the “Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, to the maximum extent permitted by under applicable law, that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or Guarantor. Subject to pursue any other remedy in any Section 6.06, each Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) Guarantor waives diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or Indenture.
(yc) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either of the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the Subsidiary Guarantee of the Notesthis Guarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause .
(ivd) of the last paragraph of Section 1018(C), of CRLP’s Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereofSix for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five hereofSix, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Guarantee. Each Subsidiary Guarantor that makes a payment or distribution under its Guarantee shall have the right to seek contribution from any non-paying Subsidiary Guarantor, in a pro rata amount based on the net assets of each Subsidiary Guarantor determined in accordance with GAAP, so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
(e) In respect to its obligations under its Guarantee, each Subsidiary Guarantor agrees to be bound to, and hereby covenants, with respect to itself, the covenant set forth in Section 4.06.
Appears in 1 contract
Samples: Indenture (SM Energy Co)
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees guarantees, on an unsubordinated basis, as primary obligor and not merely as surety, to each Holder of Notes that are authenticated by the Securities and the Trustee the full and delivered by the Trustee or the Operating Partnership that: (i) the principal of, and premium, if any, and interest on, the Notes shall be duly and punctually paid in full punctual payment when due, whether at Stated Maturitymaturity, upon acceleration, upon redemption by acceleration or otherwise; , of the principal of and interest, including any Additional Interest, on the Securities and all other obligations and liabilities of the Company under this Indenture (iiincluding without limitation interest (including any Additional Interest) accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) (all the foregoing being hereinafter collectively called the “Obligations”). The Subsidiary Guarantor further agrees (to the extent permitted by applicable law) that the Obligations may be extended or renewed, interest on overdue principal ofin whole or in part, without notice or further assent from it, and overdue premiumthat it will remain bound under this Article 9 notwithstanding any extension or renewal of any Obligation. The Subsidiary Guarantor waives presentation to, if any, demand of payment from and interest on, protest to the Notes shall be duly Company of any of the Obligations and punctually paid in full when due; and (iii) all other also waives notice of protest for nonpayment. The Subsidiary Guarantor waives notice of any Default under the Securities or the Obligations. The obligations of the Operating Partnership Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Obligations or any of them; or (e) any change in the ownership of the Company. The Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Obligations. The obligations of the Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full or pursuant to Sections 9.02 and 9.03 hereof), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever (other than payment of the Obligations in full or pursuant to Sections 9.02 and 9.03 hereof) or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Subsidiary Guarantor herein shall not be (to the Holders extent permitted by law) discharged or impaired or otherwise affected by the failure of Notes and (solely insofar any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any Default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of the Subsidiary Guarantor or would otherwise operate as it relates to a discharge of the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) Subsidiary Guarantor as a matter of law or equity. The Subsidiary Guarantor agrees that its Subsidiary Guarantee herein shall be duly and punctually paid remain in full when due force and effect until payment in full of all the Obligations or duly and punctually performeduntil such Subsidiary Guarantor is released from its Subsidiary Guarantee upon the merger or the sale of all the Common Stock or assets of the Subsidiary Guarantor in compliance with Section 9.02, or upon its release from the Subsidiary Guarantee pursuant to Section 9.03. The Subsidiary Guarantor further agrees that unless its Subsidiary Guarantee has been released pursuant to Section 9.02 or Section 9.03, its Subsidiary Guarantee herein shall continue to be effective or be reinstated, as the case may be, all in accordance with the terms hereof and if at any time payment, or any part thereof, andof principal of or interest (including any Additional Interest), on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in case limitation of any extension other right which any Holder has at law or in equity against the Subsidiary Guarantor by virtue hereof, upon the failure of time of payment or renewal of any Notes or the Company to pay any of such other obligations, the Obligations when and as the same shall be duly and punctually paid in full when become due, whether at the Stated Maturitymaturity, by acceleration, call for redemption acceleration or otherwise, the Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or duly and punctually performed, as the case may because to be paid, in accordance with the terms of the extension or renewal, subject, however, in each case referred to above in this paragraphcash, to the limitations set forth in Section 1703 hereof (collectively, the “Subsidiary Guarantee Obligations”). “Subject Holders an amount equal to the provisions sum of this Article Seventeen(i) the unpaid amount of such Obligations then due and owing and (ii) without duplication of any amounts included in the preceding clause (i), CRLP hereby agrees, accrued and unpaid interest (including any Additional Interest) on such Obligations then due and owing (but only to the extent permitted not prohibited by applicable law, that its Subsidiary Guarantee hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership (at any time while a The Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, to the Trustee or such Holder in respect of the Notes, the Subsidiary Guarantee of the Notes, to the extent theretofore discharged or released, shall, to the extent permitted by applicable law, be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantor, on the one hand, and the Holders of Notes and the TrusteeHolders, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article Five hereofthis Indenture for the purposes of its Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of any such obligations as provided in Article Five hereofObligations, the Subsidiary Guarantee such Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantor for the purpose purposes of the this Subsidiary Guarantee. The Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee in enforcing any rights under this Section 9.01.
Appears in 1 contract
Samples: Indenture (Newmont Mining Corp /De/)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 12, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Second Supplemental Indenture, the Notes or the Operating Partnership obligations of the Issuer hereunder or thereunder, that: (ia) the principal of, and premiuminterest, if any, and interest on, premium on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Issuer to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) or thereunder shall be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Second Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipIssuer, any right to require a proceeding first against the Operating Partnership Issuer, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and this Second Supplemental Indenture. Each Subsidiary Guarantor also agrees to pay any and all other costs and expenses provided for (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)12.01. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPIssuer, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Issuer or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of the Subsidiary Guarantee.this Subsidiary
Appears in 1 contract
Subsidiary Guarantee. “The provisions of (a) Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture10, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the each Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: :
(i1) the principal of, premium and premiumSpecial Interest, if any, and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, ; and,
(2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, howeverby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, in each case referred Guarantor will be obligated to above in pay the same immediately. Each Guarantor agrees that this paragraph, to the limitations set forth in Section 1703 hereof is a guarantee of payment and not a guarantee of collection.
(collectively, the “Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP b) Each Guarantor hereby agrees, to the extent permitted by applicable law, agrees that its Subsidiary Guarantee obligations hereunder shall be are unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or Indenture.
(yc) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, a Guarantor or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPsuch Guarantor, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, will be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause .
(ivd) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Each Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such Subsidiary Guarantee Obligationsobligations guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, Each Guarantor further agrees that, as between itsuch Guarantor, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y2) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall will forthwith become due and payable by CRLP such Guarantor for the purpose of the this Subsidiary Guarantee.
Appears in 1 contract
Samples: Indenture (Georgia Pacific Corp)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 12, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Tenth Supplemental Indenture, the Notes or the Operating Partnership obligations of the Issuer hereunder or thereunder, that: (ia) the principal of, and premiuminterest, if any, and interest on, premium on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Issuer to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) or thereunder shall be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Tenth Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipIssuer, any right to require a proceeding first against the Operating Partnership Issuer, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and this Tenth Supplemental Indenture. Each Subsidiary Guarantor also agrees to pay any and all other costs and expenses provided for (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)12.01. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPIssuer, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Issuer or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees. Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary 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. In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Subsidiary Guarantee issued by any Subsidiary Guarantor shall be a senior obligation of such Subsidiary Guarantor and will be secured by a first-priority lien on the Non-Receivables Collateral and by a second-priority lien on the Shared Receivables Collateral. The Subsidiary Guarantees shall rank equally in right of payment with all existing and future Senior Indebtedness of the Subsidiary Guarantor but, to the extent of the value of the Collateral, will be effectively senior to all of the Subsidiary Guarantor’s unsecured Senior Indebtedness and Junior Lien Obligations and, to the extent of the Shared Receivables Collateral, will be effectively subordinated to the Subsidiary Guarantor’s Obligations under the ABL Facility and any future ABL Obligations. The Subsidiary Guarantees will be senior in right of payment to all existing and future Subordinated Indebtedness of each Subsidiary Guarantor. The Notes will be structurally subordinated to Indebtedness and other liabilities of Subsidiaries of the Issuer that do not Guarantee the Notes. Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. As used in this Section 12.01, the term “Trustee” shall also include each of the Paying Agent, Registrar and Transfer Agent, as applicable.
Appears in 1 contract
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject Subject to the provisions of this Article SeventeenXII, CRLP each Subsidiary Guarantor hereby fully jointly and severally unconditionally guarantees to each Holder of Notes that are a Security authenticated by the Trustee 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 Operating Partnership obligations of the Company or any other Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder, that: (ia) the principal of, and premium, if any, and interest on, on the Notes shall Securities will be duly and punctually paid in full when due, whether at Stated Maturitymaturity, upon acceleration, upon redemption by acceleration or otherwise; , and interest on the overdue principal and (ii) to the extent permitted by applicable law, interest on overdue principal of, and overdue premium) interest, if any, on the Securities and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company or the Subsidiary Guarantors to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder or thereunder (including fees or expenses) and under all other obligations with respect to the Notes (including, without limitation, obligations to pay fees, expenses Securities and other charges) shall this Indenture will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsSecurities, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, howeverby acceleration or otherwise. Failing payment when due of any amount so guaranteed, in each case referred to above in this paragraph, or failing performance of any other obligation of the Company to the limitations set forth in Section 1703 hereof (collectivelyHolders, for whatever reason, each Subsidiary Guarantor will be obligated to pay, or to perform or cause the performance of, the “same immediately. An Event of Default under this Indenture or the Securities shall constitute an event of default under this Subsidiary Guarantee Obligations”). “Subject Guarantee, and shall entitle the Holders of Securities to accelerate the obligations of the Subsidiary Guarantors hereunder in the same manner and to the provisions same extent as the obligations of this Article Seventeen, CRLP the Company. Each of the Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agrees that its Subsidiary Guarantee obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder holder of Notes the Securities with respect to any provisions hereof or thereof, any release of any other Subsidiary Guarantor, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same same, whether or not a Subsidiary Guarantee is affixed to any particular Security, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each of the Subsidiary Guarantors hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders benefit of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other covenants that its Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal ofobligations contained in the Securities, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of and this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Subsidiary Guarantee. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership Company or CRLPto any Subsidiary Guarantor, or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPsuch Subsidiary Guarantor, any amount paid by the Operating Partnership (at any time while a Company or such Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, Guarantor to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between it, on the one hand, and the Holders of Notes Securities and the Trustee, on the other hand, (xa) subject to this Article XII, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereofVI hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (yb) in the event of any acceleration of any such obligations as provided in Article Five VI hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. This Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company's assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities, whether as a "voidable preference," "fraudulent transfer" or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. No stockholder, officer, director, employer or incorporator, past, present or future, or any Subsidiary Guarantor, as such, shall have any personal liability under this Subsidiary Guarantee by reason of his, her or its status as such stockholder, officer, director, employer or incorporator. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under this Subsidiary Guarantee. Each Subsidiary Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is the intention of all such parties that the guarantee by each Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. To effectuate the foregoing intention, the Holders and each Subsidiary Guarantor hereby irrevocably agrees that the obligations of each Subsidiary Guarantor under the Subsidiary GuaranteeGuarantees shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of each Subsidiary Guarantor (including, but not limited to, the Guarantor Senior Indebtedness of each Subsidiary Guarantor) re- xxxx in the obligations of each Subsidiary Guarantor under the Subsidiary Guarantees not constituting such fraudulent transfer or conveyance.
Appears in 1 contract
Samples: Indenture (Navistar Financial Corp)
Subsidiary Guarantee. “The provisions of (a) Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture10, CRLP will be deemed to have acknowledged each Guarantor hereby, jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (i) the principal of, and of premium, if any, and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, howeverby acceleration pursuant to Section 6.02 hereof or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, in each case referred Guarantor shall be jointly and severally obligated to above in pay the same immediately. Each Guarantor also agrees that this paragraph, is a guarantee of payment and not a guarantee of collection.
(b) Each Guarantor hereby agrees that its obligations with regard to the limitations set forth in Section 1703 hereof (collectively, the “such Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, to the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be joint and several, unconditional, irrespective of the validity, regularity validity or enforceability of the Notes or the obligations of the Company under this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry recovery of any judgment against the Operating PartnershipCompany or any other obligor with respect to this Indenture, the Notes or the obligations of the Company under this Indenture or the Notes, any action to enforce the same or any other circumstance circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of CRLPa Guarantor. CRLP hereby waives and relinquishesEach Guarantor further, to the extent permitted by law, waives and relinquishes all claims, rights and remedies accorded by applicable lawlaw to guarantors and agrees not to assert or take advantage of any such claims, rights or remedies, including but not limited to: (ai) any right to require any of the Trustee, the Holders of Notes or the Operating Partnership Company (each, each a “Subsidiary Guarantee Benefited Party”), as a condition of payment or performance by such Guarantor, to (A) to proceed against the Operating Partnership Company, any other guarantor (including any other Guarantor) of the obligations under the Subsidiary Guarantees or any other Person or to Person, (B) proceed against or exhaust any security held by a Subsidiary Guarantee from the Company, any such other guarantor or any other Person, (C) proceed against or have resort to any balance of any deposit account or credit on the books of any Benefited Party at in favor of the Company or any time other Person, or to (D) pursue any other remedy in the power of any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLPParty whatsoever; (bii) any defense that may arise arising by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy authority or any disability or other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution defense of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this Indenture), Company including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election on or arising out of remedies the lack of validity or the unenforceability of the obligations under the Subsidiary Guarantees or any agreement or instrument relating thereto or by a reason of the cessation of the liability of the Company from any cause other than payment in full of the obligations under the Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursementGuarantees; (eiii) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (giv) any defense based on upon any borrowing Benefited Party’s errors or grant omissions in the administration of a the obligations under the Subsidiary Guarantees, except behavior which amounts to bad faith; (v)(A) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (B) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (C) any rights to set-offs, recoupments and counterclaims and (D) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest under Section 364 (or lien or any successor provision property subject thereto; (vi) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Bankruptcy Code. CRLP hereby covenantsSubsidiary Guarantees, notices of default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification of the obligations under the Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (vii) to the extent permitted by under applicable law, the benefits of any “One Action” rule and (viii) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the Subsidiary Guarantees. Except to the extent expressly provided herein, including Section 8.02, 8.03 and 10.05, each Guarantor covenants that its Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance of the obligations contained in full of all its Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or Indenture.
(yc) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the any Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause .
(ivd) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such Subsidiary Guarantee Obligationsobligations guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (xi) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereofSection 6.02 hereof for the purposes of any Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, obligations guaranteed hereby and (yii) in the event of any declaration of acceleration of any such obligations as provided in Article Five Section 6.02 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Guarantors for the purpose of any such Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the applicable Subsidiary Guarantee.
Appears in 1 contract
Samples: Indenture (Pilgrims Pride Corp)
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject (a) Subject to the provisions of this Article SeventeenThirteen, CRLP each Restricted Subsidiary that hereafter becomes a Subsidiary Guarantor pursuant to Section 10.10, by its execution and delivery of its Subsidiary Guarantee in accordance with Sections 10.10 and 13.02, shall thereby agree as follows:
(i) Each such Subsidiary Guarantor hereby jointly and severally and fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective (to the fullest extent permitted by law) of (x) the validity and enforceability of this Indenture, the Notes or the Operating Partnership that: Obligations of the Company or any other Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder or (iy) the absence 157
(1) the principal of, and premium, if any, and interest on, the Notes shall will be duly and punctually paid in full when due, whether at Stated Maturitymaturity, upon acceleration, upon redemption by acceleration or otherwise; , and interest on the overdue principal and (ii) to the extent permitted by applicable law, interest on overdue principal of, and overdue premium) interest, if any, and interest on, on the Notes shall and all other Obligations of the Company or the Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder (including fees, expenses or other) will be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, in ; and (2)in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations with respect to the Notes, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption or otherwise, or duly and punctually performed, as the case may be, due in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, howeverby acceleration or otherwise. Failing payment when due of any amount so guaranteed, for whatever reason, each Subsidiary Guarantor will be obligated to pay, or to cause the payment of, the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under each Subsidiary Guarantee, and shall entitle the Holders of Notes to accelerate the obligations of the Subsidiary Guarantors under their respective Subsidiary Guarantees in each case referred to above in this paragraph, the same manner and to the limitations set forth in Section 1703 hereof same extent as the obligations of the Company.
(collectively, the “ii) Each of such Subsidiary Guarantee Obligations”). “Subject Guarantors hereby agrees (to the provisions of this Article Seventeen, CRLP hereby agrees, to the fullest extent permitted by applicable law, ) that its Subsidiary Guarantee obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder holder of the Notes with respect to any provisions hereof or thereof, any release of any other Subsidiary Guarantor, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same 158 same, whether or not a Subsidiary Guarantee is affixed to any particular Note, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each of such Subsidiary Guarantors hereby waives and relinquishes, (to the fullest extent permitted by applicable law: (a) any right to require the Trustee, the Holders benefit of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind covenants that (except as expressly required by this Indenture), including but not limited to notice of the existence, creation otherwise provided in Section 13.07 or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other its Subsidiary Guarantee) its Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided obligations contained in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, to the Trustee or such Holder in respect of the Notes, the Subsidiary Guarantee of the Notes, to the extent theretofore discharged or released, shall, to the extent permitted by applicable law, be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of and this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effectGuarantee. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all Each such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) 1)subject to this Article Thirteen, the maturity of the obligations guaranteed hereby may be accelerated as and to the extent provided in Article Five hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect hereof for the purposes of the this Subsidiary Guarantee ObligationsGuarantee, and (y) in 2)in the event of any acceleration of any such obligations as provided in Article Five hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP such Subsidiary Guarantor for the purpose of the its Subsidiary Guarantee.
(iii) Until terminated in accordance with Section 13.07 or its terms, the Subsidiary Guarantee of such Subsidiary Guarantor shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company's assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes, whether as a "voidable preference," "fraudulent transfer" or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(b) No stockholder, officer, director, employer, incorporator or controlling person, past, present or future, of any Subsidiary Guarantor, as such, shall have any personal liability under any Subsidiary Guarantee by reason of his, her or its status as such stockholder, officer, director, employer, incorporator or controlling person.
(c) Each Subsidiary Guarantor shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under its Subsidiary Guarantee.
(d) Notwithstanding any of the foregoing, each Subsidiary Guarantor's liability under its Subsidiary Guarantee shall be limited to the maximum amount that would not result in such Subsidiary Guarantee constituting a fraudulent conveyance or fraudulent transfer under applicable law.
Appears in 1 contract
Subsidiary Guarantee. “The provisions Subject to Section 10.06 hereof, each of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Senior Note authenticated and Indenture delivered by the Trustee and delivered by to the Trustee or and its successors and assigns, irrespective of the Operating Partnership validity and enforceability of this Indenture, the Senior Notes and the Obligations of the Company hereunder and thereunder, that: (ia) the principal of, and premium, if any, and interest on, on the Senior Notes shall will be duly and punctually promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; , and interest on the overdue principal, premium, if any, (ii) to the extent permitted by applicable law, ) and interest on overdue principal of, and overdue premiumany interest, if any, on the Senior Notes, and interest on, all other payment Obligations of the Notes shall Company to the Holders or the Trustee hereunder or thereunder will be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Senior Notes or any of such other obligationsObligations, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectsubject to any applicable grace period, howeverwhether at stated maturity, by acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Senior Notes shall constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the Obligations of the Subsidiary Guarantors hereunder in each case referred to above in this paragraph, the same manner and to the limitations set forth in Section 1703 hereof (collectively, same extent as the “Obligations of the Company. The Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Senior Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Subsidiary Guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, Obligations contained in the Senior Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors, or any trustee Senior Note Custodian, Trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), Company or any amount paid by CRLP, Subsidiary Guarantor to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders of Notes in respect of any Obligations guaranteed hereby. Each Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of its Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee ObligationsObligations guaranteed thereby, and (y) in the event of any declaration of acceleration of any such obligations Obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee such Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantor for the purpose of its Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.Guarantees. Indenture
Appears in 1 contract
Samples: Indenture (Goodman Conveyor Co)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 12, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Eighth Supplemental Indenture, the Notes or the Operating Partnership obligations of the Issuer hereunder or thereunder, that: (ia) the principal of, and premiuminterest, if any, and interest on, premium on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Issuer to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) or thereunder shall be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Eighth Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipIssuer, any right to require a proceeding first against the Operating Partnership Issuer, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and this Eighth Supplemental Indenture. Each Subsidiary Guarantor also agrees to pay any and all other costs and expenses provided for (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)12.01. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPIssuer, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Issuer or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees. Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary 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. In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Subsidiary Guarantee issued by any Subsidiary Guarantor shall be a senior obligation of such Subsidiary Guarantor and will be secured by a first-priority lien on the Non-Receivables Collateral and by a second-priority lien on the Shared Receivables Collateral. The Subsidiary Guarantees shall rank equally in right of payment with all existing and future Senior Indebtedness of the Subsidiary Guarantor but, to the extent of the value of the Collateral, will be effectively senior to all of the Subsidiary Guarantor’s unsecured Senior Indebtedness and Junior Lien Obligations and, to the extent of the Shared Receivables Collateral, will be effectively subordinated to the Subsidiary Guarantor’s Obligations under the ABL Facility and any future ABL Obligations. The Subsidiary Guarantees will be senior in right of payment to all existing and future Subordinated Indebtedness of each Subsidiary Guarantor. The Notes will be structurally subordinated to Indebtedness and other liabilities of Subsidiaries of the Issuer that do not Guarantee the Notes. Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. As used in this Section 12.01, the term “Trustee” shall also include each of the Paying Agent, Registrar and Transfer Agent, as applicable.
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Subsidiary Guarantee. “The provisions Subject to Section 10.06 of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental the Indenture, CRLP will be deemed to have acknowledged each Guarantor hereby, jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes and the Obligations of the Company under the Notes or under the Operating Partnership Indenture, that: (ia) the principal of, premium and premiuminterest, if any, and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; , and interest on overdue principal, premium, if any, (ii) to the extent permitted by applicable law, ) and interest on overdue principal of, and overdue premiumany interest, if any, and interest on, on the Notes shall and all other payment Obligations of the Company to the Holders or the Trustee under the Indenture or under the Notes will be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof thereof; and thereof, and, (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationspayment Obligations, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectsubject to any applicable grace period, howeverwhether at stated maturity, by acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under the Indenture or the Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders to accelerate the Obligations of the Guarantors hereunder in each case referred to above in this paragraph, the same manner and to the limitations set forth in Section 1703 hereof (collectively, same extent as the “Subsidiary Guarantee Obligations”)Obligations of the Company. “Subject to the provisions of this Article Seventeen, CRLP The Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Guarantor. CRLP Each Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, Obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Guarantors, or any trustee Note Custodian, Trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), Company or any amount paid by CRLP, Guarantor to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Each Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligationsguaranteed hereby. CRLP agrees, to the extent permitted by applicable law, Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (xa) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 of the Indenture for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee ObligationsObligations guaranteed thereby, and (yb) in the event of any declaration of acceleration of any such obligations Obligations as provided in Article Five hereof6 of the Indenture, the Subsidiary Guarantee such Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Guarantor for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees.
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Samples: Indenture (Saevik Shipping As)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 12, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Twenty-Eighth Supplemental Indenture, the Notes or the Operating Partnership obligations of the Issuer hereunder or thereunder, that: (ia) the principal of, and premiuminterest, if any, and interest on, premium on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Issuer to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) or thereunder shall be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Twenty-Eighth Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipIssuer, any right to require a proceeding first against the Operating Partnership Issuer, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and this Twenty-Eighth Supplemental Indenture. Each Subsidiary Guarantor also agrees to pay any and all other costs and expenses provided for (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)12.01. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPIssuer, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Issuer or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees. Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary 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. In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Subsidiary Guarantee issued by any Subsidiary Guarantor shall be a senior obligation of such Subsidiary Guarantor and will be secured by a first-priority lien on the Non-Receivables Collateral (other than certain pledged stock as described in Section 11.04(c)) and by a second-priority lien on the Shared Receivables Collateral. The Subsidiary Guarantees shall rank equally in right of payment with all existing and future Senior Indebtedness of the Subsidiary Guarantor but, to the extent of the value of the Collateral, will be effectively senior to all of the Subsidiary Guarantor’s unsecured Senior Indebtedness and Junior Lien Obligations and, to the extent of the Shared Receivables Collateral, will be effectively subordinated to the Subsidiary Guarantor’s Obligations under the ABL Facility and any future ABL Obligations. The Subsidiary Guarantees will be senior in right of payment to all existing and future Subordinated Indebtedness of each Subsidiary Guarantor. The Notes will be structurally subordinated to Indebtedness and other liabilities of Subsidiaries of the Issuer that do not Guarantee the Notes. Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. As used in this Section 12.01, the term “Trustee” shall also include each of the Paying Agent, Registrar and Transfer Agent, as applicable. Prior to a Ratings Event, within 30 days of any Restricted Subsidiary becoming a guarantor under the General Credit Facility, such Restricted Subsidiary shall become a guarantor of the Notes by executing and delivering a Supplemental Indenture in the form of Exhibit B hereto.
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Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into Guarantor, jointly and severally with any other Subsidiary Guarantor now existing or which may execute a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenturein the future, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the Operating Partnership obligations of the Company under the Indenture or the Notes, that: (ia) the principal principal, Redemption Price and Purchase Price of, and premiuminterest and Liquidated Damages, if any, and interest on, on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption redemption, repurchase or otherwise; , and (ii) to the extent permitted by applicable law, ) interest on the overdue principal principal, Redemption Price and Purchase Price of, and overdue premiuminterest and Liquidated Damages, if any, on the Notes, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Indenture or the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof of the Indenture and thereof, and, the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantor shall be obligated to pay the same immediately, whether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 6.2 of the Indenture. “Subject to the provisions The Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Guarantor hereby agrees, to the extent permitted by applicable law, agrees that its Subsidiary Guarantee obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this the Indenture, the absence of any action to enforce the same, any waiver or consent by the Trustee or any Holder of the Notes with respect to any provisions thereof, the entry recovery of any judgment against the Operating PartnershipCompany or any Subsidiary Guarantor, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP The Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany or any Subsidiary Guarantor, any right to require a proceeding first against the Operating Partnership Company or any Subsidiary Guarantor, protest, notice and any demandall demands whatsoever and covenants that, protest and notice of any kind (except as expressly required by set forth herein, this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership Company or CRLPany Subsidiary Guarantor, or any trustee Custodian, Trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPany Subsidiary Guarantor, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, The Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such Subsidiary Guarantee Obligationsobligations guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, The Guarantor further agrees that, as between itthe Guarantor, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article Five hereofVI of the Indenture for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, Obligations guaranteed hereby and (y) in the event of any declaration of acceleration of any such obligations Obligations as provided in Article Five hereofSection 6.2 of the Indenture, the Subsidiary Guarantee such Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Guarantor for the purpose of this Subsidiary Guarantee. The Guarantor shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders or the Trustee under this Subsidiary Guarantee.
Appears in 1 contract
Samples: Indenture (Commemorative Brands Inc)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 12, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Seventh Supplemental Indenture, the Notes or the Operating Partnership obligations of the Issuer hereunder or thereunder, that: (ia) the principal of, and premiuminterest, if any, and interest on, premium on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Issuer to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) or thereunder shall be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Seventh Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipIssuer, any right to require a proceeding first against the Operating Partnership Issuer, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and this Seventh Supplemental Indenture. Each Subsidiary Guarantor also agrees to pay any and all other costs and expenses provided for (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)12.01. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPIssuer, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Issuer or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees. Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary 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. In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Subsidiary Guarantee issued by any Subsidiary Guarantor shall be a senior obligation of such Subsidiary Guarantor and will be secured by a first-priority lien on the Non-Receivables Collateral and by a second-priority lien on the Shared Receivables Collateral. The Subsidiary Guarantees shall rank equally in right of payment with all existing and future Senior Indebtedness of the Subsidiary Guarantor but, to the extent of the value of the Collateral, will be effectively senior to all of the Subsidiary Guarantor’s unsecured Senior Indebtedness and Junior Lien Obligations and, to the extent of the Shared Receivables Collateral, will be effectively subordinated to the Subsidiary Guarantor’s Obligations under the ABL Facility and any future ABL Obligations. The Subsidiary Guarantees will be senior in right of payment to all existing and future Subordinated Indebtedness of each Subsidiary Guarantor. The Notes will be structurally subordinated to Indebtedness and other liabilities of Subsidiaries of the Issuer that do not Guarantee the Notes. Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. As used in this Section 12.01, the term “Trustee” shall also include each of the Paying Agent, Registrar and Transfer Agent, as applicable.
Appears in 1 contract
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into Twelve, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees on a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject senior secured basis with respect to the provisions of this Article SeventeenCollateral Guarantors and, CRLP hereby fully and unconditionally guarantees on a senior unsecured basis with respect to the Non-Collateral Guarantors, to each Holder of Notes that are authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company under this Indenture or the Notes, that: (ia) the principal of, or Accreted Value of (and premium, if any), and as applicable, and, on or after the Extension Date, any cash interest on, the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturity, upon acceleration, upon redemption or repurchase, by acceleration or otherwise; (ii) to the extent permitted by applicable law, interest on overdue principal of, and overdue premium, if any, and interest on, all obligations of the Company to Holders of the Notes or the Trustee under this Indenture or the Notes shall be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually promptly performed, as the case may be, all in accordance with the terms hereof of this Indenture and thereof, and, the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, howeverupon redemption or repurchase, in by acceleration or otherwise. Failing payment when due of any amount so guaranteed or failing performance of any other obligation so guaranteed for whatever reason, each case referred Subsidiary Guarantor shall be obligated to above in this paragraphpay, or to perform or cause the limitations set forth in Section 1703 hereof (collectivelyperformance of, the “same immediately. Each Subsidiary Guarantee Obligations”)Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. “Subject to Each of the provisions of this Article Seventeen, CRLP Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agrees that its Subsidiary Guarantee obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any thereofprovisions of this Indenture or the Notes, the entry release of any other Subsidiary Guarantor, the recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Subsidiary Guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquisheswaives, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs this Indenture. Unless and expenses provided for under this Indenture or (y) as provided until released with respect to any Subsidiary Guarantor in accordance with Section 1018(C) or Article Four 12.04 of this Indenture (subject Indenture, this Subsidiary Guarantee shall remain in full force and effect and continue to survival 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 certain obligations creditors or should a custodian, trustee, liquidator or other similar official be appointed for all or any part of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Company’s assets. “If any Holder of the Notes or the Trustee is required by any court or governmental authority or is otherwise required to return to either the Operating Partnership or CRLPCompany, any Subsidiary Guarantor or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPsuch Subsidiary Guarantor, any amount paid by the Operating Partnership (at any time while a Company or such Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, Guarantor to the Trustee or such Holder in respect of the NotesHolder, the Notes and this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture . Each Subsidiary Guarantor further agrees (to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the fullest extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, ) that, as between it, on the one hand, and the Holders of the Notes and the Trustee, on the other hand, (xa) subject to this Article Twelve, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereofof this Indenture, for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (yb) in the event of any acceleration of any such obligations as provided in such Article Five hereofFive, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of the this Subsidiary Guarantee.
Appears in 1 contract
Samples: Senior Secured Notes Agreement (Diversified Healthcare Trust)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 11, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Issuers hereunder or thereunder, that: (ia) the principal of, and premium, if any, of and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Issuers to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipIssuers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Subsidiary Guarantor. CRLP Subject to Section 6.06, each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipIssuers, any right to require a proceeding first against the Operating Partnership Issuers, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPIssuers, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Issuers or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the such Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of such Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of such Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.
Appears in 1 contract
Samples: Indenture (Gamestop Corp)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 12, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Fourth Supplemental Indenture, the Notes or the Operating Partnership obligations of the Issuer hereunder or thereunder, that: (ia) the principal of, and premiuminterest, if any, and interest on, premium on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Issuer to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) or thereunder shall be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Fourth Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipIssuer, any right to require a proceeding first against the Operating Partnership Issuer, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and this Fourth Supplemental Indenture. Each Subsidiary Guarantor also agrees to pay any and all other costs and expenses provided for (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)12.01. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPIssuer, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Issuer or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees. Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary 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. In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Subsidiary Guarantee issued by any Subsidiary Guarantor shall be a senior obligation of such Subsidiary Guarantor and will be secured by a first-priority lien on the Non-Receivables Collateral and by a second-priority lien on the Shared Receivables Collateral. The Subsidiary Guarantees shall rank equally in right of payment with all existing and future Senior Indebtedness of the Subsidiary Guarantor but, to the extent of the value of the Collateral, will be effectively senior to all of the Subsidiary Guarantor’s unsecured Senior Indebtedness and Junior Lien Obligations and, to the extent of the Shared Receivables Collateral, will be effectively subordinated to the Subsidiary Guarantor’s Obligations under the ABL Facility and any future ABL Obligations. The Subsidiary Guarantees will be senior in right of payment to all existing and future Subordinated Indebtedness of each Subsidiary Guarantor. The Notes will be structurally subordinated to Indebtedness and other liabilities of Subsidiaries of the Issuer that do not Guarantee the Notes. Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. As used in this Section 12.01, the term “Trustee” shall also include each of the Paying Agent, Registrar and Transfer Agent, as applicable.
Appears in 1 contract
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Twelve, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby jointly, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully severally and unconditionally guarantees guarantees, on a senior secured basis, to each Holder of Notes that are authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company under this Indenture or the Notes, that: :
(ia) the principal of, and premium, if any, and interest on, on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturity, upon acceleration, upon redemption or repurchase, by acceleration or otherwise; (ii) to the extent permitted by applicable law, interest on overdue principal of, and overdue premium, if any, and interest on, all obligations of the Company to Holders of the Notes or the Trustee under this Indenture or the Notes shall be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually promptly performed, as the case may be, all in accordance with the terms hereof of this Indenture and thereof, the Notes; and,
(b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, howeverupon redemption or repurchase, in by acceleration or otherwise. Failing payment when due of any amount so guaranteed or failing performance of any other obligation so guaranteed for whatever reason, each case referred Subsidiary Guarantor shall be obligated to above in this paragraphpay, or to perform or cause the limitations set forth in Section 1703 hereof (collectivelyperformance of, the “same immediately. Each Subsidiary Guarantee Obligations”)Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. “Subject to Each of the provisions of this Article Seventeen, CRLP Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agrees that its Subsidiary Guarantee obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any thereofprovisions of this Indenture or the Notes, the entry release of any other Subsidiary Guarantor, the recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Subsidiary Guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquisheswaives, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs this Indenture. Unless and expenses provided for under this Indenture or (y) as provided until released with respect to any Subsidiary Guarantor in accordance with Section 1018(C) or Article Four 12.04 of this Indenture (subject Indenture, this Subsidiary Guarantee shall remain in full force and effect and continue to survival 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 certain obligations creditors or should a custodian, trustee, liquidator or other similar official be appointed for all or any part of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Company’s assets. “If any Holder of the Notes or the Trustee is required by any court or governmental authority or is otherwise required to return to either the Operating Partnership or CRLPCompany, any Subsidiary Guarantor or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPsuch Subsidiary Guarantor, any amount paid by the Operating Partnership (at any time while a Company or such Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, Guarantor to the Trustee or such Holder in respect of the NotesHolder, the Notes and this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture . Each Subsidiary Guarantor further agrees (to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the fullest extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, ) that, as between it, on the one hand, and the Holders of the Notes and the Trustee, on the other handother, (xa) subject to this Article Twelve, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereofof this Indenture, for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (yb) in the event of any acceleration of any such obligations as provided in such Article Five hereofFive, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of the this Subsidiary Guarantee.
Appears in 1 contract
Samples: Senior Secured Notes Agreement (Office Properties Income Trust)
Subsidiary Guarantee. “The provisions Each Subsidiary that is a signatory hereto and each Subsidiary of the Company that in accordance with the terms of any Securities of a Series issued hereunder pursuant to any supplement indenture relating to such Securities is required to become party to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenturea guarantor (each, CRLP will be deemed to have acknowledged a "GUARANTOR"), hereby jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and severally unconditionally guarantees to each Holder Securityholder of Notes a Security of a Series that are is to be guaranteed and that has been authenticated by the Trustee and delivered by the Trustee irrespective of the validity or enforceability of this Indenture, the Securities or the Operating Partnership obligations of the Company under this Indenture or the Securities, that: (i) the principal of, and premium, if any, of and interest on, on the Notes shall Securities will be duly and punctually paid in full when due, whether at Stated Maturitythe maturity or interest payment or mandatory redemption date, upon by acceleration, upon call for redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest, if any, on the Securities and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to Securityholders or the Trustee hereunder and under this Indenture or the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall Securities will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof of this Indenture and thereof, and, the Securities; and (ii) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, the same shall they will be duly and punctually paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectively, the “Subsidiary Guarantee Obligations”)by acceleration or otherwise. “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, to the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence Failing payment when due of any action amount so guaranteed for whatever reason, each Guarantor will be obligated to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce pay the same whether or any other circumstance not such failure to pay has become an Event of Default which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, to the Trustee or such Holder in respect of the Notes, the Subsidiary Guarantee of the Notes, to the extent theretofore discharged or released, shall, to the extent permitted by applicable law, be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, could cause acceleration pursuant to Section 401 or 402 or clause (iv) 6.2 hereof. Each Guarantor agrees that this is a guarantee of the last paragraph payment not a guarantee of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, and (y) in the event of any acceleration of any such obligations as provided in Article Five hereof, the Subsidiary Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP for the purpose of the Subsidiary Guaranteecollection.
Appears in 1 contract
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into 10, each of the Subsidiary Guarantors shall, jointly and severally, unconditionally guarantee, on a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenturesenior secured basis, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and the Collateral Agent and their respective successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (ia) the principal of, and premium, if any, and or interest on, on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest onall other Obligations of the Company to the Holders or the Trustee or the Collateral Agent hereunder, under the Notes or under any Collateral Document shall be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes Holder, the Collateral Agent or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect either to the Notes)Trustee, or any amount paid by CRLP, to the Trustee Collateral Agent or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes Holders, the Collateral Agent and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five hereof6, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees. Each Subsidiary 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, reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary 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. In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
Appears in 1 contract
Samples: Indenture (Fortrea Holdings Inc.)
Subsidiary Guarantee. “The provisions Each Subsidiary that is a signatory hereto, if any, and each Subsidiary of the Company that in accordance with the terms of any Securities of a Series issued hereunder pursuant to any supplement indenture relating to such Securities is required to become party to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenturea guarantor (each, CRLP will be deemed to have acknowledged a "Guarantor"), hereby jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and severally unconditionally guarantees to each Holder Securityholder of Notes a Security of a Series that are is to be guaranteed and that has been authenticated by the Trustee and delivered by the Trustee irrespective of the validity or enforceability of this Indenture, the Securities or the Operating Partnership obligations of the Company under this Indenture or the Securities, that: (i) the principal of, and premium, if any, of and interest on, on the Notes shall Securities will be duly and punctually paid in full when due, whether at Stated Maturitythe maturity or interest payment or mandatory redemption date, upon by acceleration, upon call for redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest, if any, on the Securities and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to Securityholders or the Trustee hereunder and under this Indenture or the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall Securities will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof of this Indenture and thereof, and, the Securities; and (ii) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, the same shall they will be duly and punctually paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at maturity, howeverby acceleration or otherwise. Failing payment when due of any amount so guaranteed for whatever reason, in each case referred Guarantor will be obligated to above in pay the same whether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 6.2 hereof. Each Guarantor agrees that this paragraph, is a guarantee of payment not a guarantee of collection. Each Guarantor hereby agrees that its obligations with regard to the limitations set forth in Section 1703 hereof (collectively, the “this Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, to the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be joint and several and unconditional, irrespective of the validity, regularity validity or enforceability of the Notes Securities or the obligations of the Company under this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry recovery of any judgment against the Operating PartnershipCompany or any other obligor with respect to this Indenture, the Securities or the obligations of the Company under this Indenture or the Securities, any action to enforce the same or any other circumstance circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of CRLPa Guarantor. CRLP hereby waives and relinquishesEach Guarantor further, to the extent permitted by law, waives and relinquishes all claims, rights and remedies accorded by applicable lawlaw to guarantors and agrees not to assert or take advantage of any such claims, rights or remedies, including but not limited to: (a) any right to require the Trustee, the Holders of Notes Securityholders or the Operating Partnership Company (each, a “Subsidiary Guarantee "Benefited Party”") to proceed against the Operating Partnership Company or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s 's power before proceeding against CRLPsuch Guarantor; (b) the defense of the statute of limitations in any action hereunder or in any action for the collection of any Indebtedness or the performance of any obligation hereby guaranteed; (c) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or PersonsPerson; (cd) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness Indebtedness or obligation or of any action or non-action on the part of CRLPsuch Guarantor, the Operating PartnershipCompany, any other Subsidiary Guarantee Benefited Party or Party, any creditor of CRLP or such Guarantor, the Operating Partnership Company or on the part of any other Person whomsoever in connection with any Indebtedness or obligations the performance of which are hereby guaranteed; (de) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP such Guarantor for reimbursement; (ef) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (fg) any defense arising because of a Subsidiary Guarantee Benefited Party’s election 's election, in any proceeding instituted under Bankruptcy Law, of the application of 11 U.S.C. Section 1111(b)(2) ); or (or any successor provision thereto) of the Bankruptcy Code; and (gh) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, to the Trustee or such Holder in respect of the Notes, the Subsidiary Guarantee of the Notes, to the extent theretofore discharged or released, shall, to the extent permitted by applicable law, be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, and (y) in the event of any acceleration of any such obligations as provided in Article Five hereof, the Subsidiary Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP for the purpose of the Subsidiary Guarantee.11 U.S.C.
Appears in 1 contract
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 11, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Issuer hereunder or thereunder, that: (ia) the principal of, and premium, if any, of and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Issuer to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Subsidiary Guarantor. CRLP Subject to Section 6.06, each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipIssuer, any right to require a proceeding first against the Operating Partnership Issuer, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPIssuer, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Issuer or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the such Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of such Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of such Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any nonpaying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.
Appears in 1 contract
Samples: Indenture (GameStop Corp.)
Subsidiary Guarantee. “The provisions Subject to Section 10.6 hereof, each of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee or and to the Operating Partnership Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes, the Collateral Documents and the Obligations of the Company hereunder and thereunder, that: (ia) the principal of, of and premium, if any, premium and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; , and interest on the overdue principal, premium, (ii) to the extent permitted by applicable law, ) interest on overdue principal ofthe Notes, and overdue premium, if any, and interest on, all other payment Obligations of the Notes shall Company to the Holders or the Trustee hereunder or thereunder will be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectsubject to any applicable grace period, howeverwhether at stated maturity, by acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate, the Obligations of the Subsidiary Guarantors hereunder in each case referred to above in this paragraph, the same manner and to the limitations set forth in Section 1703 hereof (collectively, same extent as the “Obligations of the Company. The Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Subsidiary Guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding proceding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, Obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors, or any trustee Note Custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), Company or any amount paid by CRLP, Subsidiary Guarantor to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders of Notes in respect of any Obligations guaranteed hereby. Each Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (xa) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article Five hereofVI hereof for the purposes of its Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee ObligationsObligations guaranteed thereby, and (yb) in the event of any declaration of acceleration of any such obligations Obligations as provided in Article Five VI hereof, the Subsidiary Guarantee such Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantor for the purpose of its Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees.
Appears in 1 contract
Samples: Indenture (Neenah Foundry Co)
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject Subject to the provisions of this Article SeventeenX, CRLP hereby fully the Guarantor unconditionally and unconditionally irrevocably guarantees to each Holder of Notes that are authenticated by Lender and the Trustee Agent and delivered by the Trustee or the Operating Partnership their respective successors and assigns, that: (i) the principal of, and premium, if any, and interest on, on the Notes shall Advances and all L/C Reimbursement Obligations and any promissory note issued hereunder will be duly and punctually paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon by redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on overdue principal ofprincipal, and overdue premium, if any, and (to the extent permitted by law) interest onon any interest, if any, on the Notes shall be duly Advances, and punctually paid in full when due; all L/C Reimbursement Obligations and (iii) any promissory note issued hereunder and all other obligations of the Operating Partnership Company to the Holders of Notes Lenders or the Agent hereunder (including fees and (solely insofar as it relates to the Notesexpenses) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may befull, all in accordance with the terms hereof hereof; and thereof, and, (ii) in case of any extension of time of payment or renewal of any Notes of the Advances or any of such other obligationsobligations including, without limitation, as a result of any amendment and restatement of the Existing Credit Agreement or any other Loan Document, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension extension, renewal or renewalamendment and restatement, subjectwhether at stated maturity, howeverby acceleration or otherwise. Failing payment when due of any amount so guaranteed, in each case referred to above in this paragraph, or failing performance of any other obligation of the Company to the limitations set forth in Section 1703 hereof (collectivelyLenders or the Agent, for whatever reason, the “Subsidiary Guarantor will be obligated to pay, or to perform or to cause the performance of, the same immediately. An Event of Default under this Agreement shall constitute an event of default under this Guarantee, and shall entitle the Lenders to accelerate the obligations of the Guarantor under this Guarantee Obligations”). “Subject in the same manner and to the provisions same extent as the obligations of this Article Seventeen, CRLP the Company. The Guarantor hereby agrees, to the extent permitted by applicable law, agrees that its Subsidiary obligations under this Guarantee hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this IndentureAgreement, the absence of any action to enforce the same, any waiver or consent by any Holder Lender or the Agent of Notes this Agreement with respect to any thereof, the entry of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPthe Guarantor. CRLP The Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the TrusteeAgent, the Holders of Notes Lenders or the Operating Partnership Company (each, a “Subsidiary Guarantee Benefited PartyBenefitted Person”) to proceed against the Operating Partnership Company or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party Benefitted Person at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Partysecured party’s power before proceeding against CRLPthe Guarantor; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party Benefitted Person to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this IndentureAgreement), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness Debt or obligation or of any action or non-action on the part of CRLPthe Guarantor, the Operating PartnershipCompany, any other Subsidiary Guarantee Benefited Party or Benefitted Person, any creditor of CRLP or the Operating Partnership Guarantor, the Company or on the part of any other Person whomsoever in connection with any obligations the performance of which are hereby guaranteedguaranteed under this Guarantee; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited PartyBenefitted Person, including but not limited to an election to proceed against CRLP the Guarantor for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited PartyBenefitted Person’s election election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP The Guarantor hereby covenants, to the extent permitted by applicable law, covenants that the Subsidiary this Guarantee of the Notes shall will not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligationsprincipal, including the payment in full of the principal of, and premium, if any, and interest on, on the Notes Advances and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four Agreement. This is a Guarantee of this Indenture (subject to survival payment and not of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)collectability. “If any Holder of Notes Lender or the Trustee Agent is required by any court or otherwise to return to either the Operating Partnership Company or CRLPthe Guarantor, or any trustee or similar official acting in relation to either the Operating Partnership Company or CRLPthe Guarantor, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect Company or the Guarantor to the Notes), or any amount paid by CRLP, to the Trustee Agent or such Holder in respect of the NotesLender, the Subsidiary Guarantee of the Notesthis Guarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, The Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders of Notes Lenders or the Agent in respect of any Subsidiary obligations guaranteed under this Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligationsobligations guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, The Guarantor agrees that, as between it, on the one hand, and the Holders of Notes Lenders and the TrusteeAgent, on the other hand, (x) the maturity of the obligations guaranteed hereby under this Guarantee may be accelerated as provided in Article Five VI hereof for the purposes hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any acceleration of any such obligations as provided in Article Five VI hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP such Guarantor for the purpose of the Subsidiary this Guarantee.
Appears in 1 contract
Subsidiary Guarantee. “The provisions of (a) Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 12, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Security authenticated by the Trustee 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 Operating Partnership obligations of the Company hereunder or thereunder, that: :
(i) the principal of, and premium, if any, and interest (including any Additional Payment, Additional Interest or Extension Fee) on, the Notes shall Securities will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption redemption, required repurchase or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Securities, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, ; and,
(ii) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors will be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection.
(b) The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be are unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes the Securities with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, obligations contained in the Securities and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or Indenture.
(yc) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, will be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause .
(ivd) of the last paragraph of Section 1018(C), of CRLP’s Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y2) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall will forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors will have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.
Appears in 1 contract
Samples: Indenture (Titan International Inc)
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Subject to Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture10.06 hereof, CRLP will be deemed to have acknowledged the Guarantors hereby, jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee or and to the Operating Partnership Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes held thereby and the Obligations of the Company hereunder and thereunder, that: (ia) the principal of, of and premium, interest and Liquidated Damages, if any, and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; , and interest on the overdue principal, premium, (ii) to the extent permitted by applicable law, ) interest on overdue principal of, and overdue premiumLiquidated Damages, if any, on the Notes, and interest on, all other payment Obligations of the Notes shall Company to the Holders or the Trustee hereunder or thereunder will be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectsubject to any applicable grace period, howeverwhether at stated maturity, by acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the Obligations of the Guarantors hereunder in each case referred to above in this paragraph, the same manner and to the limitations set forth in Section 1703 hereof (collectively, same extent as the “Subsidiary Guarantee Obligations”)Obligations of the Company. “Subject to the provisions of this Article Seventeen, CRLP The Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Guarantor. CRLP Each Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, Obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Guarantors, or any trustee Note Custodian, Trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, to the Trustee or such Holder in respect of the Notes, the Subsidiary Guarantee of the Notes, to the extent theretofore discharged or released, shall, to the extent permitted by applicable law, be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, and (y) in the event of any acceleration of any such obligations as provided in Article Five hereof, the Subsidiary Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP for the purpose of the Subsidiary Guarantee.the
Appears in 1 contract
Samples: Indenture (Greyhound Lines Inc)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 12, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Twenty-Fifth Supplemental Indenture, the Notes or the Operating Partnership obligations of the Issuer hereunder or thereunder, that: (ia) the principal of, and premiuminterest, if any, and interest on, premium on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Issuer to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) or thereunder shall be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Twenty-Fifth Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipIssuer, any right to require a proceeding first against the Operating Partnership Issuer, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and this Twenty-Fifth Supplemental Indenture. Each Subsidiary Guarantor also agrees to pay any and all other costs and expenses provided for (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)12.01. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPIssuer, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Issuer or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees. Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary 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. In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Subsidiary Guarantee issued by any Subsidiary Guarantor shall be a senior obligation of such Subsidiary Guarantor and will be secured by a first-priority lien on the Non-Receivables Collateral (other than certain pledged stock as described in Section 11.04(c)) and by a second-priority lien on the Shared Receivables Collateral. The Subsidiary Guarantees shall rank equally in right of payment with all existing and future Senior Indebtedness of the Subsidiary Guarantor but, to the extent of the value of the Collateral, will be effectively senior to all of the Subsidiary Guarantor’s unsecured Senior Indebtedness and Junior Lien Obligations and, to the extent of the Shared Receivables Collateral, will be effectively subordinated to the Subsidiary Guarantor’s Obligations under the ABL Facility and any future ABL Obligations. The Subsidiary Guarantees will be senior in right of payment to all existing and future Subordinated Indebtedness of each Subsidiary Guarantor. The Notes will be structurally subordinated to Indebtedness and other liabilities of Subsidiaries of the Issuer that do not Guarantee the Notes. Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. As used in this Section 12.01, the term “Trustee” shall also include each of the Paying Agent, Registrar and Transfer Agent, as applicable. Prior to a Ratings Event, within 30 days of any Restricted Subsidiary becoming a guarantor under the General Credit Facility, such Restricted Subsidiary shall become a guarantor of the Notes by executing and delivering a Supplemental Indenture in the form of Exhibit B hereto.
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Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged hereby acknowledges and agreed agrees that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are authenticated by the Trustee and delivered by the Trustee or the Operating Partnership that: (i) the principal of, and premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due, whether at Stated Maturity, upon acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, interest on overdue principal of, and overdue premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and or (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Indenture or under the Notes (including, without limitation, obligations to pay fees, expenses and or other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof of the Indenture and thereofthe Notes, and, in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall be duly and punctually paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption or otherwise, or duly and punctually performed, as the case may be, in accordance with the terms of the extension or renewal, subject, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof of the Indenture (collectivelysuch Section 1703 having been added to the Original Indenture by the First Supplemental Indenture) and, in each case referred to above, on the “Subsidiary Guarantee Obligations”other terms and conditions set forth in Article Seventeen of the Indenture (such Article Seventeen having been added to the Original Indenture by the First Supplemental Indenture). “Subject Without limitation to the provisions of this Article Seventeenforegoing, CRLP hereby agrees, to the extent permitted by applicable law, agrees that its Subsidiary Guarantee hereunder it shall be unconditionalbound by, irrespective and that it shall comply with and perform, all of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, obligations and agreements to be complied with and performed by CRLP under the extent permitted by applicable lawIndenture (including, that without limitation, Article Seventeen thereof) and under the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premiumGuarantees, if any, and interest on, endorsed on the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to certificates evidencing the Notes), or any amount paid by CRLP, to the Trustee or such Holder in respect of the Notes, the Subsidiary Guarantee of the Notes, to the extent theretofore discharged or released, shall, to the extent permitted by applicable law, be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, and (y) in the event of any acceleration of any such obligations as provided in Article Five hereof, the Subsidiary Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP for the purpose of the Subsidiary Guarantee.
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Samples: First Supplemental Indenture (Mid-America Apartments, L.P.)
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject Subject to the provisions of this Article SeventeenX, CRLP hereby fully the Guarantor unconditionally and unconditionally irrevocably guarantees to each Holder of Notes that are authenticated by Lender and the Trustee Agent and delivered by the Trustee or the Operating Partnership their respective successors and assigns, that: (i) the principal of, and premium, if any, and interest on, on the Notes shall Advances and any promissory note issued hereunder will be duly and punctually paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon by redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on overdue principal ofprincipal, and overdue premium, if any, and (to the extent permitted by law) interest onon any interest, if any, on the Notes shall be duly Advances, any promissory note issued hereunder and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes Lenders or the Agent hereunder (including fees and (solely insofar as it relates to the Notesexpenses) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may befull, all in accordance with the terms hereof hereof; and thereof, and, (ii) in case of any extension of time of payment or renewal of any Notes of the Advances or any of such other obligations, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, howeverby acceleration or otherwise. Failing payment when due of any amount so guaranteed, in each case referred to above in this paragraph, or failing performance of any other obligation of the Company to the limitations set forth in Section 1703 hereof (collectivelyLenders or the Agent, for whatever reason, the “Subsidiary Guarantor will be obligated to pay, or to perform or to cause the performance of, the same immediately. An Event of Default under this Agreement shall constitute an event of default under this Guarantee, and shall entitle the Lenders to accelerate the obligations of the Guarantor under this Guarantee Obligations”). “Subject in the same manner and to the provisions of this Article Seventeen, CRLP hereby agrees, to same extent as the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be unconditional, irrespective obligations of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: Company.
(a) any right to require the TrusteeAgent, the Holders of Notes Lenders or the Operating Partnership Company (each, a “Subsidiary Guarantee Benefited Party”"Benefitted Person") to proceed against the Operating Partnership Company or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party Benefitted Person at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s secured party's power before proceeding against CRLPthe Guarantor; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party Benefitted Person to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this IndentureAgreement), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness Debt or obligation or of any action or non-action on the part of CRLPthe Guarantor, the Operating PartnershipCompany, any other Subsidiary Guarantee Benefited Party or Benefitted Person, any creditor of CRLP or the Operating Partnership Guarantor, the Company or on the part of any other Person whomsoever in connection with any obligations the performance of which are hereby guaranteedguaranteed under this Guarantee; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited PartyBenefitted Person, including but not limited to an election to proceed against CRLP the Guarantor for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election Benefitted Person's election, in any proceeding instituted under the Bankruptcy Code, of the 364-Day Credit Agreement application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP The Guarantor hereby covenants, to the extent permitted by applicable law, covenants that the Subsidiary this Guarantee of the Notes shall will not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligationsprincipal, including the payment in full of the principal of, and premium, if any, and interest on, on the Notes Advances and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four Agreement. This is a Guarantee of this Indenture (subject to survival payment and not of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)collectibility. “If any Holder of Notes Lender or the Trustee Agent is required by any court or otherwise to return to either the Operating Partnership Company or CRLPthe Guarantor, or any trustee or similar official acting in relation to either the Operating Partnership Company or CRLPthe Guarantor, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect Company or the Guarantor to the Notes), or any amount paid by CRLP, to the Trustee Agent or such Holder in respect of the NotesLender, the Subsidiary Guarantee of the Notesthis Guarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, The Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders of Notes Lenders or the Agent in respect of any Subsidiary obligations guaranteed under this Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligationsobligations guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, The Guarantor agrees that, as between it, on the one hand, and the Holders of Notes Lenders and the TrusteeAgent, on the other hand, (x) the maturity of the obligations guaranteed hereby under this Guarantee may be accelerated as provided in Article Five VI hereof for the purposes hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any acceleration of any such obligations as provided in Article Five VI hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP such Guarantor for the purpose of the Subsidiary this Guarantee.
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Subsidiary Guarantee. “The provisions of (a) Subject to this Article Seventeen 10, in the event that any Restricted Subsidiary of the Company shall not become effective until such time as CRLP shall have entered into execute and deliver a supplemental indenture to this Indenture with respect to a Subsidiary Guarantee Supplemental Indenture (as contemplated required by Section 1018. By its execution of 10.02 hereof or otherwise), any such Subsidiary Guarantee Supplemental IndentureGuarantor shall, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees guarantee to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (i) the principal of, and of premium, if any, and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, howeverby acceleration pursuant to Section 7.02 hereof or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, in each case referred any Guarantor shall be jointly and severally obligated to above in pay the same immediately. Any Guarantor also agrees that this paragraph, is a guarantee of payment and not a guarantee of collection.
(b) Any Guarantor agrees that its obligations with regard to the limitations set forth in Section 1703 hereof (collectively, the “such Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, to the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be joint and several, unconditional, irrespective of the validity, regularity validity or enforceability of the Notes or the obligations of the Company under this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry recovery of any judgment against the Operating PartnershipCompany or any other obligor with respect to this Indenture, the Notes or the obligations of the Company under this Indenture or the Notes, any action to enforce the same or any other circumstance circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of CRLPa Guarantor. CRLP hereby waives and relinquishesAny Guarantor further, to the extent permitted by law, waives and relinquishes all claims, rights and remedies accorded by applicable lawlaw to guarantors and agrees not to assert or take advantage of any such claims, rights or remedies, including but not limited to: (ai) any right to require any of the Trustee, the Holders of Notes or the Operating Partnership Company (each, each a “Subsidiary Guarantee Benefited Party”), as a condition of payment or performance by such Guarantor, to (A) to proceed against the Operating Partnership Company, any other guarantor (including any other Guarantor) of the obligations under the Subsidiary Guarantees or any other Person or to person, (B) proceed against or exhaust any security held by a Subsidiary Guarantee from the Company, any such other guarantor or any other person, (C) proceed against or have resort to any balance of any deposit account or credit on the books of any Benefited Party at in favor of the Company or any time other person, or to (D) pursue any other remedy in the power of any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLPParty whatsoever; (bii) any defense that may arise arising by reason of the incapacity, lack of authorityauthority or any disability or other defense of the Company including any defense based on or arising out of the lack of validity or the unenforceability of the obligations under the Subsidiary
(A) any principles or provisions of law, death statutory or disability otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (B) the benefit of any other Person or Persons statute of limitations affecting such Guarantor’s liability hereunder or the failure of a Subsidiary Guarantee enforcement hereof, (C) any rights to set-offs, recoupments and counterclaims and (D) promptness, diligence and any requirement that any Benefited Party to file protect, secure, perfect or enforce a claim against the estate (in administration, bankruptcy insure any security interest or lien or any other proceeding) of any other Person or Personsproperty subject thereto; (cvi) diligencenotices, presentmentdemands, the filing presentations, protests, notices of claims with any court in the event protest, notices of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership dishonor and any demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or notices of any action or non-action on inaction, including acceptance of the part Subsidiary Guarantees, notices of CRLP, default under the Operating Partnership, any other Subsidiary Guarantee Benefited Party Notes or any creditor of CRLP agreement or the Operating Partnership or on the part instrument related thereto, notices of any other Person in connection with renewal, extension or modification of the obligations under the Subsidiary Guarantees or any obligations agreement related thereto, and notices of any extension of credit to the performance of which are hereby guaranteedCompany and any right to consent to any thereof; (dvii) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by under applicable law, the benefits of any “One Action” rule and (viii) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the Subsidiary Guarantees. Except to the extent expressly provided herein, including Section 8.02, 8.03 and 10.05, any Guarantor covenants that its Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, obligations contained in its Guarantee and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or Indenture.
(yc) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, any Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPany Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the any Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause .
(ivd) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Any Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such Subsidiary Guarantee Obligationsobligations guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, Any Guarantor further agrees that, as between itany Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (xi) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereofSection 7.02 hereof for the purposes of any Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, obligations guaranteed hereby and (yii) in the event of any declaration of acceleration of any such obligations as provided in Article Five Section 7.02 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP any Guarantors for the purpose of any such Subsidiary Guarantee. Any Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the applicable Subsidiary Guarantee.
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Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution 11, each of any such Subsidiary Guarantee Supplemental Indenturethe Guarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (ia) the principal ofof and interest on the Notes, and premiumLiquidated Damages, if any, and interest on, the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such Subsidiary Guarantee Obligationsobligations guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.
Appears in 1 contract
Samples: Indenture (Scotts Company)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution 11, each of any such Subsidiary Guarantee Supplemental Indenturethe Guarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (ia) the principal ofof and interest on the Notes, and premiumRegistration Default Damages, if any, and interest on, the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such Subsidiary Guarantee Obligationsobligations guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.
Appears in 1 contract
Samples: Indenture (Scotts Company)
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees guarantees, on an unsubordinated basis, as primary obligor and not merely as surety, to each Holder of the Notes that are authenticated by and the Trustee the full and delivered by the Trustee or the Operating Partnership that: (i) the principal of, and premium, if any, and interest on, the Notes shall be duly and punctually paid in full punctual payment when due, whether at Stated Maturity, upon acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, interest on overdue principal of, and overdue premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall be duly and punctually paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption acceleration or otherwise, or duly and punctually performed, as the case may be, in accordance with the terms of the extension or renewal, subject, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectively, the “Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, to the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs obligations and expenses provided for liabilities of the Company under this Indenture (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company or the Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C)collectively, Article Four and the next succeeding paragraph“Obligations”). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership The Subsidiary Guarantor further agrees (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, to the Trustee or such Holder in respect of the Notes, the Subsidiary Guarantee of the Notes, to the extent theretofore discharged or released, shall, to the extent permitted by applicable law) that the Obligations may be extended or renewed, be reinstated in full force whole or in part, without notice or further assent from it, and effectthat it will remain bound under this ARTICLE 10 notwithstanding any extension or renewal of any Obligation. The Subsidiary Guarantor waives presentation to, it being understood demand of payment from and agreed that, anything in this Indenture protest to the contrary notwithstandingCompany of any of the Obligations and also waives notice of protest for nonpayment. The Subsidiary Guarantor waives notice of any default under the Notes or the Obligations. The Obligations of the Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise, (b) any extension or renewal of any thereof, (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this sentence Indenture, the Notes or any other agreement, (d) the release of any security held by any Holder or the Trustee for the Obligations or any of them or (e) any change in the ownership of the Company. The Subsidiary Guarantor further agrees that the Subsidiary Guarantee constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Obligations. The Obligations of the Subsidiary Guarantor hereunder shall survive not be subject to any releasereduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full or pursuant to Section 401 10.02 and Section 10.03), including any claim of waiver, release, surrender, alteration or 402 compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or clause termination whatsoever (iv) other than payment of the last paragraph of Obligations in full or pursuant to Section 1018(C), of CRLP’s Subsidiary Guarantees 10.02 and Section 10.03) or by reason of the Notes and invalidity, illegality or unenforceability of CRLP from its other obligations the Obligations or otherwise. Without limiting the generality of the foregoing, the Obligations of the Subsidiary Guarantor herein shall not be (to the extent permitted by law) discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture with respect to Indenture, the Notes and or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of the Subsidiary Guarantor or would otherwise operate as a discharge of the Subsidiary Guarantor as a matter of law or equity. The Subsidiary Guarantor agrees that the Subsidiary Guarantee shall remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations effect until payment in full and performance of all such the Obligations or until the Subsidiary Guarantor is released from the Subsidiary Guarantee Obligationsupon the merger or the sale of all or substantially all of the common stock of, or other ownership interests in, or assets of the Subsidiary Guarantor in compliance with Section 10.02, or upon its release from the Subsidiary Guarantee pursuant to Section 10.03. CRLP agreesThe Subsidiary Guarantor further agrees that, unless the Subsidiary Guarantee has been released pursuant to Section 10.02 or Section 10.03, the Subsidiary Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against the Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration or otherwise, the Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing and (ii) without duplication of any amounts included in the preceding clause (i), accrued and unpaid interest (including any Additional Interest), if any, on such Obligations then due and owing (but only to the extent permitted not prohibited by applicable law, ). The Subsidiary Guarantor further agrees that, as between itthe Subsidiary Guarantor, on the one hand, and the Holders of Notes and the TrusteeHolders, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article Five hereofthis Indenture for the purposes of the Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of any such obligations as provided in Article Five hereofObligations, the Subsidiary Guarantee such Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantor for the purpose purposes of the Subsidiary Guarantee. The Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee in enforcing any rights under this Section 10.01.
Appears in 1 contract
Subsidiary Guarantee. “The provisions of (a) Subject to this Article Seventeen 10, in the event that any Restricted Subsidiary of the Company shall not become effective until such time as CRLP shall have entered into execute and deliver a supplemental indenture to this Indenture with respect to a Subsidiary Guarantee Supplemental Indenture (as contemplated required by Section 1018. By its execution of 10.02 hereof or otherwise), any such Subsidiary Guarantee Supplemental IndentureGuarantor shall, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees guarantee to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (i) the principal of, and of premium, if any, and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, howeverby acceleration pursuant to Section 7.02 hereof or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, in each case referred any Guarantor shall be jointly and severally obligated to above in pay the same immediately. Any Guarantor also agrees that this paragraph, is a guarantee of payment and not a guarantee of collection.
(b) Any Guarantor agrees that its obligations with regard to the limitations set forth in Section 1703 hereof (collectively, the “such Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, to the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be joint and several, unconditional, irrespective of the validity, regularity validity or enforceability of the Notes or the obligations of the Company under this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry recovery of any judgment against the Operating PartnershipCompany or any other obligor with respect to this Indenture, the Notes or the obligations of the Company under this Indenture or the Notes, any action to enforce the same or any other circumstance circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of CRLPa Guarantor. CRLP hereby waives and relinquishesAny Guarantor further, to the extent permitted by law, waives and relinquishes all claims, rights and remedies accorded by applicable lawlaw to guarantors and agrees not to assert or take advantage of any such claims, rights or remedies, including but not limited to: (ai) any right to require any of the Trustee, the Holders of Notes or the Operating Partnership Company (each, each a “Subsidiary Guarantee Benefited Party”), as a condition of payment or performance by such Guarantor, to (A) to proceed against the Operating Partnership Company, any other guarantor (including any other Guarantor) of the obligations under the Subsidiary Guarantees or any other Person or to person, (B) proceed against or exhaust any security held by a Subsidiary Guarantee from the Company, any such other guarantor or any other person, (C) proceed against or have resort to any balance of any deposit account or credit on the books of any Benefited Party at in favor of the Company or any time other person, or to (D) pursue any other remedy in the power of any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLPParty whatsoever; (bii) any defense that may arise arising by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy authority or any disability or other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution defense of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this Indenture), Company including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election on or arising out of remedies the lack of validity or the unenforceability of the obligations under the Subsidiary Guarantees or any agreement or instrument relating thereto or by a reason of the cessation of the liability of the Company from any cause other than payment in full of the obligations under the Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursementGuarantees; (eiii) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (giv) any defense based on upon any borrowing Benefited Party’s errors or grant omissions in the administration of a the obligations under the Subsidiary Guarantees, except behavior which amounts to bad faith; (v)
(A) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (B) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (C) any rights to set-offs, recoupments and counterclaims and (D) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest under Section 364 (or lien or any successor provision property subject thereto; (vi) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Bankruptcy Code. CRLP hereby covenantsSubsidiary Guarantees, notices of default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification of the obligations under the Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (vii) to the extent permitted by under applicable law, the benefits of any “One Action” rule and (viii) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the Subsidiary Guarantees. Except to the extent expressly provided herein, including Section 8.02, 8.03 and 10.05, any Guarantor covenants that its Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, obligations contained in its Guarantee and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or Indenture.
(yc) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, any Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPany Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the any Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause .
(ivd) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Any Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such Subsidiary Guarantee Obligationsobligations guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, Any Guarantor further agrees that, as between itany Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (xi) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereofSection 7.02 hereof for the purposes of any Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, obligations guaranteed hereby and (yii) in the event of any declaration of acceleration of any such obligations as provided in Article Five Section 7.02 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP any Guarantors for the purpose of any such Subsidiary Guarantee. Any Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the applicable Subsidiary Guarantee.
Appears in 1 contract
Subsidiary Guarantee. “The provisions of (a) Subject to this Article Seventeen 10, in the event that any Restricted Subsidiary of the Company shall not become effective until such time as CRLP shall have entered into execute and deliver a supplemental indenture to this Indenture with respect to a Subsidiary Guarantee Supplemental Indenture (as contemplated required by Section 1018. By its execution of 10.02 hereof or otherwise), any such Subsidiary Guarantee Supplemental IndentureGuarantor shall, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees guarantee to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (i) the principal of, and of premium, if any, and interest on, and Additional Interest on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, howeverby acceleration pursuant to Section 6.02 hereof or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, in each case referred any Guarantor shall be jointly and severally obligated to above in pay the same immediately. Any Guarantor also agrees that this paragraph, is a guarantee of payment and not a guarantee of collection.
(b) Any Guarantor agrees that its obligations with regard to the limitations set forth in Section 1703 hereof (collectively, the “such Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, to the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be joint and several, unconditional, irrespective of the validity, regularity validity or enforceability of the Notes or the obligations of the Company under this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry recovery of any judgment against the Operating PartnershipCompany or any other obligor with respect to this Indenture, the Notes or the obligations of the Company under this Indenture or the Notes, any action to enforce the same or any other circumstance circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of CRLPa Guarantor. CRLP hereby waives and relinquishesAny Guarantor further, to the extent permitted by law, waives and relinquishes all claims, rights and remedies accorded by applicable lawlaw to guarantors and agrees not to assert or take advantage of any such claims, rights or remedies, including but not limited to: (ai) any right to require any of the Trustee, the Holders of Notes or the Operating Partnership Company (each, each a “Subsidiary Guarantee Benefited Party”), as a condition of payment or performance by such Guarantor, to (A) to proceed against the Operating Partnership Company, any other guarantor (including any other Guarantor) of the obligations under the Subsidiary Guarantees or any other Person or to person, (B) proceed against or exhaust any security held by a Subsidiary Guarantee from the Company, any such other guarantor or any other person, (C) proceed against or have resort to any balance of any deposit account or credit on the books of any Benefited Party at in favor of the Company or any time other person, or to (D) pursue any other remedy in the power of any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLPParty whatsoever; (bii) any defense that may arise arising by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy authority or any disability or other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution defense of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this Indenture), Company including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant arising out of a security interest the lack of validity or the unenforceability of the obligations under Section 364 (the Subsidiary Guarantees or any successor provision thereto) agreement or instrument relating thereto or by reason of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee cessation of the Notes shall not be discharged except (x) by payment and performance in full liability of all Subsidiary Guarantee Obligations, including the Company from any cause other than payment in full of the principal ofobligations under the Subsidiary
(A) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (B) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (C) any rights to set-offs, recoupments and counterclaims and (D) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (vi) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary Guarantees, notices of default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification of the obligations under the Subsidiary Guarantees or any agreement related thereto, and premium, if any, notices of any extension of credit to the Company and interest onany right to consent to any thereof; (vii) to the extent permitted under applicable law, the Notes benefits of any “One Action” rule and all other costs (viii) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the Subsidiary Guarantees. Except to the extent expressly provided herein, including Section 8.02, 8.03 and expenses provided for under 10.05, any Guarantor covenants that its Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in its Guarantee and this Indenture or Indenture.
(yc) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, any Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPany Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the any Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause .
(ivd) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Any Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such Subsidiary Guarantee Obligationsobligations guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, Any Guarantor further agrees that, as between itany Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (xi) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereofSection 6.02 hereof for the purposes of any Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, obligations guaranteed hereby and (yii) in the event of any declaration of acceleration of any such obligations as provided in Article Five Section 6.02 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP any Guarantors for the purpose of any such Subsidiary Guarantee. Any Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the applicable Subsidiary Guarantee.
Appears in 1 contract
Samples: Senior Unsecured Term Loan Agreement (Pilgrims Pride Corp)
Subsidiary Guarantee. “The provisions of (a) Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution 10, each of any such Subsidiary Guarantee Supplemental Indenturethe Guarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: :
(i1) the principal of, premium and premiumLiquidated Damages, if any, and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, ; and,
(2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors will be jointly and severally obligated to pay the same immediately. “Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) Subject to the provisions of this Article Seventeen10, CRLP the Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be are unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or Indenture.
(yc) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, will be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause .
(ivd) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Each Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such Subsidiary Guarantee Obligationsobligations guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y2) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall will forthwith become due and payable by CRLP the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.
Appears in 1 contract
Samples: Indenture (Hughes Supply Inc)
Subsidiary Guarantee. “The provisions (a) Pursuant to Section 10.09 of this Article Seventeen shall not become effective until such time as CRLP shall have entered into the Original Indenture, Chicago Express, a Restricted Subsidiary of the Company, hereby provides a Subsidiary Guarantee Supplemental Indenture of payment of the Notes as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject set forth below.
(a) Subject to the provisions of this Article SeventeenSection 3, CRLP Chicago Express, as primary obligor and not merely as surety, hereby fully fully, unconditionally and unconditionally irrevocably guarantees on a senior basis to each Holder of Notes that are authenticated by and to the Trustee and delivered by on behalf of the Trustee or the Operating Partnership that: Holders (a "Subsidiary Guarantee"):
(i) the due and punctual payment of the principal of, and premium, if any, on and interest onon each Note, when and as the Notes same shall be duly become due and punctually paid in full when duepayable, whether at Stated Maturitywhether, upon by acceleration, upon required repurchase (including by reason of Change of Control), call for redemption or otherwise; (ii) to , the extent permitted by applicable law, due and punctual payment of interest on the overdue principal of, of and overdue premiuminterest, if any, on the Notes, to the extent lawful (in each case including interest accruing on or after filing of any petition in bankruptcy or reorganization relating to the Company or any Guarantor, whether or not a claim for post filing interest is allowed in such proceeding), and interest on, the Notes shall be duly due and punctually paid in full when due; and (iii) punctual performance of all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to or the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may beTrustee, all in accordance with the terms hereof of such Note and thereof, and, the Original Indenture and (ii) in the case of any extension of time of payment or renewal of any Notes Note or any of such other obligations, that the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectat Stated Maturity, howeverby acceleration, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof required repurchase (collectively, the “Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, to the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise including by reason of the incapacityChange of Control), lack of authority, death call for redemption or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) otherwise. Chicago Express hereby waives diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency merger or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership and any demandCompany, the benefit of discussion, protest or notice with respect to any such Note or the debt evidenced thereby and notice of any kind (except as expressly required by all demands whatsoever, and covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged as to any such Note except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, thereof and interest on, the Notes thereon and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture 4.01 and Section 4.02 (subject to survival of certain obligations of CRLP as provided in Section 1018(C4.06), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, to the Trustee or such Holder in respect of the Notes, the Subsidiary Guarantee of the Notes, to the extent theretofore discharged or released, shall, to the extent permitted by applicable law, be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, and (y) in the event of any acceleration of any such obligations as provided in Article Five hereof, the Subsidiary Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP for the purpose of the Subsidiary Guarantee.
Appears in 1 contract
Samples: Second Supplemental Indenture (American Trans Air Execujet Inc)
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture(a) For value received, CRLP will be deemed to have acknowledged each Guarantor hereby jointly and agreed that it receives substantial benefits from the Operating Partnership severally fully, unconditionally and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally absolutely guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee or and to the Operating Partnership that: (i) Trustee the due and punctual payment of the principal of, and premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due, whether at Stated Maturity, upon acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, interest on overdue principal of, and overdue premiuminterest, if any, on the Notes and all other amounts due and payable under the Indenture and the Notes by the Company, when and as such principal, premium and interest onshall become due and payable, subject to any applicable grace period, whether at maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, Indenture and, in the case of any extension of time of payment or renewal of any Notes or any of such other obligationsNotes, when the same shall be duly become due and punctually paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption or otherwise, or duly and punctually performed, as the case may be, payable in accordance with the terms of the extension or renewal, subjectsubject to any applicable grace period, howeverwhether at maturity or by declaration or acceleration, call for redemption or otherwise, in each case referred to above in this paragraphcase, subject to the limitations set forth in Section 1703 hereof 11.02.
(collectively, the “Subsidiary Guarantee Obligations”). “Subject b) Failing payment when due of any amount guaranteed pursuant to the provisions related Subsidiary Guarantee, for whatever reason, each of this Article Seventeen, CRLP the Guarantors will be jointly and severally obligated to pay the same immediately. Each of the Guarantors hereby agrees, to the extent permitted by applicable law, agrees that its Subsidiary Guarantee obligations hereunder shall be unconditionalfull, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Notes Notes, its Subsidiary Guarantee, the Subsidiary Guarantee of any other Guarantor or of this the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany or any Guarantor, or any action to enforce the same or any other circumstance circumstances (other than payment) which might otherwise constitute a legal or equitable discharge or defense of CRLPthe Guarantors. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason Each of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court Guarantors hereby agrees that in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person default in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and or premium, if any, or interest on the Notes, whether at maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 7.06, by the Holders, on the terms and interest onconditions set forth in the Indenture, directly against such Guarantor to enforce such Subsidiary Guarantee without first proceeding against the Notes and all Company or any other costs and expenses provided for Guarantor.
(c) The obligations of each of the Guarantors under this Indenture Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (yi) as provided any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Company or any of the Guarantors contained in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by Indenture, (ii) any court impairment, modification, release or otherwise to return to either limitation of the Operating Partnership liability of the Company, any of the Guarantors or CRLPany of their estates in bankruptcy, or any trustee remedy for the enforcement thereof, resulting from the operation of any present or similar official acting in relation to either future provision of any applicable Bankruptcy Law, as amended, or other statute or from the Operating Partnership decision of any court, (iii) the assertion or CRLPexercise by the Company, any amount paid of the Guarantors or the Trustee of any rights or remedies under the Notes or the Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Notes, including all or any part of the rights of the Company or any of the Guarantors under the Indenture, (v) the extension of the time for payment by the Operating Partnership Company or any of the Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Notes or the Indenture or of the time for performance by the Company or any of the Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (at vi) the modification or amendment (whether material or otherwise) of any time while a Subsidiary Guarantee was duty, agreement or obligation of the Company or any of the Guarantors set forth in effect with respect to the Notes)Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Company or any amount paid by CRLPof the Guarantors or any of their respective assets, to or the Trustee or such Holder in respect disaffirmance of the Notes, the Subsidiary Guarantee Guarantees or the Indenture in any such proceeding, (viii) the release or discharge of the Company or any of the Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Notes, the related Subsidiary Guarantees or the Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the extent related Subsidiary Guarantees) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(d) Each of the Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or any of the Guarantors, and all demands whatsoever and (ii) covenants that its Subsidiary Guarantee will not be discharged except by complete performance of such Subsidiary Guarantee. Each of the Guarantors further agrees that if at any time all or any part of any payment theretofore discharged applied by any Person to its Guarantee is, or releasedmust be, rescinded or returned for any reason whatsoever, including, without limitation, the insolvency, bankruptcy or reorganization of the Company or any of the Guarantors, such Subsidiary Guarantee shall, to the extent permitted by applicable lawthat such payment is or must be rescinded or returned, be reinstated deemed to have continued in full force existence notwithstanding such application, and effectsuch Subsidiary Guarantee shall continue to be effective or be reinstated, it being understood as the case may be, as though such application had not been made.
(e) Each of the Guarantors shall be subrogated to all rights of the Holders and agreed that, anything the Trustee against the Company in this Indenture respect of any amounts paid by such Guarantor pursuant to the contrary notwithstanding, the provisions of this sentence shall survive any releasethe Indenture; provided, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable lawhowever, that it such Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation in relation to until all of the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided related Subsidiary Guarantees shall have been paid in Article Five hereof, notwithstanding any stay, injunction full or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, and (y) in the event of any acceleration of any such obligations as provided in Article Five hereof, the Subsidiary Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP for the purpose of the Subsidiary Guaranteedischarged.
Appears in 1 contract
Samples: Indenture (Bristow Group Inc)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 11, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (ia) the principal of, and premium, if any, of and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder 58 will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Subsidiary Guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of the this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Samples: Indenture (Argosy Gaming Co)
Subsidiary Guarantee. “The provisions Subject to Section 10.06 hereof, each of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Senior Note authenticated by the Trustee and delivered by the Trustee or and to the Operating Partnership Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Senior Notes and the Obligations of the Company hereunder and thereunder, that: (ia) the principal of, and premium, if any, interest and interest onLiquidated Damages, if any, on the Senior Notes shall will be duly and punctually promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; , and interest on the overdue principal, premium, if any, (ii) to the extent permitted by applicable law, ) interest on overdue principal of, and overdue premiumany interest, if any, and interest onLiquidated Damages, if any, on the Notes shall Senior Notes, and all other payment Obligations of the Company to the Holders or the Trustee hereunder or thereunder will be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Senior Notes or any of such other obligationsObligations, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectsubject to any applicable grace period, howeverwhether at stated maturity, by acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Senior Notes shall constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the Obligations of the Subsidiary Guarantors hereunder in each case referred to above in this paragraph, the same manner and to the limitations set forth in Section 1703 hereof (collectively, same extent as the “Obligations of the Company. The Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Senior Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Subsidiary Guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, Obligations contained in the Senior Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors, or any trustee Senior Note Custodian, Trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), Company or any amount paid by CRLP, Subsidiary Guarantor to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders of Notes in respect of any Obligations guaranteed hereby. Each Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of its Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee ObligationsObligations guaranteed thereby, and (y) in the event of any declaration of acceleration of any such obligations Obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee such Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantor for the purpose of its Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees.
Appears in 1 contract
Samples: Indenture (Goodman Conveyor Co)
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject Subject to the provisions of this Article Seventeen18 each Subsidiary Guarantor hereby jointly and severally, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company or any other Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder, that: (ia) the principal of, and premium, if any, and interest on, on the Notes shall will be duly and punctually paid in full when due, whether at Stated Maturitymaturity, by acceleration, call for redemption, upon accelerationan Excess Proceeds Offer, upon redemption a Change of Control Offer or otherwise; , and interest on the overdue principal and (ii) to the extent permitted by applicable law, ) interest on overdue principal of, and overdue premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company or the Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder (including amounts due the Trustee hereunder) and all other obligations of Notes and (solely insofar as it relates to the Notes) Company under this Indenture, including to the Trustee hereunder and or under the Notes (including, without limitation, obligations to pay including fees, expenses and other chargesor other) shall will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, howeverby acceleration or otherwise. Failing payment when due of any amount so guaranteed, in each case referred to above in this paragraph, or failing performance of any other obligation of the Company to the limitations set forth in Section 1703 hereof (collectivelyHolders, for whatever reason, each Subsidiary Guarantor will be obligated to pay, or to perform or cause the performance of, the “same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under this Subsidiary Guarantee Obligations”). “Subject Guarantee, and shall entitle the Holders of Notes or the Trustee to accelerate the obligations of the Subsidiary Guarantors hereunder in the same manner and to the provisions same extent as the obligations of this Article Seventeen, CRLP the Company. Each of the Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agrees that its Subsidiary Guarantee obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Notes, the Security Documents or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder holder of the Notes with respect to any provisions hereof or thereof, any release of any other Subsidiary Guarantor, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same same, whether or not a Subsidiary Guarantee is affixed to any particular Note, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each of the Subsidiary Guarantors hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders benefit of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand for payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other covenants that its Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by complete performance of the obligations contained in the Notes, this Indenture and this Subsidiary Guarantee. This Subsidiary Guarantee is a guarantee of payment and performance in full not of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)collection. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership Company or CRLPto any Subsidiary Guarantor, or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPsuch Subsidiary Guarantor, any amount paid by the Operating Partnership (at any time while a Company or such Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, Guarantor to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (xa) subject to this Article 18, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereofherein for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (yb) in the event of any acceleration of any such obligations as provided in Article Five hereofherein, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. This Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company's assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes, whether as a "voidable preference," "fraudulent transfer" or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. The obligations of each Subsidiary Guarantor are limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Subsidiary Guarantor under the Subsidiary GuaranteeGuarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law. Each Subsidiary Guarantor that makes a payment or distribution under a Subsidiary Guarantee shall be entitled to a contribution from each other Subsidiary Guarantor in a pro rata amount based on the net assets of each Subsidiary Guarantor, determined in accordance with GAAP. A Subsidiary Guarantor shall be released from all of its obligations under its Subsidiary Guarantee if it merges with or into or consolidates with, or transfers all or substantially all of its assets in compliance with Section 16.1 hereof, or the Subsidiary Guarantor is designated an Unrestricted Subsidiary in compliance with the other terms of this Indenture, and such Subsidiary Guarantor has delivered to the Trustee an Officers' Certificate and an Opinion of -100- Counsel, each stating that all conditions precedent herein provided for relating to such transaction have been complied with.
Appears in 1 contract
Samples: Indenture (Ibasis Inc)
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Subject to the limitations set forth in the Indenture, CRLP will be deemed the Guarantors (as defined in the Indenture referred to have acknowledged in this Note and agreed that it receives substantial benefits from each hereinafter referred to as a "Guarantor," which term includes any successor or additional Guarantor under the Operating Partnership Indenture) have, jointly and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully irrevocably and unconditionally guarantees to each Holder of Notes that are authenticated by the Trustee and delivered by the Trustee or the Operating Partnership that: guaranteed (ia) the due and punctual payment of the principal of, (and premium, if any, ) of and interest on(including Additional Amounts, if any and Special Interest, if any) on the Notes shall be duly and punctually paid in full when dueNotes, whether at Stated Maturity, upon by acceleration, call for redemption, upon redemption a Change of Control Offer, Asset Sale Offer, offer to purchase upon a Termination of Trading, purchase or otherwise; , (iib) to the extent permitted by applicable law, due and punctual payment of interest on the overdue principal of, of and overdue premiuminterest (including Additional Amounts, if any, and interest onSpecial Interest, if any) on the Notes shall be duly Notes, if any, to the extent lawful, (c) the due and punctually paid in full when due; and (iii) punctual performance of all other obligations of the Operating Partnership Company and the Guarantors to the Holders of Notes under the Indenture, the Notes, the Collateral Documents and the Senior Note Collateral Documents and (solely insofar as it relates to the Notesd) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, howeverby acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, offer to purchase upon a Termination of Trading, purchase or otherwise. Capitalized terms used herein shall have the meanings assigned to them in the Indenture unless otherwise indicated. Payment on each case referred Note is guaranteed, jointly and severally, by the Guarantors pursuant to above in this paragraph, to Article X of the limitations set forth in Section 1703 hereof (collectively, the “Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, Indenture on a senior subordinated basis to the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be unconditional, irrespective provided in the Indenture and reference is made to such Indenture for the precise terms of the validity, regularity or enforceability Guarantees and such subordination. The obligations of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, each Guarantor are limited to the extent permitted by applicable law: lesser of (a) any right an amount equal to require such Guarantor's Adjusted Net Assets as of the Trustee, date of the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; and (b) the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor (including, if applicable, its obligations under the Senior Notes) and after giving effect to any defense that may arise collections from or payments made by reason of the incapacity, lack of authority, death or disability on behalf of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, to the Trustee or such Holder Guarantor in respect of the Notes, the Subsidiary obligations of such other Guarantor under its Guarantee of the Notes, to the extent theretofore discharged or released, shall, to the extent permitted by applicable law, be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other contribution obligations under this Indenture with respect to the Notes and remain Indenture, result in full force and effectthe obligations of such Guarantor under the Guarantee not constituting a 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. CRLP agrees, to the extent permitted by applicable law, Each Guarantor that it makes a payment or distribution under a Guarantee shall not be entitled to any right a contribution from each other Guarantor in a pro rata amount based on the Adjusted Net Assets of subrogation in relation each Guarantor. Certain of the Guarantors may be released from their Guarantees upon the terms and subject to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as conditions provided in Article Five hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, and (y) in the event of any acceleration of any such obligations as provided in Article Five hereof, the Subsidiary Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP for the purpose of the Subsidiary GuaranteeIndenture.
Appears in 1 contract
Samples: Convertible Note Agreement (Nwe Capital Cyprus LTD)
Subsidiary Guarantee. “The provisions To the extent applicable to any series of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Debt Securities, the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors will, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees guarantee to each Holder of Notes that are a Security authenticated by the Trustee and delivered by the Trustee, and to the Trustee or on behalf of such Holder, the Operating Partnership that: (i) due and punctual payment of the principal of, of (and premium, if any, ) and interest on, on such Security when and as the Notes same shall become due and payable on the terms and subject to the conditions established in or pursuant to the applicable Board Resolution. Each of the Subsidiary Guarantors hereby jointly and severally agrees that its obligations under any Subsidiary Guarantee issued pursuant hereto shall be duly and punctually paid in full when dueabsolute unconditional, whether at Stated Maturity, upon acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, interest on overdue principal irrespective of, and overdue premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (includingunaffected by, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall be duly and punctually paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption or otherwise, or duly and punctually performed, as the case may be, in accordance with the terms of the extension or renewal, subject, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectively, the “Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, to the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes applicable Debt Security or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce the same or any release, amendment, waiver, or indulgence granted to the Company or any guarantor or any consent to departure from any requirement of any other circumstance guarantee of all or any of the applicable Debt Securities or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of CRLPa surety or guarantor. CRLP Each of the Subsidiary Guarantors hereby waives and relinquishesthe benefits of diligence, to presentment, demand for payment, any requirement that the extent permitted by applicable law: (a) Trustee or any of the Holders protect, secure, perfect or insure any security interest in or other Lien on any property subject thereto or exhaust any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed take any action against the Operating Partnership Company or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacitycollateral, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership and any demandCompany, protest and or notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes)applicable Debt Security or the indebtedness evidenced thereby and all demands whatsoever, or and covenants under any amount paid by CRLP, to the Trustee or such Holder Subsidiary Guarantee issued pursuant hereto will not be discharged in respect of the Notes, the Subsidiary Guarantee applicable Debt Security except by complete performance of the Notes, to obligations contained in the extent theretofore discharged or released, shall, to the extent permitted by applicable law, be reinstated Debt Security and in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, and (y) in the event of any acceleration of any such obligations as provided in Article Five hereof, the Subsidiary Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP for the purpose of the Subsidiary Guaranteeissued pursuant hereto.
Appears in 1 contract
Samples: Indenture (TMS Venture Holdings Inc)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 12, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Sixth Supplemental Indenture, the Notes or the Operating Partnership obligations of the Issuer hereunder or thereunder, that: (ia) the principal of, and premiuminterest, if any, and interest on, premium on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Issuer to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) or thereunder shall be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Sixth Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipIssuer, any right to require a proceeding first against the Operating Partnership Issuer, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and this Sixth Supplemental Indenture. Each Subsidiary Guarantor also agrees to pay any and all other costs and expenses provided for (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)12.01. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPIssuer, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Issuer or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees. Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary 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. In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Subsidiary Guarantee issued by any Subsidiary Guarantor shall be a senior obligation of such Subsidiary Guarantor and will be secured by a first-priority lien on the Non-Receivables Collateral and by a second-priority lien on the Shared Receivables Collateral. The Subsidiary Guarantees shall rank equally in right of payment with all existing and future Senior Indebtedness of the Subsidiary Guarantor but, to the extent of the value of the Collateral, will be effectively senior to all of the Subsidiary Guarantor’s unsecured Senior Indebtedness and Junior Lien Obligations and, to the extent of the Shared Receivables Collateral, will be effectively subordinated to the Subsidiary Guarantor’s Obligations under the ABL Facility and any future ABL Obligations. The Subsidiary Guarantees will be senior in right of payment to all existing and future Subordinated Indebtedness of each Subsidiary Guarantor. The Notes will be structurally subordinated to Indebtedness and other liabilities of Subsidiaries of the Issuer that do not Guarantee the Notes. Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. As used in this Section 12.01, the term “Trustee” shall also include each of the Paying Agent, Registrar and Transfer Agent, as applicable.
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Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged hereby acknowledges and agreed agrees that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are authenticated by the Trustee and delivered by the Trustee or the Operating Partnership that: (i) the principal of, and premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due, whether at Stated Maturity, upon acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, interest on overdue principal of, and overdue premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and or (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Indenture or under the Notes (including, without limitation, obligations to pay fees, expenses and or other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof of the Indenture and thereofthe Notes, and, in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall be duly and punctually paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption or otherwise, or duly and punctually performed, as the case may be, in accordance with the terms of the extension or renewal, subject, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof of the Indenture (collectivelysuch Section 1703 having been added to the Original Indenture by the Second Supplemental Indenture) and, in each case referred to above, on the “Subsidiary Guarantee Obligations”other terms and conditions set forth in Article Seventeen of the Indenture (such Article Seventeen having been added to the Original Indenture by the Second Supplemental Indenture). “Subject Without limitation to the provisions of this Article Seventeenforegoing, CRLP hereby agrees, to the extent permitted by applicable law, agrees that its Subsidiary Guarantee hereunder it shall be unconditionalbound by, irrespective and that it shall comply with and perform, all of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, obligations and agreements to be complied with and performed by CRLP under the extent permitted by applicable lawIndenture (including, that without limitation, Article Seventeen thereof) and under the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premiumGuarantees, if any, and interest on, endorsed on the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to certificates evidencing the Notes), or any amount paid by CRLP, to the Trustee or such Holder in respect of the Notes, the Subsidiary Guarantee of the Notes, to the extent theretofore discharged or released, shall, to the extent permitted by applicable law, be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, and (y) in the event of any acceleration of any such obligations as provided in Article Five hereof, the Subsidiary Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP for the purpose of the Subsidiary Guarantee.
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Samples: Second Supplemental Indenture (Mid-America Apartments, L.P.)
Subsidiary Guarantee. “The provisions Each Subsidiary that is a signatory hereto and each Subsidiary of the Company that in accordance with the terms of any Securities of a Series issued hereunder pursuant to any supplement indenture relating to such Securities is required to become party to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenturea guarantor (each, CRLP will be deemed to have acknowledged a "Guarantor"), hereby jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and severally unconditionally guarantees to each Holder Securityholder of Notes a Security of a Series that are is to be guaranteed and that has been authenticated by the Trustee and delivered by the Trustee irrespective of the validity or enforceability of this Indenture, the Securities or the Operating Partnership obligations of the Company under this Indenture or the Securities, that: (i) the principal of, and premium, if any, of and interest on, on the Notes shall Securities will be duly and punctually paid in full when due, whether at Stated Maturitythe maturity or interest payment or mandatory redemption date, upon by acceleration, upon call for redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest, if any, on the Securities and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to Securityholders or the Trustee hereunder and under this Indenture or the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall Securities will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof of this Indenture and thereof, and, the Securities; and (ii) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, the same shall they will be duly and punctually paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at maturity, howeverby acceleration or otherwise. Failing payment when due of any amount so guaranteed for whatever reason, in each case referred Guarantor will be obligated to above in pay the same whether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 6.2 hereof. Each Guarantor agrees that this paragraph, is a guarantee of payment not a guarantee of collection. Each Guarantor hereby agrees that its obligations with regard to the limitations set forth in Section 1703 hereof (collectively, the “this Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, to the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be joint and several and unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, to the Trustee or such Holder in respect of the Notes, the Subsidiary Guarantee of the Notes, to the extent theretofore discharged or released, shall, to the extent permitted by applicable law, be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, and (y) in the event of any acceleration of any such obligations as provided in Article Five hereof, the Subsidiary Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP for the purpose of the Subsidiary Guarantee.validity or
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Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 10, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are authenticated by a Note and to the Trustee and delivered by its successors and assigns, irrespective of the Trustee validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (ia) the principal of, and premium, if any, of and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturity, upon acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, interest due on overdue principal of, any Note Payment Date and overdue premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Subsidiary Guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of the this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
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Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 12, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Eighteenth Supplemental Indenture, the Notes or the Operating Partnership obligations of the Issuer hereunder or thereunder, that: (ia) the principal of, and premiuminterest, if any, and interest on, premium on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Issuer to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) or thereunder shall be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Eighteenth Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipIssuer, any right to require a proceeding first against the Operating Partnership Issuer, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and this Eighteenth Supplemental Indenture. Each Subsidiary Guarantor also agrees to pay any and all other costs and expenses provided for (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)12.01. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPIssuer, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Issuer or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees. Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary 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. In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Subsidiary Guarantee issued by any Subsidiary Guarantor shall be a senior obligation of such Subsidiary Guarantor and will be secured by a first-priority lien on the Non-Receivables Collateral and by a second-priority lien on the Shared Receivables Collateral. The Subsidiary Guarantees shall rank equally in right of payment with all existing and future Senior Indebtedness of the Subsidiary Guarantor but, to the extent of the value of the Collateral, will be effectively senior to all of the Subsidiary Guarantor’s unsecured Senior Indebtedness and Junior Lien Obligations and, to the extent of the Shared Receivables Collateral, will be effectively subordinated to the Subsidiary Guarantor’s Obligations under the ABL Facility and any future ABL Obligations. The Subsidiary Guarantees will be senior in right of payment to all existing and future Subordinated Indebtedness of each Subsidiary Guarantor. The Notes will be structurally subordinated to Indebtedness and other liabilities of Subsidiaries of the Issuer that do not Guarantee the Notes. Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. As used in this Section 12.01, the term “Trustee” shall also include each of the Paying Agent, Registrar and Transfer Agent, as applicable.
Appears in 1 contract
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are authenticated by the Trustee and delivered by the Trustee or the Operating Partnership that: (ia) the principal of, and premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due, whether at Stated Maturity, upon acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, interest on overdue principal of, and overdue premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall be duly and punctually paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption or otherwise, or duly and punctually performed, as the case may be, in accordance with the terms of the extension or renewal, subject, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectively, the “Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article SeventeenSection 2(b), CRLP hereby agreeseach Subsidiary Guarantor hereby, jointly and severally, absolutely, unconditionally and irrevocably, guarantees to the extent permitted by applicable lawAdministrative Agent, that its Subsidiary Guarantee hereunder shall be unconditional, irrespective for the ratable benefit of the validityAdministrative Agent and the Lenders and their respective successors, regularity indorsees, transferees and assigns, the prompt and complete payment and performance by the Borrower when due (whether at the stated maturity, by acceleration or enforceability otherwise) of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; Obligations.
(b) any defense that may arise by reason of the incapacity, lack of authority, death Anything herein or disability of in any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, to the Trustee or such Holder in respect of the Notes, the Subsidiary Guarantee of the Notes, to the extent theretofore discharged or released, shall, to the extent permitted by applicable law, be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture Loan Document to the contrary notwithstanding, the provisions maximum liability of this sentence each Subsidiary Guarantor hereunder and under the other Loan Documents shall survive in no event exceed the amount which can be guaranteed by such Subsidiary Guarantor under applicable federal and state laws relating to the insolvency of debtors.
(c) Each Subsidiary Guarantor further agrees to pay any releaseand all expenses (whether prejudgment or post-judgment and including, pursuant to Section 401 without limitation, all fees and disbursements of counsel) which may be paid or 402 incurred by the Administrative Agent or clause (iv) any Lender in enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or collecting, any or all of the last paragraph of Section 1018(C)Obligations and/or enforcing any rights with respect to, of CRLP’s or collecting against, such Subsidiary Guarantees of the Notes and of CRLP from its other obligations Guarantor under this Indenture with respect to the Notes and Subsidiary Guarantee. This Subsidiary Guarantee shall remain in full force and effect. CRLP agreeseffect until the Obligations are paid in full in cash and the Commitments are terminated, notwithstanding that from time to time prior thereto the extent permitted Borrower or any of them may be free from any Obligations.
(d) Each Subsidiary Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of such Subsidiary Guarantor hereunder without impairing this Subsidiary Guarantee or affecting the rights and remedies of the Administrative Agent or any Lender hereunder.
(e) No payment or payments made by applicable lawthe Borrower, that it any of the Subsidiary Guarantors, any other guarantor or any other Person or received or collected by the Administrative Agent or any Lender from the Borrower, any of the Subsidiary Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall not be entitled deemed to any right of subrogation in relation to modify, reduce, release or otherwise affect the Holders of Notes in respect liability of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereofGuarantor hereunder which shall, notwithstanding any stay, injunction such payment or payments other prohibition preventing than payments made by such acceleration Subsidiary Guarantor in respect of the Obligations or payments received or collected from such Subsidiary Guarantor in respect of the Obligations, remain liable for the Obligations up to the maximum liability of such Subsidiary Guarantor hereunder until the Obligations are paid in full in cash, the Commitments are terminated.
(f) Each Subsidiary Guarantor agrees that whenever, at any time, or from time to time, it shall make any payment to the Administrative Agent or any Lender on account of its liability hereunder, it will notify the Administrative Agent in writing that such payment is made under this Subsidiary Guarantee Obligations, and (y) in the event of any acceleration of any for such obligations as provided in Article Five hereof, the Subsidiary Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP for the purpose of the Subsidiary Guaranteepurpose.
Appears in 1 contract
Samples: Loan Agreement (Kimco Realty Corp)
Subsidiary Guarantee. “The provisions of (a) Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 10, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors shall, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully irrevocably and unconditionally guarantees guarantee to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (ia) the principal of, and premium, if any, and or interest on, on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, all other Obligations of the Notes Company to the Holders or the Trustee hereunder or thereunder shall be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection.
(b) The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or Indenture.
(yc) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause .
(ivd) of the last paragraph of Section 1018(C), of CRLP’s Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any nonpaying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees.
(e) Each Subsidiary 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, reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary 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 Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(g) Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
(h) All provisions set forth herein with respect to the Subsidiary Guarantees are subject to the Agreed Security Principles.
Appears in 1 contract
Samples: Indenture (Maxar Technologies Inc.)
Subsidiary Guarantee. “The provisions Each of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (ia) the principal of, and premium, if any, of and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall principal of and interest on the Notes will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors will be jointly and severally obligated to pay the same immediately. “Subject to the provisions of this Article Seventeen, CRLP The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Subsidiary Guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership Company or CRLPSubsidiary Guarantors, or any trustee Custodian, Trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPSubsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, such entity to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 for the purposes of the Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five hereof6, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.
Appears in 1 contract
Samples: Indenture (Df Special Holdings Corp)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 11, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees on a senior unsecured basis to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company under this Indenture or the Notes, that: (ia) the principal of, and premium, if any, of and interest on, on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturity, upon accelerationredemption, upon redemption by acceleration or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, and overdue premium, if any, premium and interest on, the Notes shall be duly Notes, if any, if lawful, and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of the Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under this Indenture or the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually promptly paid in full when due or duly and punctually promptly performed, as the case may be, all in accordance with the terms hereof of this Indenture and thereof, and, the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, howeverupon redemption, in by acceleration or otherwise. Failing payment when due of any amount so guaranteed or failing performance of any other obligation so guaranteed for whatever reason, each case referred Subsidiary Guarantor shall be obligated to above in this paragraphpay, or to perform or cause the limitations set forth in Section 1703 hereof (collectivelyperformance of, the “same immediately. Each Subsidiary Guarantee Obligations”)Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. “Subject to Each of the provisions of this Article Seventeen, CRLP Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agrees that its Subsidiary Guarantee obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any thereofprovisions of this Indenture or the Notes, the entry release of any other Subsidiary Guarantor, the recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Subsidiary Guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquisheswaives, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs this Indenture. Unless and expenses provided for under this Indenture or (y) as provided until released with respect to any Subsidiary Guarantor in accordance with Section 1018(C) or Article Four 11.04 of this Indenture (subject Indenture, this Subsidiary Guarantee shall remain in full force and effect and continue to survival 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 certain obligations creditors or should a custodian, trustee, liquidator or other similar official be appointed for all or any part of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Company’s assets. “If any Holder of the Notes or the Trustee is required by any court or Governmental Authority or is otherwise required to return to either the Operating Partnership or CRLPCompany, any Subsidiary Guarantor or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPsuch Subsidiary Guarantor, any amount paid by the Operating Partnership (at any time while a Company or such Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, Guarantor to the Trustee or such Holder in respect of the NotesHolder, the Notes and this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture . Each Subsidiary Guarantor further agrees (to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the fullest extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, ) that, as between it, on the one hand, and the Holders of the Notes and the Trustee, on the other hand, (xa) subject to this Article 11, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (yb) in the event of any acceleration of any such obligations as provided in Article Five hereof6, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of the this Subsidiary Guarantee.
Appears in 1 contract
Samples: Indenture (Service Properties Trust)
Subsidiary Guarantee. “The provisions of (a) Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 13, the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees guarantees, on a senior unsecured basis, to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this First Supplemental Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (i) the principal of, and premium, if any, and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, and overdue premium, if any, and interest onon the Notes, if any, if lawful (subject in all cases to any applicable grace period provided herein), and all other monetary obligations of the Notes shall Company to the Holders or the Trustee hereunder or thereunder will be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, howeverby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, in each case referred the Subsidiary Guarantor shall be obligated to above in pay the same immediately. The Subsidiary Guarantor agrees that this paragraphis a guarantee of payment and not a guarantee of collection.
(b) The Subsidiary Guarantor agrees that, to the limitations set forth in Section 1703 hereof (collectively, the “Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, to the maximum extent permitted by under applicable law, that its Subsidiary Guarantee obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this First Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Guarantor. The Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) Guarantor waives diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or First Supplemental Indenture.
(yc) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantor or any trustee custodian, trustee, liquidator or other similar official acting in relation to either of the Operating Partnership Company or CRLPthe Subsidiary Guarantor, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause .
(ivd) of the last paragraph of Section 1018(C), of CRLP’s The Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. The Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantor, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereofof the Base Indenture as amended by this First Supplemental Indenture for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five hereofof the Base Indenture as amended by this First Supplemental Indenture, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantor for the purpose of the this Subsidiary Guarantee.
Appears in 1 contract
Samples: First Supplemental Indenture (Goodrich Petroleum Corp)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture10, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP Guarantors hereby fully and unconditionally guarantees guarantee to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee or and to the Operating Partnership thatTrustee and its successors and assigns: (ia) the due and punctual payment of the principal of, and premium, if any, and interest onon the Notes, the Notes shall be duly and punctually paid in full when duesubject to any applicable grace period, whether at Stated Maturity, upon by acceleration, upon redemption or otherwise; (ii) , the due and punctual payment of interest on the overdue principal of and premium, if any, and, to the extent permitted by applicable law, interest on overdue principal ofinterest, and overdue premium, if any, the due and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) punctual performance of all other obligations of the Operating Partnership Company to the Holders of Notes or the Trustee under this Indenture and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, howeverby acceleration pursuant to Section 6.02, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyredemption or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. Each Guarantor hereby agrees that its obligations with regard to the provisions of this Article Seventeen, CRLP hereby agrees, to the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be joint and several, unconditional, irrespective of the validity, regularity validity or enforceability of the Notes or the obligations of the Company under this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry recovery of any judgment against the Operating PartnershipCompany or any other obligor with respect to this Indenture, the Notes or the Obligations of the Company under this Indenture or the Notes, any action to enforce the same or any other circumstance circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of CRLPa Guarantor. CRLP hereby waives and relinquishesEach Guarantor further, to the extent permitted by law, waives and relinquishes all claims, rights and remedies accorded by applicable lawlaw to guarantors and agrees not to assert or take advantage of any such claims, rights or remedies, including but not limited to: (a) any right to require any of the Trustee, the Holders of Notes or the Operating Partnership Company (each, each a “Subsidiary Guarantee Benefited Party”), as a condition of payment or performance by such Guarantor, to (1) to proceed against the Operating Partnership Company, any other guarantor (including any other Guarantor) of the Obligations under the Subsidiary Guarantees or any other Person or to Person, (2) proceed against or exhaust any security held by a Subsidiary Guarantee from the Company, any such other guarantor or any other Person, (3) proceed against or have resort to any balance of any deposit account or credit on the books of any Benefited Party at in favor of the Company or any time other Person, or to (4) pursue any other remedy in the power of any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLPParty whatsoever; (b) any defense that may arise arising by reason of the incapacity, lack of authorityauthority or any disability or other defense of the Company including any defense based on or arising out of the lack of validity or the unenforceability of the Obligations under the Subsidiary Guarantees or any agreement or instrument relating thereto or by reason of the cessation of the liability of the Company from any cause other
(1) any principles or provisions of law, death statutory or disability otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any other Person or Persons statute of limitations affecting such Guarantor’s liability hereunder or the failure of a Subsidiary Guarantee enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party to file protect, secure, perfect or enforce a claim against the estate (in administration, bankruptcy insure any security interest or lien or any other proceeding) of any other Person or Personsproperty subject thereto; (cf) diligencenotices, presentmentdemands, the filing presentations, protests, notices of claims with any court in the event protest, notices of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership dishonor and any demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or notices of any action or non-action on inaction, including acceptance of the part Subsidiary Guarantees, notices of CRLP, Default under the Operating Partnership, any other Subsidiary Guarantee Benefited Party Notes or any creditor of CRLP agreement or the Operating Partnership or on the part instrument related thereto, notices of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Partyrenewal, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute extension or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that modification of the principal; (f) any defense arising because of a Obligations under the Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (Guarantees or any successor provision agreement related thereto) , and notices of any extension of credit to the Bankruptcy CodeCompany and any right to consent to any thereof; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by under applicable law, the benefits of any “One Action” rule and (h) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance of the obligations contained in full of all its Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such Subsidiary Guarantee Obligationsobligations guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereofSection 6.02 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, obligations guaranteed hereby and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five Section 6.02 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.
Appears in 1 contract
Samples: Indenture (Centene Corp)
Subsidiary Guarantee. “The provisions Each Subsidiary of the Company that, in accordance with the terms of any Securities of a Series issued hereunder pursuant to any supplemental indenture relating to such Securities, is required to become party to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenturea guarantor (each, CRLP will be deemed to have acknowledged a "Guarantor"), hereby, jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes a Security of a Series that are is to be guaranteed and that has been authenticated by the Trustee 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 Operating Partnership obligations of the Company hereunder or thereunder, that: (ia) the principal of, and premium, if any, and interest oninterest, if any, on the Notes shall Securities will be duly and punctually promptly paid by the Company in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, and overdue premium, if any, and interest oninterest, if any, on the Notes shall be duly Securities, if lawful, and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under or thereunder will be promptly paid by the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid Company in full when due or duly and punctually performed, as performed by the case may beCompany, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, that same will be promptly paid by the same shall be duly and punctually paid Company in full when due, whether at due or performed by the Stated Maturity, by acceleration, call for redemption or otherwise, or duly and punctually performed, as the case may be, Company in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, by acceleration or otherwise. Failing payment when due by the Company of any amount so guaranteed or any performance so guaranteed which failure continues for three days after demand therefor is made to the limitations set forth in Section 1703 hereof (collectivelyCompany for whatever reason, the “Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor who executes a Subsidiary Guarantee Obligations”)hereunder agrees that this is a guarantee of payment and not a guarantee of collection. “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, to the extent permitted by applicable law, Each Guarantor who executes a Subsidiary Guarantee hereunder agrees that its Subsidiary Guarantee obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes the Securities with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Guarantor. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by Each Guarantor who executes a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) hereunder waives diligence, presentment, demand of payment (except as specifically provided in the preceding paragraph), filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest and notice of any kind all demands (except as expressly required by specifically provided in the preceding paragraph) whatsoever and covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, obligations contained in the Securities and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Guarantor who executes a Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantee hereunder agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes Holders, in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby, until payment in full and performance of all such obligations guaranteed hereby. Each Guarantor who executes a Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, hereunder further agrees that, as between itthe Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated accelerated, as provided in Article Five hereofVI hereof or as may be provided in any supplemental indenture hereto, for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five hereofVI hereof or as may be provided in any supplemental indenture hereto, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Guarantors for the purpose of the this Subsidiary Guarantee, failing payment when due by the Company which failure continues for three days after demand therefor is made to the Company. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Subsidiary Guarantee. “The provisions of (a) Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture10, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: :
(i1) the principal of, premium and premiumSpecial Interest, if any, and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, ; and,
(2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantor will be obligated to pay the same immediately. “Subject to the provisions The Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection.
(b) The Guarantor hereby agrees, to the extent permitted by applicable law, agrees that its Subsidiary Guarantee obligations hereunder shall be are unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP The Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or Indenture.
(yc) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Guarantor or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Guarantor, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, will be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause .
(ivd) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, The Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such Subsidiary Guarantee Obligationsobligations guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, The Guarantor further agrees that, as between itthe Guarantor, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y2) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall will forthwith become due and payable by CRLP the Guarantor for the purpose of the this Subsidiary Guarantee.
Appears in 1 contract
Samples: Indenture (Fort James Corp)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution 11, each of any such Subsidiary Guarantee Supplemental Indenturethe Guarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (ia) the principal of, and premium, if any, of and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such Subsidiary Guarantee Obligationsobligations guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.
Appears in 1 contract
Samples: Indenture (Clean Towel Service Inc)
Subsidiary Guarantee. “The provisions Subject to Section 11.06 hereof, each of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenturethe Guaranteeing Subsidiaries hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee or and to the Operating Partnership Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes and the Obligations of the Company hereunder and thereunder, that: :
(ia) the principal of, and premium, if any, interest and interest onLiquidated Damages, if any, on the Notes shall will be duly and punctually promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; , and interest on the overdue principal, premium, if any (ii) to the extent permitted by applicable law), interest on overdue principal of, and overdue premiumany interest, if any, and interest onLiquidated Damages, if any, on the Notes shall Notes, and all other payment Obligations of the Company to the Holders or the Trustee hereunder or thereunder will be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, ; and,
(b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectsubject to any applicable grace period, howeverwhether at stated maturity, by acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason the 78 87 Guaranteeing Subsidiaries will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the Obligations of the Guaranteeing Subsidiaries hereunder in each case referred to above in this paragraph, the same manner and to the limitations set forth in Section 1703 hereof (collectively, same extent as the “Subsidiary Guarantee Obligations”)Obligations of the Company. “Subject to the provisions of this Article Seventeen, CRLP The Guaranteeing Subsidiaries hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Guaranteeing Subsidiary. CRLP Each Guaranteeing Subsidiary hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, Obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Guaranteeing Subsidiaries, or any trustee Note Custodian, Trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Guaranteeing Subsidiaries, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, to either the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Guaranteeing Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, and (y) in the event of any acceleration of any such obligations as provided in Article Five hereof, the Subsidiary Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP for the purpose of the Subsidiary GuaranteeGuaranteed hereby.
Appears in 1 contract
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 10, the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP Guarantors hereby fully and unconditionally guarantees guarantee to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee or and to the Operating Partnership thatTrustee and its successors and assigns: (ia) the due and punctual payment of the principal of, and premium, if any, and interest onon the Notes, the Notes shall be duly and punctually paid in full when duesubject to any applicable grace period, whether at Stated Maturity, upon by acceleration, upon redemption or otherwise; (ii) , the due and punctual payment of interest on the overdue principal of and premium, if any, and, to the extent permitted by applicable law, interest on overdue principal ofinterest, and overdue premium, if any, the due and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) punctual performance of all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under this Indenture, the Notes (including, without limitation, obligations to pay fees, expenses and Registration Rights Agreement or any other charges) shall be duly and punctually paid in full when due agreement with or duly and punctually performed, as for the case may bebenefit of the Holders or the Trustee, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, howeverby acceleration pursuant to Section 6.02, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyredemption or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. Each Subsidiary Guarantor hereby agrees that its obligations with regard to the provisions of this Article Seventeen, CRLP hereby agrees, to the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be joint and several, unconditional, irrespective of the validity, regularity validity or enforceability of the Notes or the obligations of the Company under this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry recovery of any judgment against the Operating PartnershipCompany or any other obligor with respect to this Indenture, the Notes or the Obligations of the Company under this Indenture or the Notes, any action to enforce the same or any other circumstance circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of CRLPa Subsidiary Guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under in this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, and (y) in the event of any acceleration of any such obligations as provided in Article Five hereof, the Subsidiary Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP for the purpose of the Subsidiary Guarantee.guaranteed
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Subsidiary Guarantee. “The provisions of (a) Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Article 13, the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: :
(i) the principal of, and premiumof (including the Fundamental Change Repurchase Price or the Redemption Price, if anyapplicable), premium and interest on, the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon acceleration, upon redemption by acceleration or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations the payment and/or delivery of the cash, shares of Common Stock or combination thereof due upon conversion of the Notes) of the Company to pay feesthe Holders or the Trustee hereunder or thereunder (together, expenses and other chargesthe “Guaranteed Obligations”) shall will be duly and punctually promptly paid in full when due or duly and punctually performedand/or otherwise satisfied, as the case may be, in full, all in accordance with the terms hereof and thereof, ; and,
(ii) in case of any extension of time of payment and/or delivery or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption or otherwise, or duly and punctually performedand/or otherwise satisfied, as the case may be, in full when due in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, howeverby acceleration or otherwise. Failing payment and/or delivery, in each as the case referred to above in this paragraphmay be, to the limitations set forth in Section 1703 hereof (collectivelywhen due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, to the extent permitted by applicable law, that its Subsidiary Guarantee hereunder Guarantor shall be unconditionalobligated to pay and/or deliver, irrespective of as the validity, regularity or enforceability of the Notes or of this Indenturecase may be, the absence same immediately. The Subsidiary Guarantor agrees that this is a guarantee of any action to enforce payment and/or delivery, as the samecase may be, any waiver or consent by any Holder and not a guarantee of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; collection.
(b) The Subsidiary Guarantor waives any defense that may arise by reason and all notice of the incapacitycreation, lack of authorityrenewal, death extension or disability accrual of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest Guaranteed Obligations and notice of any kind (except as expressly required or proof of reliance by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, to the Trustee or such any Holder upon the guarantee contained in respect this Article 13 or acceptance of the Notesguarantee contained in this Article 13; the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in this Article 13; and all dealings between the Company and the Subsidiary Guarantee of the Notes, to the extent theretofore discharged or released, shall, to the extent permitted by applicable law, be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, that, as between itGuarantor, on the one hand, and the Holders of Notes Trustee and the TrusteeHolders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this Article 13. The Subsidiary Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Company or the Subsidiary Guarantor with respect to the Guaranteed Obligations. The Subsidiary Guarantor understands and agrees that the guarantee contained in this Article 13 shall be construed as a continuing, absolute and unconditional guarantee of payment and performance without regard to (xa) the maturity validity or enforceability of this Indenture or the Notes, (b) any defense, set-off or counterclaim (other than a defense of payment or performance in full of all Guaranteed Obligations) which may at any time be available to or be asserted by the Company or any other Person against any Holder, provided that nothing prevents the assertion of any such claim by separate suit or compulsory counterclaim, or (c) any other circumstance whatsoever (with or without notice to or knowledge of the obligations guaranteed hereby may Company or the Subsidiary Guarantor) which constitutes, or might be accelerated as provided in Article Five hereofconstrued to constitute, notwithstanding any stayan equitable or legal discharge of the Company for the Guaranteed Obligations, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee ObligationsGuarantor under the guarantee contained in this Article 13, and (y) in bankruptcy or in any other instance other than the event express written release of any acceleration of any such obligations as provided in Article Five hereof, the Subsidiary Guarantor from the Subsidiary Guarantee Obligations (whether pursuant to and to the extent set forth in Section 13.06. To the fullest extent permitted by applicable law, when making any demand hereunder or not due otherwise pursuing its rights and payable) remedies hereunder against the Subsidiary Guarantor, any Holder may, but shall forthwith become due be under no obligation to, make a similar demand on or otherwise pursue such rights and payable by CRLP remedies as it may have against the Company or any other Person or against any guarantee for the purpose Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Holder to make any such demand, to pursue such other rights or remedies or to collect any payments from the Company or any other Person or to realize upon any such guarantee or to exercise any such right of offset, or any release of the Company or any such guarantee or right of offset, shall not relieve the Subsidiary GuaranteeGuarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Holder against the Subsidiary Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Samples: Indenture (Jamf Holding Corp.)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 11, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (ia) the principal of, and premium, if any, of and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Subsidiary Guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of the Subsidiary Guarantee.this
Appears in 1 contract
Subsidiary Guarantee. “The provisions of (a) Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 13, the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees guarantees, on a senior unsecured basis, to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Third Supplemental Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (i) the principal of, and premium, if any, and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, and overdue premium, if any, and interest onon the Notes, if any, if lawful (subject in all cases to any applicable grace period provided herein), and all other monetary obligations of the Notes shall Company to the Holders or the Trustee hereunder or thereunder will be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, howeverby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, in each case referred the Subsidiary Guarantor shall be obligated to above in pay the same immediately. The Subsidiary Guarantor agrees that this paragraphis a guarantee of payment and not a guarantee of collection.
(b) The Subsidiary Guarantor agrees that, to the limitations set forth in Section 1703 hereof (collectively, the “Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, to the maximum extent permitted by under applicable law, that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Third Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Guarantor. The Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) Guarantor waives diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or Third Supplemental Indenture.
(yc) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantor or any trustee custodian, trustee, liquidator or other similar official acting in relation to either of the Operating Partnership Company or CRLPthe Subsidiary Guarantor, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause .
(ivd) of the last paragraph of Section 1018(C), of CRLP’s The Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. The Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantor, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof5 of the Base Indenture as amended by the Third Supplemental Indenture for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five hereof5 of the Base Indenture as amended by the Third Supplemental Indenture, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantor for the purpose of the this Subsidiary Guarantee.
Appears in 1 contract
Samples: Third Supplemental Indenture (Goodrich Petroleum Corp)
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject Subject to the provisions of this Article SeventeenXII, CRLP each Subsidiary Guarantor hereby fully jointly and severally unconditionally guarantees to each Holder of Notes that are a Security authenticated by the Trustee 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 Operating Partnership obligations of the Company or any other Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder, that: (ia) the principal of, and premium, if any, and interest on, on the Notes shall Securities will be duly and punctually paid in full when due, whether at Stated Maturitymaturity, upon acceleration, upon redemption by acceleration or otherwise; , and interest on the overdue principal and (ii) to the extent permitted by applicable law, interest on overdue principal of, and overdue premium) interest, if any, on the Securities and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company or the Subsidiary Guarantors to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder or thereunder (including fees or expenses) and under all other obligations with respect to the Notes (including, without limitation, obligations to pay fees, expenses Securities and other charges) shall this Indenture will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsSecurities, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, howeverby acceleration or otherwise. Failing payment when due of any amount so guaranteed, in each case referred to above in this paragraph, or failing performance of any other obligation of the Company to the limitations set forth in Section 1703 hereof (collectivelyHolders, for whatever reason, each Subsidiary Guarantor will be obligated to pay, or to perform or cause the performance of, the “same immediately. An Event of Default under this Indenture or the Securities shall constitute an event of default under this Subsidiary Guarantee Obligations”). “Subject Guarantee, and shall entitle the Holders of Securities to accelerate the obligations of the Subsidiary Guarantors hereunder in the same manner and to the provisions same extent as the obligations of this Article Seventeen, CRLP the Company. Each of the Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agrees that its Subsidiary Guarantee obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder holder of Notes the Securities with respect to any provisions hereof or thereof, any release of any other Subsidiary Guarantor, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same same, whether or not a Subsidiary Guarantee is affixed to any particular Security, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each of the Subsidiary Guarantors hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders benefit of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other cove- nants that its Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal ofobligations contained in the Securities, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of and this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Subsidiary Guarantee. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership Company or CRLPto any Subsidiary Guarantor, or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPsuch Subsidiary Guarantor, any amount paid by the Operating Partnership (at any time while a Company or such Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, Guarantor to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between it, on the one hand, and the Holders of Notes Securities and the Trustee, on the other hand, (xa) subject to this Article XII, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereofVI hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (yb) in the event of any acceleration of any such obligations as provided in Article Five VI hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. This Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company's assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities, whether as a "voidable preference," "fraudulent transfer" or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. No stockholder, officer, director, employer or incorporator, past, present or future, or any Subsidiary Guarantor, as such, shall have any personal liability under this Subsidiary Guarantee by reason of his, her or its status as such stockholder, officer, director, employer or incorporator. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under this Subsidiary Guarantee. Each Subsidiary Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is the intention of all such parties that the guarantee by each Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. To effectuate the foregoing intention, the Holders and each Subsidiary Guarantor hereby irrevocably agrees that the obligations of each Subsidiary Guarantor under the Subsidiary GuaranteeGuarantees shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of each Subsidiary Guarantor (including, but not limited to, the Guarantor Senior Indebtedness of each Subsidiary Guarantor) result in the obligations of each Subsidiary Guarantor under the Subsidiary Guarantees not constituting such fraudulent transfer or conveyance.
Appears in 1 contract
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution 11, each of any such Subsidiary Guarantee Supplemental Indenturethe Guarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership severally, unconditionally and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees irrevocably guarantee to each Holder of Notes that are a Security authenticated by the Trustee 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 Operating Partnership obligations of the Company hereunder or thereunder, that: (ia) the principal of, of and premium, if any, premium and interest on, on the Notes shall Securities will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to , and Interest on the extent permitted by applicable law, interest on overdue principal of, premium, and overdue premiumInterest on the Securities, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, thereof and (b) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. 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 Subsidiary Guarantee Obligations”)is a general unsecured obligation of such Guarantor and it is a guarantee of payment and not a guarantee of collection. “Subject to the provisions of this Article Seventeen, CRLP The Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes the Securities with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Guarantor. CRLP Each Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, obligations contained in the Securities and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Guarantors, any amount paid by the Operating Partnership (at any time while Company or a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, Guarantor either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such Subsidiary Guarantee Obligationsobligations guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under this Subsidiary Guarantee.
Appears in 1 contract
Samples: Indenture (Parker Drilling Co /De/)
Subsidiary Guarantee. “The provisions of (a) Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 10, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors shall, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully irrevocably and unconditionally guarantees guarantee to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (ia) the principal of, and premium, if any, and or interest on, on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, all other Obligations of the Notes Company to the Holders or the Trustee hereunder or thereunder shall be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection.
(b) The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and all other costs and expenses provided for under this Indenture or Indenture.
(yc) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause .
(ivd) of the last paragraph of Section 1018(C), of CRLP’s Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees.
(e) Each Subsidiary 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, reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary 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 Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(g) Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
(h) All provisions set forth herein with respect to the Subsidiary Guarantees are subject to the Agreed Security Principles.
Appears in 1 contract
Samples: Indenture (Maxar Technologies Inc.)
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture(a) For value received, CRLP will be deemed to have acknowledged each Guarantor hereby jointly and agreed that it receives substantial benefits from the Operating Partnership severally fully, unconditionally and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally absolutely guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee or and to the Operating Partnership that: (i) Trustee the due and punctual payment of the principal of, and premium, if any, and interest on, the Notes shall be duly and punctually paid in full when due, whether at Stated Maturity, upon acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, interest on overdue principal of, and overdue premiuminterest, if any, on the Notes and all other amounts due and payable under this Indenture and the Notes by the Company, when and as such principal, premium and interest onshall become due and payable, subject to any applicable grace period, whether at maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, this Indenture and, in the case of any extension of time of payment or renewal of any Notes or any of such other obligationsNotes, when the same shall be duly become due and punctually paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption or otherwise, or duly and punctually performed, as the case may be, payable in accordance with the terms of the extension or renewal, subjectsubject to any applicable grace period, howeverwhether at maturity or by declaration or acceleration, call for redemption or otherwise, in each case referred to above in this paragraphcase, subject to the limitations set forth in Section 1703 hereof 11.02.
(collectively, the “Subsidiary Guarantee Obligations”). “Subject b) Failing payment when due of any amount guaranteed pursuant to the provisions related Subsidiary Guarantee, for whatever reason, each of this Article Seventeen, CRLP the Guarantors will be jointly and severally obligated to pay the same immediately. Each of the Guarantors hereby agrees, to the extent permitted by applicable law, agrees that its Subsidiary Guarantee obligations hereunder shall be unconditionalfull, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Notes Notes, its Subsidiary Guarantee, the Subsidiary Guarantee of any other Guarantor or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany or any Guarantor, or any action to enforce the same or any other circumstance circumstances (other than payment) which might otherwise constitute a legal or equitable discharge or defense of CRLPthe Guarantors. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason Each of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court Guarantors hereby agrees that in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person default in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and or premium, if any, or interest on the Notes, whether at maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 7.06, by the Holders, on the terms and interest onconditions set forth in this Indenture, directly against such Guarantor to enforce such Subsidiary Guarantee without first proceeding against the Company or any other Guarantor.
(c) The obligations of each of the Guarantors under this Article XI shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Company or any of the Guarantors contained in the Notes and all or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Company, any of the Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other costs and expenses provided for statute or from the decision of any court, (iii) the assertion or exercise by the Company, any of the Guarantors or the Trustee of any rights or remedies under the Notes or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (yiv) the assignment or the purported assignment of any property as provided in Section 1018(Csecurity for the Notes, including all or any part of the rights of the Company or any of the Guarantors under this Indenture, (v) the extension of the time for payment by the Company or Article Four any of the Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Notes or this Indenture (subject to survival or of certain the time for performance by the Company or any of the Guarantors of any other obligations under or arising out of CRLP as provided in Section 1018(C), Article Four any such terms and the next succeeding paragraph). “If any Holder of Notes provisions or the Trustee is required by extension or the renewal of any court thereof, (vi) the modification or otherwise to return to either amendment (whether material or otherwise) of any duty, agreement or obligation of the Operating Partnership Company or CRLPany of the Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Company or any trustee of the Guarantors or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes)of their respective assets, or any amount paid by CRLP, to the Trustee or such Holder in respect disaffirmance of the Notes, the Subsidiary Guarantee Guarantees or this Indenture in any such proceeding, (viii) the release or discharge of the Company or any of the Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Notes, the related Subsidiary Guarantees or this Indenture or (x) any other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to the extent related Subsidiary Guarantees) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(d) Each of the Guarantors hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or any of the Guarantors, and all demands whatsoever and (ii) covenants that its Subsidiary Guarantee will not be discharged except by complete performance of such Subsidiary Guarantee. Each of the Guarantors further agrees that if at any time all or any part of any payment theretofore discharged applied by any Person to its Guarantee is, or releasedmust be, rescinded or returned for any reason whatsoever, including, without limitation, the insolvency, bankruptcy or reorganization of the Company or any of the Guarantors, such Subsidiary Guarantee shall, to the extent permitted by applicable lawthat such payment is or must be rescinded or returned, be reinstated deemed to have continued in full force existence notwithstanding such application, and effectsuch Subsidiary Guarantee shall continue to be effective or be reinstated, it being understood as the case may be, as though such application had not been made.
(e) Each of the Guarantors shall be subrogated to all rights of the Holders and agreed that, anything the Trustee against the Company in this Indenture respect of any amounts paid by such Guarantor pursuant to the contrary notwithstanding, the provisions of this sentence shall survive any releaseIndenture; provided, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable lawhowever, that it such Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation in relation to until all of the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided related Subsidiary Guarantees shall have been paid in Article Five hereof, notwithstanding any stay, injunction full or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, and (y) in the event of any acceleration of any such obligations as provided in Article Five hereof, the Subsidiary Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP for the purpose of the Subsidiary Guaranteedischarged.
Appears in 1 contract
Samples: Indenture (Bristow Group Inc.)
Subsidiary Guarantee. “The provisions of (a) Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 10, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (ia) the principal ofprincipal, interest, premium and premiumSpecial Interest, if any, and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection.
(b) The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.
(xc) by payment and performance in full The obligations of all the Subsidiary Guarantor under its Subsidiary Guarantee Obligations, including the payment in full are independent of the principal obligations guaranteed by such Subsidiary Guarantor hereunder, and a separate action or actions may be brought and prosecuted by the Trustee on behalf of, or by, the Holders, subject to the terms and premiumconditions set forth in this Indenture against a Subsidiary Guarantor to enforce the Subsidiary Guarantee, irrespective of whether any action is brought against the Company or whether the Company is joined in any such action or actions.
(d) The Subsidiary Guarantor hereby agrees that, in the event of a default in payment of principal (or premium and Special Interest, if any) or interest on a Note, and interest onwhether at its stated maturity, by acceleration, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four Holder of this Indenture (such Note, subject to survival the terms and conditions set forth in this Indenture, directly against each of certain obligations the Subsidiary Guarantors to enforce such Subsidiary Guarantor's Subsidiary Guarantee without first proceeding against the Company or any other Subsidiary Guarantor. The Subsidiary Guarantor agrees that if, after the occurrence and during the continuance of CRLP as provided in Section 1018(C)an Event of Default, Article Four the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Subsidiary Guarantor shall pay to the Trustee for the account of the Holder, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the next succeeding paragraph). “Trustee or any of the Holders.
(e) If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause .
(ivf) of the last paragraph of Section 1018(C), of CRLP’s Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five hereof6, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
(g) Each Subsidiary 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, reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company's assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary 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 Note shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. The form of Subsidiary Guarantee is attached hereto as Exhibit E.
(h) In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(i) The Subsidiary Guarantees will be general unsecured obligations of the Subsidiary GuaranteeGuarantors and will rank equally with all existing and future unsecured debt of the Subsidiary Guarantors that is not, by its terms, expressly subordinated in right of payment to the Subsidiary Guarantees. The Subsidiary Guarantees will be effectively subordinated to any existing and all future secured debt of the Subsidiary Guarantors to the extent of the assets securing such debt.
(j) Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
Appears in 1 contract
Samples: Indenture (Russel Metals Inc)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution 10, each of any such Subsidiary Guarantee Supplemental Indenturethe Guarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: (ia) the principal ofprincipal, interest, premium and premiumSpecial Interest, if any, and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment complete performance of the obligations contained in the Notes and performance in full this Indenture. The obligations of all the Guarantor under its Subsidiary Guarantee Obligations, including the payment in full are independent of the principal obligations guaranteed by such Guarantor hereunder, and a separate action or actions may be brought and prosecuted by the Trustee on behalf of, or by, the Holders, subject to the terms and premiumconditions set forth in this Indenture against a Guarantor to enforce the Subsidiary Guarantee, irrespective of whether any action is brought against the Company or whether the Company is joined in any such action or actions. The Guarantor hereby agrees that, in the event of a default in payment of principal (or premium and Special Interest, if any) or interest on a Note, and interest onwhether at its stated maturity, by acceleration, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four Holder of this Indenture (such Note, subject to survival the terms and conditions set forth in this Indenture, directly against each of certain obligations the Guarantors to enforce such Guarantor's Subsidiary Guarantee without first proceeding against the Company or any other Guarantor. The Guarantor agrees that if, after the occurrence and during the continuance of CRLP as provided in Section 1018(C)an Event of Default, Article Four the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holder, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the next succeeding paragraph)Trustee or any of the Holders. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such Subsidiary Guarantee Obligationsobligations guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Guarantors for the purpose of the this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee. Each Subsidiary 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, reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company's assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary 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 Note shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. The form of Subsidiary Guarantee is attached hereto as Exhibit E. In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Subsidiary Guarantee issued by any Guarantor shall be a general unsecured obligation of such Guarantor, ranking pari passu with any other future senior Indebtedness of such Guarantor, if any. Each payment to be made by a Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
Appears in 1 contract
Samples: Indenture (Ainsworth Lumber Co LTD)
Subsidiary Guarantee. “(a) The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership Obligations of the Company hereunder or thereunder, that: :
(i) the principal of, of and premiuminterest and Liquidated Damages, if any, and interest on, on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption redemption, repurchase or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest and Liquidated Damages, if any, on the Notes, if lawful, and interest on, all other Obligations of the Notes Company to the Holders or the Trustee hereunder or thereunder shall be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, ; and,
(ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, howeverby acceleration, in each case referred to above in this paragraphredemption, to the limitations set forth in Section 1703 hereof (collectivelyrepurchase or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”). “Subject Guarantor shall be obligated to pay the provisions of this Article Seventeen, CRLP same immediately.
(b) The Guarantor hereby agrees, to the extent permitted by applicable law, agrees that its Subsidiary Guarantee Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPthe Guarantor. CRLP The Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, Obligations contained in the Notes and all other costs and expenses provided for under this Indenture or Indenture.
(yc) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership Company or CRLPGuarantor, or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPGuarantor, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause .
(ivd) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, The Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations guaranteed hereby until payment in full and performance of all such Subsidiary Guarantee ObligationsObligations guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, The Guarantor further agrees that, as between itthe Guarantor, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x1) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, Obligations guaranteed hereby and (y2) in the event of any declaration of acceleration of any such obligations Obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee such Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Guarantor for the purpose of this Subsidiary Guarantee. If any Restricted Subsidiary executes a Subsidiary Guarantee pursuant to Section 4.08, the Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees.
Appears in 1 contract
Subsidiary Guarantee. “The provisions Subject to Section 11.06 hereof, each of this Article Seventeen shall not become effective until such time as CRLP shall have entered into the Subsidiary Guarantors hereby, on a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenturefull, CRLP will be deemed to have acknowledged unconditional, joint and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseveral, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally unsecured basis guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee or and to the Operating Partnership Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes and the Obligations of the Company hereunder and thereunder, that: (ia) the principal of, and premium, if any, interest and interest onLiquidated Damages, if any, on the Notes shall will be duly and punctually promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; , and interest on the overdue principal, premium, if any, (ii) to the extent permitted by applicable law, ) interest on overdue principal of, and overdue premiumany interest, if any, and interest onLiquidated Damages, if any, on the Notes shall Notes, and all other payment Obligations of the Company to the Holders or the Trustee hereunder or thereunder will be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectsubject to any applicable grace period, howeverwhether at stated maturity, by acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed for whatever reason the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the Obligations of the Subsidiary Guarantors hereunder in each case referred to above in this paragraph, the same manner and to the limitations set forth in Section 1703 hereof (collectively, same extent as the “Obligations of the Company. The Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Subsidiary Guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, Obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors, or any trustee Custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders of Notes in respect of any Obligations guaranteed hereby. Each Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee ObligationsObligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations Obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee such Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees.
Appears in 1 contract
Samples: Indenture (Jitney Jungle Stores of America Inc /Mi/)
Subsidiary Guarantee. “The provisions Subject to Section 11.06 and --------------------- Article 12 hereof, each of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenturethe Guarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Security authenticated by the Trustee and delivered by the Trustee or and to the Operating Partnership Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities and the Obligations of the Company hereunder and thereunder, that: (ia) the principal of, and premium, if any, interest and interest onLiquidated Damages, if any, on the Notes shall Securities will be duly and punctually promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; , and interest on the overdue principal, premium, if any, (ii) to the extent permitted by applicable law, ) interest on overdue principal of, and overdue premiumany interest, if any, and interest onLiquidated Damages, if any, on the Notes shall Securities, and all other payment Obligations of the Company to the Holders or the Trustee hereunder or thereunder will be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligationsObligations, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectsubject to any applicable grace period, howeverwhether at stated maturity, by acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed for whatever reason the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Securities shall constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the Obligations of the Guarantors hereunder in each case referred to above in this paragraph, the same manner and to the limitations set forth in Section 1703 hereof (collectively, same extent as the “Subsidiary Guarantee Obligations”)Obligations of the Company. “Subject to the provisions of this Article Seventeen, CRLP The Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Guarantor. CRLP Each Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival Section 11.04) except by complete performance of certain obligations of CRLP as provided the Obligations contained in Section 1018(C), Article Four the Securities and the next succeeding paragraph)this Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Guarantors, or any trustee Securities Custodian, Trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Each Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligationsguaranteed hereby. CRLP agrees, to the extent permitted by applicable law, Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee ObligationsObligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations Obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee such Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor and the Company so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees.
Appears in 1 contract
Samples: Indenture (Advance Auto Parts Inc)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 12, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Sixteenth Supplemental Indenture, the Notes or the Operating Partnership obligations of the Issuer hereunder or thereunder, that: (ia) the principal of, and premiuminterest, if any, and interest on, premium on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Issuer to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) or thereunder shall be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Sixteenth Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipIssuer, any right to require a proceeding first against the Operating Partnership Issuer, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and this Sixteenth Supplemental Indenture. Each Subsidiary Guarantor also agrees to pay any and all other costs and expenses provided for (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)12.01. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPIssuer, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Issuer or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees. Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary 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. In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Subsidiary Guarantee issued by any Subsidiary Guarantor shall be a senior obligation of such Subsidiary Guarantor and will be secured by a first-priority lien on the Non-Receivables Collateral and by a second-priority lien on the Shared Receivables Collateral. The Subsidiary Guarantees shall rank equally in right of payment with all existing and future Senior Indebtedness of the Subsidiary Guarantor but, to the extent of the value of the Collateral, will be effectively senior to all of the Subsidiary Guarantor’s unsecured Senior Indebtedness and Junior Lien Obligations and, to the extent of the Shared Receivables Collateral, will be effectively subordinated to the Subsidiary Guarantor’s Obligations under the ABL Facility and any future ABL Obligations. The Subsidiary Guarantees will be senior in right of payment to all existing and future Subordinated Indebtedness of each Subsidiary Guarantor. The Notes will be structurally subordinated to Indebtedness and other liabilities of Subsidiaries of the Issuer that do not Guarantee the Notes. Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. As used in this Section 12.01, the term “Trustee” shall also include each of the Paying Agent, Registrar and Transfer Agent, as applicable.
Appears in 1 contract
Subsidiary Guarantee. “The provisions of (a) Each Subsidiary that becomes a Subsidiary Guarantor pursuant to Section 4.15, if any, and subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureX, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company hereunder or thereunder, that: :
(i1) the principal of, and premium, if any, and interest oninterest, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, ; and,
(2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP payment and performance and not a Guarantee of collection.
(b) The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be are unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Subsidiary Guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, Obligations contained in the Notes and all other costs and expenses provided for under this Indenture or except in accordance with this Indenture.
(yc) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, will be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause .
(ivd) of the last paragraph of Section 1018(C), of CRLP’s Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations guaranteed hereby until payment in full and performance of all such Obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x1) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article Five hereofVI hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee ObligationsObligations guaranteed hereby, and (y2) in the event of any declaration of acceleration of any such obligations Obligations as provided in Article Five VI hereof, the Subsidiary Guarantee such Obligations (whether or not due and payable) shall will forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. Each Subsidiary Guarantor will have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.
Appears in 1 contract
Samples: First Supplemental Indenture (Paramount Resources LTD)
Subsidiary Guarantee. “The provisions of (a) Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution III, each of any such Subsidiary Guarantee Supplemental Indenturethe Guarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder the Administrative Agent and its successors and assigns, for the benefit of Notes that are authenticated by itself and the Trustee Lenders, irrespective of the validity and delivered by the Trustee enforceability of this Agreement or the Operating Partnership obligations of the Borrowers hereunder or thereunder, that: :
(i) the principal of, and premiumpremium or interest, if any, and interest on, the Notes shall Loans will be duly and punctually promptly paid in full when due, whether at Stated Maturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, and overdue premiumor premium or interest, if any, and interest on, the Notes shall be duly Loans, if lawful, and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Borrowers to the Holders of Notes and (solely insofar as it relates to Lenders or the Notes) to the Trustee Administrative Agent hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall or thereunder will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, ; and,
(ii) in case of any extension of time of payment or renewal of any Notes Loans or any of such other obligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at Stated Maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors will be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection.
(b) The Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be are unconditional, irrespective of the validity, regularity or enforceability of the Notes Loans or of this IndentureAgreement, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes Lender with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipBorrowers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa Guarantor. CRLP Each Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating Partnershipany Borrower, any right to require a proceeding first against the Operating Partnership Borrowers, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenant that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under obligations contained in this Indenture or Agreement.
(yc) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes Lender or the Trustee Administrative Agent is required by any court or otherwise to return to either the Operating Partnership or CRLPBorrowers, the Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Borrowers or CRLPthe Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect of them to the Notes), or any amount paid by CRLP, to the Trustee Administrative Agent or such Holder in respect of the NotesLender, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, will be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause .
(ivd) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Each Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders of Notes Lenders in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such Subsidiary Guarantee Obligationsobligations guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders of Notes Lenders and the TrusteeAdministrative Agent, on the other hand, (x1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereofVIII hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y2) in the event of any declaration of acceleration of any such obligations as provided in Article Five VIII hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall will forthwith become due and payable by CRLP the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Lenders under the Subsidiary Guarantee.
Appears in 1 contract
Samples: Term Loan and Guaranty Agreement (Par Pacific Holdings, Inc.)
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental Indenture, CRLP will be deemed to have acknowledged and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees guarantees, on an unsubordinated basis, as primary obligor and not merely as surety, to each Holder of Notes that are authenticated by the Securities and the Trustee the full and delivered by the Trustee or the Operating Partnership that: (i) the principal of, and premium, if any, and interest on, the Notes shall be duly and punctually paid in full punctual payment when due, whether at Stated Maturitymaturity, upon acceleration, upon redemption by acceleration or otherwise; , of the principal of and interest on the Securities and all other obligations and liabilities of the Company under this Indenture (iiincluding without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) (collectively, “Obligations”). The Subsidiary Guarantor further agrees (to the extent permitted by applicable law) that the Obligations may be extended or renewed, interest on overdue principal ofin whole or in part, without notice or further assent from it, and overdue premiumthat it will remain bound under this Article XIII notwithstanding any extension or renewal of any Obligation. The Subsidiary Guarantor waives presentation to, if any, demand of payment from and interest onprotest to the Company of any of the Obligations and also waives notice of protest for nonpayment. The Subsidiary Guarantor waives notice of any Default under the Securities or the Obligations. The Obligations of the Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes shall Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Obligations or any of them; or (e) any change in the ownership of the Company. The Subsidiary Guarantor further agrees that the Subsidiary Guarantee constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be duly and punctually paid in full when due; and (iii) all other had by any Holder to any security held for payment of the Obligations. The obligations of the Operating Partnership Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full or pursuant to Sections 13.02 and 13.03 hereof), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever (other than payment of the Obligations in full or pursuant to Sections 13.02 and 13.03 hereof) or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the Obligations of the Subsidiary Guarantor herein shall not be (to the Holders extent permitted by law) discharged or impaired or otherwise affected by the failure of Notes and (solely insofar any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of the Subsidiary Guarantor or would otherwise operate as it relates to a discharge of the Notes) to Subsidiary Guarantor as a matter of law or equity. The Subsidiary Guarantor agrees that the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) Subsidiary Guarantee shall be duly and punctually paid remain in full when due force and effect until payment in full of all the Obligations or duly and punctually performeduntil the Subsidiary Guarantor is released from the Subsidiary Guarantee upon the merger or the sale of all or substantially all the common stock or assets of the Subsidiary Guarantor in compliance with Section 13.02, or upon its release from the Subsidiary Guarantee pursuant to Section 13.03. The Subsidiary Guarantor further agrees that unless the Subsidiary Guarantee has been released pursuant to Section 13.02 or Section 13.03, the Subsidiary Guarantee herein shall continue to be effective or be reinstated, as the case may be, all in accordance with the terms hereof and if at any time payment, or any part thereof, and, of principal of or interest on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in case limitation of any extension other right which any Holder has at law or in equity against the Subsidiary Guarantor by virtue hereof, upon the failure of time of payment or renewal of any Notes or the Company to pay any of such other obligations, the Obligations when and as the same shall be duly and punctually paid in full when become due, whether at the Stated Maturitymaturity, by acceleration, call for redemption acceleration or otherwise, the Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or duly and punctually performed, as the case may because to be paid, in accordance with the terms of the extension or renewal, subject, however, in each case referred to above in this paragraphcash, to the limitations set forth in Section 1703 hereof (collectively, the “Subsidiary Guarantee Obligations”). “Subject Holders an amount equal to the provisions sum of this Article Seventeen, CRLP hereby agrees, to (i) the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be unconditional, irrespective unpaid amount of the validity, regularity or enforceability of the Notes or of this Indenture, the absence such Obligations then due and owing and (ii) without duplication of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Operating Partnership, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLP. CRLP hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the filing of claims with any court amounts included in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind preceding clause (except as expressly required by this Indenturei), accrued and unpaid interest (including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premiumAdditional Interest), if any, on such Obligations then due and interest on, the Notes and all other costs and expenses provided for under this Indenture or owing (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, to the Trustee or such Holder in respect of the Notes, the Subsidiary Guarantee of the Notes, but only to the extent theretofore discharged or released, shall, to the extent permitted not prohibited by applicable law, be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . The Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantor, on the one hand, and the Holders of Notes and the TrusteeHolders, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article Five hereofthis Indenture for the purposes of the Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of any such obligations as provided in Article Five hereofObligations, the Subsidiary Guarantee such Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantor for the purpose purposes of the Subsidiary Guarantee. The Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee in enforcing any rights under this Section 13.01.
Appears in 1 contract
Samples: Indenture (Newmont Usa LTD)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution 11, each of any such Subsidiary Guarantee Supplemental Indenturethe Guarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary severally, unconditionally Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Operating Partnership Obligations of the Company hereunder or thereunder, that: :
(i) the principal of, and premium, if any, of and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, all other Obligations of the Notes shall Company to the Holders or the Trustee hereunder or thereunder will be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, ; and,
(ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, the that same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a Guarantee Obligations”)of payment and not a guarantee of collection. “Subject to the provisions of this Article Seventeen, CRLP The Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demandall demands whatsoever and covenants that, protest and notice of any kind (except as expressly required by provided in this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other this Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, Obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect either to the Notes), or any amount paid by CRLP, to 106 113 the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations payments made hereunder until payment in full and performance of all such Subsidiary Guarantee ObligationsObligations Guaranteed hereby. CRLP agrees, to the extent permitted by applicable law, Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (xi) the maturity of the obligations guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under this Subsidiary Guarantee.
Appears in 1 contract
Samples: Indenture (Advancepcs Research LLC)
Subsidiary Guarantee. “The provisions of this Article Seventeen shall not become effective until such time as CRLP shall have entered into a Subject to Section 11.05 hereof, the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees guarantee to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee or and to the Operating Partnership Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes held thereby and the Obligations of the Company hereunder and thereunder, that: (ia) the principal of, of and interest and premium, if any, and interest on, on the Notes shall will be duly and punctually promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) , and interest on the overdue principal and to the extent permitted by applicable law, interest on any overdue principal ofinterest, on the Notes, and overdue premium, if any, and interest on, all other payment Obligations of the Notes shall Company to the Holders or the Trustee hereunder or thereunder will be duly and punctually promptly paid in full when due; and (iii) all other obligations of the Operating Partnership to the Holders of Notes and (solely insofar as it relates to the Notes) to the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, the same shall will be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption or otherwise, or duly and punctually performed, as the case may be, due in accordance with the terms of the extension or renewal, subjectsubject to any applicable grace period, howeverwhether at stated maturity, by acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the Obligations of the Subsidiary Guarantors hereunder in each case referred to above in this paragraph, the same manner and to the limitations set forth in Section 1703 hereof (collectively, same extent as the “Obligations of the Company. The Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipCompany, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipCompany, any right to require a proceeding first against the Operating Partnership Company, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall will not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, Obligations contained in the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)Indenture. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPCompany, the Subsidiary Guarantors, or any trustee Custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Company or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), Company or any amount paid by CRLP, Subsidiary Guarantor to the Trustee or such Holder in respect of the NotesHolder, the Subsidiary Guarantee of the NotesGuarantees, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders of Notes in respect of any Obligations guaranteed hereby. Each Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (xi) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of its Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee ObligationsObligations guaranteed thereby, and (yii) in the event of any declaration of acceleration of any such obligations Obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee such Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantor for the purpose of its Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees.
Appears in 1 contract
Samples: Indenture (Duane Reade Inc)
Subsidiary Guarantee. “The provisions Each Subsidiary that is a signatory hereto and each Restricted Subsidiary of this Article Seventeen shall not become effective until such time as CRLP shall have entered into the Company which in accordance with Section 4.13 hereof is required to guarantee the obligations of the Company under the Notes (each, a Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its "Guarantor"), upon execution of any such Subsidiary Guarantee Supplemental Indenturea supplemental indenture, CRLP will be deemed to have acknowledged hereby jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and severally unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee irrespective of the validity or enforceability of this Indenture, the Notes or the Operating Partnership obligations of the Company under this Indenture or the Notes, that: (i) the principal of, of and premiuminterest on and Liquidated Damages, if any, and interest on, with respect to the Notes shall will be duly and punctually paid in full when due, whether at Stated Maturitythe maturity or interest payment or mandatory redemption date, upon by acceleration, upon call for redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest, if any, and interest on, on the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Company to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under this Indenture or the Notes (including, without limitation, obligations to pay fees, expenses and other charges) shall will be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof of this Indenture and thereof, and, the Notes; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall they will be duly and punctually paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at maturity, howeverby acceleration or otherwise. Failing payment when due of any amount so guaranteed for whatever reason, in each case referred Guarantor will be obligated to above in pay the same whether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 6.02 hereof. Each Guarantor agrees that this paragraph, is a guarantee of payment not a guarantee of collection. Each Guarantor hereby agrees that its obligations with regard to the limitations set forth in Section 1703 hereof (collectively, the “this Subsidiary Guarantee Obligations”). “Subject to the provisions of this Article Seventeen, CRLP hereby agrees, to the extent permitted by applicable law, that its Subsidiary Guarantee hereunder shall be joint and several and unconditional, irrespective of the validity, regularity validity or enforceability of the Notes or the obligations of the Company under this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry recovery of any judgment against the Operating PartnershipCompany or any other obligor with respect to this Indenture, the Notes or the obligations of the Company under this Indenture or the Notes, any action to enforce the same or any other circumstance circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of CRLPa Guarantor. CRLP hereby waives and relinquishesEach Guarantor further, to the extent permitted by law, waives and relinquishes all claims, rights and remedies accorded by applicable lawlaw to guarantors and agrees not to assert or take advantage of any such claims, rights or remedies, including but not limited to: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership Company (each, a “Subsidiary Guarantee "Benefited Party”") to proceed against the Operating Partnership Company or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s 's power before proceeding against CRLPsuch Guarantor; (b) the defense of the statute of limitations in any action hereunder or in any action for the collection of any Indebtedness or the performance of any obligation hereby guaranteed; (c) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or PersonsPerson; (cd) diligence, presentment, the filing of claims with any court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution of the Operating Partnership, any right to require a proceeding first against the Operating Partnership and any demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness Indebtedness or obligation or of any action or non-action on the part of CRLPsuch Guarantor, the Operating PartnershipCompany, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, the Notes and all other costs and expenses provided for under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph). “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLP, or any trustee or similar official acting in relation to either the Operating Partnership or CRLP, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, to the Trustee or such Holder in respect of the Notes, the Subsidiary Guarantee of the Notes, to the extent theretofore discharged or released, shall, to the extent permitted by applicable law, be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations until payment in full and performance of all such Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligations, and (y) in the event of any acceleration of any such obligations as provided in Article Five hereof, the Subsidiary Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by CRLP for the purpose of the Subsidiary Guarantee.
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Samples: Indenture (Iron Mountain Inc /De)
Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 12, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Fifteenth Supplemental Indenture, the Notes or the Operating Partnership obligations of the Issuer hereunder or thereunder, that: (ia) the principal of, and premiuminterest, if any, and interest on, premium on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Issuer to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) or thereunder shall be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Fifteenth Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipIssuer, any right to require a proceeding first against the Operating Partnership Issuer, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and this Fifteenth Supplemental Indenture. Each Subsidiary Guarantor also agrees to pay any and all other costs and expenses provided for (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)12.01. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPIssuer, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Issuer or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees. Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary 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. In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Subsidiary Guarantee issued by any Subsidiary Guarantor shall be a senior obligation of such Subsidiary Guarantor and will be secured by a first-priority lien on the Non-Receivables Collateral and by a second-priority lien on the Shared Receivables Collateral. The Subsidiary Guarantees shall rank equally in right of payment with all existing and future Senior Indebtedness of the Subsidiary Guarantor but, to the extent of the value of the Collateral, will be effectively senior to all of the Subsidiary Guarantor’s unsecured Senior Indebtedness and Junior Lien Obligations and, to the extent of the Shared Receivables Collateral, will be effectively subordinated to the Subsidiary Guarantor’s Obligations under the ABL Facility and any future ABL Obligations. The Subsidiary Guarantees will be senior in right of payment to all existing and future Subordinated Indebtedness of each Subsidiary Guarantor. The Notes will be structurally subordinated to Indebtedness and other liabilities of Subsidiaries of the Issuer that do not Guarantee the Notes. Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. As used in this Section 12.01, the term “Trustee” shall also include each of the Paying Agent, Registrar and Transfer Agent, as applicable.
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Subsidiary Guarantee. “The provisions of Subject to this Article Seventeen shall not become effective until such time as CRLP shall have entered into a 12, each of the Subsidiary Guarantee Supplemental Indenture as contemplated by Section 1018. By its execution of any such Subsidiary Guarantee Supplemental IndentureGuarantors hereby, CRLP will be deemed to have acknowledged jointly and agreed that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable considerationseverally, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article Seventeen, CRLP hereby fully and unconditionally guarantees to each Holder of Notes that are a Note authenticated by the Trustee and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Twenty-Fourth Supplemental Indenture, the Notes or the Operating Partnership obligations of the Issuer hereunder or thereunder, that: (ia) the principal of, and premiuminterest, if any, and interest on, premium on the Notes shall be duly and punctually promptly paid in full when due, whether at Stated Maturitymaturity, upon by acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, and interest on the overdue principal of, of and overdue premiuminterest on the Notes, if any, if lawful, and interest on, the Notes shall be duly and punctually paid in full when due; and (iii) all other obligations of the Operating Partnership Issuer to the Holders of Notes and (solely insofar as it relates to the Notes) to or the Trustee hereunder and under the Notes (including, without limitation, obligations to pay fees, expenses and other charges) or thereunder shall be duly and punctually promptly paid in full when due or duly and punctually performed, as the case may be, all in accordance with the terms hereof and thereof, and, ; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the that same shall be duly and punctually promptly paid in full when due, whether at the Stated Maturity, by acceleration, call for redemption due or otherwise, or duly and punctually performed, as the case may be, performed in accordance with the terms of the extension or renewal, subjectwhether at stated maturity, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 hereof (collectivelyby acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Subsidiary Guarantee Obligations”)Guarantors shall be jointly and severally obligated to pay the same immediately. “Subject to the provisions Each Subsidiary Guarantor agrees that this is a guarantee of this Article Seventeen, CRLP payment and not a guarantee of collection. The Subsidiary Guarantors hereby agrees, to the extent permitted by applicable law, agree that its Subsidiary Guarantee their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or of this Twenty-Fourth Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the entry recovery of any judgment against the Operating PartnershipIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of CRLPa guarantor. CRLP Each Subsidiary Guarantor hereby waives and relinquishes, to the extent permitted by applicable law: (a) any right to require the Trustee, the Holders of Notes or the Operating Partnership (each, a “Subsidiary Guarantee Benefited Party”) to proceed against the Operating Partnership or any other Person or to proceed against or exhaust any security held by a Subsidiary Guarantee Benefited Party at any time or to pursue any other remedy in any Subsidiary Guarantee Benefited Party’s power before proceeding against CRLP; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Subsidiary Guarantee Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) diligence, presentment, the demand of payment, filing of claims with any a court in the event of a merger, consolidation, bankruptcy, insolvency or dissolution bankruptcy of the Operating PartnershipIssuer, any right to require a proceeding first against the Operating Partnership Issuer, protest, notice and any demand, protest all demands whatsoever and notice of any kind (except as expressly required by covenants that this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of CRLP, the Operating Partnership, any other Subsidiary Guarantee Benefited Party or any creditor of CRLP or the Operating Partnership or on the part of any other Person in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Subsidiary Guarantee Benefited Party, including but not limited to an election to proceed against CRLP for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Subsidiary Guarantee Benefited Party’s election of the application of Section 1111(b)(2) (or any successor provision thereto) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 (or any successor provision thereto) of the Bankruptcy Code. CRLP hereby covenants, to the extent permitted by applicable law, that the Subsidiary Guarantee of the Notes shall not be discharged except (x) by payment and complete performance in full of all Subsidiary Guarantee Obligations, including the payment in full of the principal of, and premium, if any, and interest on, obligations contained in the Notes and this Twenty-Fourth Supplemental Indenture. Each Subsidiary Guarantor also agrees to pay any and all other costs and expenses provided for (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Indenture or (y) as provided in Section 1018(C) or Article Four of this Indenture (subject to survival of certain obligations of CRLP as provided in Section 1018(C), Article Four and the next succeeding paragraph)12.01. “If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Operating Partnership or CRLPIssuer, the Subsidiary Guarantors or any trustee custodian, trustee, liquidator or other similar official acting in relation to either the Operating Partnership Issuer or CRLPthe Subsidiary Guarantors, any amount paid by the Operating Partnership (at any time while a Subsidiary Guarantee was in effect with respect to the Notes), or any amount paid by CRLP, either to the Trustee or such Holder in respect of the NotesHolder, the this Subsidiary Guarantee of the NotesGuarantee, to the extent theretofore discharged or releaseddischarged, shall, to the extent permitted by applicable law, shall be reinstated in full force and effect, it being understood and agreed that, anything in this Indenture to the contrary notwithstanding, the provisions of this sentence shall survive any release, pursuant to Section 401 or 402 or clause (iv) of the last paragraph of Section 1018(C), of CRLP’s . Each Subsidiary Guarantees of the Notes and of CRLP from its other obligations under this Indenture with respect to the Notes and remain in full force and effect. CRLP agrees, to the extent permitted by applicable law, Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any Subsidiary Guarantee Obligations obligations guaranteed hereby until payment in full and performance of all such obligations guaranteed hereby. Each Subsidiary Guarantee Obligations. CRLP agrees, to the extent permitted by applicable law, Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Subsidiary Guarantee Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of any such obligations as provided in Article Five 6 hereof, the Subsidiary Guarantee Obligations such obligations (whether or not due and payable) shall forthwith become due and payable by CRLP the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees. Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary 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. In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Subsidiary Guarantee issued by any Subsidiary Guarantor shall be a senior obligation of such Subsidiary Guarantor and will be secured by a first-priority lien on the Non-Receivables Collateral (other than certain pledged stock as described in Section 11.04(c)) and by a second-priority lien on the Shared Receivables Collateral. The Subsidiary Guarantees shall rank equally in right of payment with all existing and future Senior Indebtedness of the Subsidiary Guarantor but, to the extent of the value of the Collateral, will be effectively senior to all of the Subsidiary Guarantor’s unsecured Senior Indebtedness and Junior Lien Obligations and, to the extent of the Shared Receivables Collateral, will be effectively subordinated to the Subsidiary Guarantor’s Obligations under the ABL Facility and any future ABL Obligations. The Subsidiary Guarantees will be senior in right of payment to all existing and future Subordinated Indebtedness of each Subsidiary Guarantor. The Notes will be structurally subordinated to Indebtedness and other liabilities of Subsidiaries of the Issuer that do not Guarantee the Notes. Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. As used in this Section 12.01, the term “Trustee” shall also include each of the Paying Agent, Registrar and Transfer Agent, as applicable. Prior to a Ratings Event, within 30 days of any Restricted Subsidiary becoming a guarantor under the General Credit Facility, such Restricted Subsidiary shall become a guarantor of the Notes by executing and delivering a Supplemental Indenture in the form of Exhibit B hereto.
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