Subsidiary Guaranties. Subject to Section 10.01, each Subsidiary Guarantor hereby fully, unconditionally and irrevocably guarantees, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by (1) 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 (including any Subsidiary Guarantor) under this Indenture, the Securities or any other agreement or otherwise; (2) any extension or renewal of any thereof; (3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (4) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (6) except as set forth in Section 10.07, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Article 8 and Sections 10.03 and 10.07, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the 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 such Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity. Each Subsidiary Guarantor further agrees that its guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (A) the unpaid amount of such Guaranteed Obligations, (B) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (C) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations until payment in full of all monetary obligations of the Company under this Indenture and the Securities. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guaranty herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all amounts due to the Trustee pursuant to Section 7.07 and any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Section.
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Samples: Senior Indenture (Valmont Industries Inc), Senior Indenture (Valmont Group Pty LTD)
Subsidiary Guaranties. Subject to Section 10.01, each Subsidiary Guarantor hereby fully, unconditionally and irrevocably guarantees, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) The payment by the full Company of all amounts due with respect to the Notes and punctual payment the performance by the Company of principal of its obligations under this Agreement will be absolutely and interest on the Securities when dueunconditionally guaranteed by Modine Delaware LLC, whether at maturitya Delaware limited liability company, by accelerationModine Climate Systems Inc., by redemption or otherwisea Kentucky corporation, Thermacore International, Inc., a Pennsylvania corporation, Thermacore, Inc., a Pennsylvania corporation, Thermal Corp., a Delaware corporation, Modine, Inc., (formerly Modine Acquisition Corporation), a Delaware corporation, Mxxxxx Xxxxxxx, Inc., a Delaware corporation, Airedale Inc., a Delaware corporation, and all other monetary obligations of the Company under this Indenture and the Securities and Airedale North America, Inc., a Pennsylvania corporation (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities (all the foregoing being hereinafter collectively called together with any additional Subsidiary who delivers a guaranty pursuant to Section 9.8, the “Guaranteed ObligationsSubsidiary Guarantors”). Each Subsidiary Guarantor further agrees that ) pursuant to the Guaranteed Obligations guaranty agreement substantially in the form of Exhibit 2.2(a) attached hereto and made a part hereof (as the same may be amended, modified, extended or renewed, the “Subsidiary Guaranty”).
(b) The enforcement of the rights and benefits in whole respect of the Subsidiary Guaranty and the allocation of proceeds thereof shall be subject to an intercreditor agreement substantially in the form of Exhibit 2.2(b) attached hereto and made a part hereof (as the same may be amended, modified, extended or in partrenewed, without notice or further assent the “Intercreditor Agreement”).
(c) The holders of the Notes acknowledge and agree that such holders will discharge and release any Subsidiary Guarantor from the Subsidiary Guaranty to which it is a party pursuant to the written request of the Company, provided that (i) such Subsidiary Guarantor has been released and discharged as an obligor and guarantor under and in respect of all Debt of the Company and the Company so certifies to the holders of the Notes in a certificate which accompanies such request for release and discharge, such release is hereby conditioned upon the Company’s agreement that if, for any reason whatsoever, such Subsidiary Guarantor will remain bound thereafter becomes an obligor or guarantor under this Article 10 notwithstanding any extension or renewal and in respect of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation toDebt of the Company, demand of, payment from and protest then the Company shall contemporaneously provide written notice thereof to the Company of any holders of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Notes accompanied by an executed Subsidiary Guarantor waives notice of any default under the Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by (1) 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 (including any Subsidiary Guarantor) under this Indenture, the Securities or any other agreement or otherwise; (2) any extension or renewal of any thereof; (3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (4) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (6) except as set forth in Section 10.07, any change in the ownership Guaranty of such Subsidiary Guarantor. Each Subsidiary Guarantor further , and (ii) at the time of such release and discharge, the Company shall deliver a certificate of a Responsible Officer to the holders of the Notes to the effect that no Default or Event of Default exists.
(d) The Company agrees that its it will not, nor will it permit any Subsidiary Guaranty herein constitutes a guarantee or Affiliate to, directly or indirectly, pay or cause to be paid any consideration or remuneration, whether by way of paymentsupplemental or additional interest, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Article 8 and Sections 10.03 and 10.07, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful fee or otherwise, in the performance to any creditor of the obligations, Company or of any Subsidiary Guarantor as consideration for or as an inducement to the entering into by any other act such creditor of any release or thing or omission or delay to do discharge of any other act or thing which may or might in any manner or Subsidiary Guarantor with respect to any extent vary the risk of such Subsidiary Guarantor or would otherwise operate as a discharge liability of such Subsidiary Guarantor as a matter of law an obligor or equity. Each Subsidiary Guarantor further agrees that its guarantee herein shall continue to be effective guarantor under or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (A) the unpaid amount of such Guaranteed Obligations, (B) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (C) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations until payment in full of all monetary obligations Debt of the Company under this Indenture and the Securities. Each Subsidiary Guarantor further agrees thatCompany, as between itunless such consideration or remuneration is concurrently paid, on the one handsame terms, and ratably to the Holders and the Trustee, on the other hand, (i) the maturity Noteholders of all of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guaranty herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all amounts due to the Trustee pursuant to Section 7.07 and any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this SectionNotes then outstanding.
Appears in 1 contract
Subsidiary Guaranties. Subject to Section 10.01, each Each Subsidiary Guarantor hereby fully, unconditionally and irrevocably guaranteesGuaranties, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Securities 7⅛% Notes when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Securities 7⅛% Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities 7⅛% Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor Guarantor, and that such Subsidiary Guarantor will remain bound under this Article 10 XIV notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default Default under the Securities 7⅛% Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by (1a) 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 (including any Subsidiary Guarantor) under this Indenture, the Securities 7⅛% Notes or any other agreement or otherwise; (2b) any extension or renewal of any thereof; (3c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities 7⅛% Notes or any other agreement; (4d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor Guarantor of the Guaranteed Obligations; or (6f) except as set forth in Section 10.07, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty herein constitutes a guarantee Guarantee of payment, performance and compliance when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Upon the sale or other disposition of all of the Capital Stock of a Subsidiary Guarantor (other than to the Company or an Affiliate thereof) in compliance with Section 4.14, such Subsidiary Guarantor shall be released from all obligations under its Subsidiary Guaranty. Except as expressly set forth in Article 8 this Section 14.01 and Sections 10.03 4.18, 4.19 and 10.0711.02, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Securities 7⅛% Notes or any other agreement, by any waiver or modification of any thereof, by any defaultDefault, 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 Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity. Each Subsidiary Guarantor further agrees that its guarantee herein Subsidiary Guaranty 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (Ai) the unpaid amount of such Guaranteed Obligations, (Bii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (Ciii) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations until payment in full of all monetary obligations of the Company under this Indenture and the Securities. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (ix) the maturity of the Obligations Guaranteed Obligations hereby may be accelerated as provided in Article 6 VI for the purposes of such Subsidiary Guarantor’s Subsidiary Guaranty hereinGuaranty, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations Guaranteed Obligationshereby, and (iiy) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all amounts due to the Trustee pursuant to Section 7.07 and any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this SectionSection 14.01.
Appears in 1 contract
Subsidiary Guaranties. Subject to Section 10.01, each Each Subsidiary Guarantor hereby fully, unconditionally and irrevocably guaranteesGuarantees, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Securities 7⅞% Notes when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Securities 7⅞% Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities 7⅞% Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor Guarantor, and that such Subsidiary Guarantor will remain bound under this Article 10 XIV notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default Default under the Securities 7⅞% Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by (1a) 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 (including any Subsidiary Guarantor) under this Indenture, the Securities 7⅞% Notes or any other agreement or otherwise; (2b) any extension or renewal of any thereof; (3c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities 7⅞% Notes or any other agreement; (4d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor Guarantor of the Guaranteed Obligations; or (6f) except as set forth in Section 10.07, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty herein Guarantee constitutes a guarantee Guarantee of payment, performance and compliance when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Upon the sale or other disposition of all of the Capital Stock of a Subsidiary Guarantor (other than to the Company or an Affiliate thereof) in compliance with Section 4.14, such Subsidiary Guarantor shall be released from all obligations under its Subsidiary Guarantee. Except as expressly set forth in Article 8 this Section 14.01 and Sections 10.03 4.18, 4.19 and 10.0711.02, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Securities 7⅞% Notes or any other agreement, by any waiver or modification of any thereof, by any defaultDefault, 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 Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity. Each Subsidiary Guarantor further agrees that its guarantee herein 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (Ai) the unpaid amount of such Guaranteed Obligations, (Bii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (Ciii) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations until payment in full of all monetary obligations of the Company under this Indenture and the Securities. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (ix) the maturity of the Obligations Guaranteed Obligations hereby may be accelerated as provided in Article 6 VI for the purposes of such Subsidiary Guarantor’s Subsidiary Guaranty hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations Guaranteed Obligationshereby, and (iiy) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all amounts due to the Trustee pursuant to Section 7.07 and any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this SectionSection 14.01.
Appears in 1 contract
Subsidiary Guaranties. Subject to Section 10.01, each Each Subsidiary Guarantor hereby fully, unconditionally and irrevocably guaranteesGuarantees, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Securities 8⅞% Notes when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Securities 8⅞% Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities 8⅞% Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor Guarantor, and that such Subsidiary Guarantor will remain bound under this Article 10 XIV notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default Default under the Securities 8⅞% Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by (1a) 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 (including any Subsidiary Guarantor) under this Indenture, the Securities 8⅞% Notes or any other agreement or otherwise; (2b) any extension or renewal of any thereof; (3c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities 8⅞% Notes or any other agreement; (4d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor Guarantor of the Guaranteed Obligations; or (6f) except as set forth in Section 10.07, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty herein constitutes a guarantee Guarantee of payment, performance and compliance when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Upon the sale or other disposition of all of the Capital Stock of a Subsidiary Guarantor (other than to the Company or an Affiliate thereof) in compliance with Section 4.14, such Subsidiary Guarantor shall be released from all obligations under its Subsidiary Guaranty. Except as expressly set forth in Article 8 this Section 14.01 and Sections 10.03 4.18, 4.19 and 10.0711.02, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Securities 8⅞% Notes or any other agreement, by any waiver or modification of any thereof, by any defaultDefault, 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 Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity. Each Subsidiary Guarantor further agrees that its guarantee herein Subsidiary Guaranty 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (Ai) the unpaid amount of such Guaranteed Obligations, (Bii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (Ciii) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations until payment in full of all monetary obligations of the Company under this Indenture and the Securities. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (ix) the maturity of the Obligations Guaranteed Obligations hereby may be accelerated as provided in Article 6 VI for the purposes of such Subsidiary Guarantor’s Subsidiary Guaranty hereinGuaranty, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations Guaranteed Obligationshereby, and (iiy) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all amounts due to the Trustee pursuant to Section 7.07 and any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this SectionSection 14.01.
Appears in 1 contract
Subsidiary Guaranties. Subject to Section 10.01, each Subsidiary Guarantor hereby fully, unconditionally and irrevocably guarantees, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual The payment of principal of and interest on the Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company of all amounts due with respect to the Notes and the performance by the Company of its obligations under this Indenture Agreement will be absolutely and unconditionally guaranteed by the Securities and entities identified on Schedule 2.3 (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities (all the foregoing being hereinafter collectively called together with any additional Subsidiary who delivers a guaranty pursuant to Section 9.7, the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that Guarantors") pursuant to the Guaranteed Obligations guaranty agreement substantially in the form of Exhibit 2.3(a) attached hereto and made a part hereof (as the same may be amended, modified, extended or renewed, in whole or in partthe “Subsidiary Guaranty").
(b) The holders of the Notes acknowledge and agree that such holders will discharge and release any Subsidiary Guarantor from the Subsidiary Guaranty to which it is a party pursuant to the written request of the Company, without notice or further assent from provided that (i) either (1) such Subsidiary Guarantor has been released and that such Subsidiary Guarantor will remain bound discharged as an obligor, borrower and guarantor under this Article 10 notwithstanding any extension and in respect of all Indebtedness or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by (1) 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 (including any Subsidiary Guarantor) under this Indenture, the Securities or any other agreement or otherwise; (2) any extension or renewal of any thereof; (3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (4) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (6) except as set forth in Section 10.07, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Article 8 and Sections 10.03 and 10.07, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the 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 such Subsidiary Guarantor or would otherwise operate as a discharge liability of such Subsidiary Guarantor as a matter of law obligor, borrower or equity. Each Subsidiary Guarantor further agrees that its guarantee herein shall continue to be effective or be reinstatedguarantor, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (A) the unpaid amount of such Guaranteed Obligations, (B) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (C) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations until payment in full all such Indebtedness is at the time of all monetary obligations of the Company under this Indenture discharge and the Securities. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes release of such Subsidiary Guarantor’s Subsidiary Guaranty hereinincurred within the limitations of Section 10.3, notwithstanding any stayand, injunction or other prohibition preventing such acceleration in respect either event, the Company so certifies to the holders of the Guaranteed ObligationsNotes in a certificate which accompanies such request for release and discharge, which certificate shall also include information in reasonable detail to show compliance with Section 10.3 if such release and discharge is requested pursuant to clause (2), and (ii) in at the event time of such release and discharge, the Company shall deliver a certificate of a Responsible Officer to the holders of the Notes to the effect that no Default or Event of Default exists.
(c) The Trust and the Company agree that they will not, nor will they permit any Subsidiary or Affiliate to, directly or indirectly, pay or cause to be paid any consideration or remuneration, whether by way of supplemental or additional interest, fee or otherwise, to any creditor of the Trust or the Company or of any declaration Subsidiary Guarantor as consideration for or as an inducement to the entering into by any such creditor of acceleration any release or discharge of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by any Subsidiary Guarantor with respect to any liability of such Subsidiary Guarantor for as an obligor or guarantor under or in respect of Indebtedness of the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all amounts due Trust or the Company, unless such consideration or remuneration is concurrently paid, on the same terms, ratably to the Trustee pursuant to Section 7.07 and any and holders of all costs and expenses (including reasonable attorneys’ fees) incurred by of the Trustee or any Holder in enforcing any rights under this SectionNotes then outstanding.
Appears in 1 contract
Samples: Note Purchase Agreement (First Potomac Realty Trust)
Subsidiary Guaranties. Subject to Section 10.01, each Each Subsidiary Guarantor hereby fully, unconditionally and irrevocably guarantees, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities (all the foregoing being hereinafter collectively called the “"Guaranteed Obligations”"). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 11 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by (1a) 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 (including any Subsidiary Guarantor) under this Indenture, the Securities or any other agreement or otherwise; (2b) any extension or renewal of any thereof; (3c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (4d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (6f) except as set forth in Section 10.0711.07, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Each Subsidiary Guaranty is, to the extent and in the manner set forth in Article 12, subordinated and subject in right of payment to the prior payment in full in cash of the principal of and premium, if any, and interest on all Senior Indebtedness of the Subsidiary Guarantor giving such Subsidiary Guaranty and each Subsidiary Guaranty is made subject to such provisions of this Indenture. Except as expressly set forth in Article 8 Sections 8.01(b), 11.03 and Sections 10.03 and 10.0711.07, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations Obligations, the Indenture, the Securities or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the 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 such Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity. Each Subsidiary Guarantor further agrees that its guarantee Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (A1) the unpaid amount of such Guaranteed Obligations, (B2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (C3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all monetary Guaranteed Obligations and all obligations of to which the Company under this Indenture and the SecuritiesGuaranteed Obligations are subordinated as provided in Article 12. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (ix) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes 105 of such Subsidiary Guarantor’s 's Subsidiary Guaranty herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed hereby, and (iiy) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all amounts due to the Trustee pursuant to Section 7.07 and any and all costs and expenses (including reasonable attorneys’ fees' fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section. Each Subsidiary Guarantor that makes a payment under its Subsidiary Guaranty will be entitled upon payment in full of all guarantied obligations under this Indenture to contribution from each other Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor's pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment determined in accordance with GAAP.
Appears in 1 contract
Samples: Indenture (Amis Holdings Inc)
Subsidiary Guaranties. Subject to Section 10.01, each Each Subsidiary Guarantor hereby fully, unconditionally and irrevocably guarantees, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the 105 Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities (all the foregoing being hereinafter collectively called the “Guaranteed "Securities Obligations”"). Each Subsidiary Guarantor further agrees that the Guaranteed Securities Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 11 notwithstanding any extension or renewal of any Guaranteed Securities Obligation. Each To the fullest extent permitted by law, each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Securities Obligations and also waives notice of protest for nonpayment. Each To the fullest extent permitted by law, each Subsidiary Guarantor waives notice of any default under the Securities or the Guaranteed Securities Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by by
(1a) 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 (including any Subsidiary Guarantor) under this Indenture, the Securities or any other agreement or otherwise; ;
(2b) any extension or renewal of any thereof; such claim, demand, right or remedy;
(3c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; ;
(4d) the release of any security held by any Holder or the Trustee for the Guaranteed Securities Obligations or any of them; ;
(5e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Securities Obligations; or or
(6f) except as set forth in Section 10.0711.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Securities Obligations. Each Subsidiary Guaranty is, to the extent and in the manner set forth in Article 12, subordinated and subject in right of payment to the prior payment in full of the principal of and premium, if any, and interest on all Senior Indebtedness of the Subsidiary Guarantor giving such Subsidiary Guaranty and each Subsidiary Guaranty is made subject to such provisions of this Indenture. Except as expressly set forth in Article 8 Sections 8.01(b), 11.02 and Sections 10.03 and 10.0711.06, to the fullest extent permitted by law, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and and, to the fullest extent permitted by law, shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Securities Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the 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 such Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity. Each Subsidiary Guarantor further agrees that its guarantee Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Securities Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. 107 In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Securities Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Securities Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of of
(A1) the unpaid amount of such Guaranteed Securities Obligations, ,
(B2) accrued and unpaid interest on such Guaranteed Securities Obligations (but only to the extent not prohibited by law) and and
(C3) all other monetary Guaranteed Securities Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Securities Obligations guaranteed hereby until payment in full of all monetary Securities Obligations and all obligations of to which the Company under this Indenture and the SecuritiesSecurities Obligations are subordinated as provided in Article 12. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guaranty herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all amounts due to the Trustee pursuant to Section 7.07 and any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Section.,
Appears in 1 contract
Samples: Indenture (Wilmar Holdings Inc)
Subsidiary Guaranties. Subject to Section 10.01, each Subsidiary Guarantor hereby fully, unconditionally and irrevocably guarantees, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) The payment by the full Company of all amounts due with respect to the Notes and punctual payment the performance by the Company of principal of its obligations under this Agreement will be absolutely and interest on the Securities when dueunconditionally guaranteed by Modine Delaware LLC, whether at maturitya Delaware limited liability company, by accelerationModine Climate Systems Inc., by redemption or otherwisea Kentucky corporation, Thermacore International, Inc., a Pennsylvania corporation, Thermacore, Inc., a Pennsylvania corporation, Thermal Corp., a Delaware corporation, Modine, Inc., (formerly Modine Acquisition Corporation), a Delaware corporation, and all other monetary obligations of the Company under this Indenture and the Securities and Xxxxxx Xxxxxxx, Inc., a Delaware corporation (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities (all the foregoing being hereinafter collectively called together with any additional Subsidiary who delivers a guaranty pursuant to Section 9.8, the “Guaranteed ObligationsSubsidiary Guarantors”). Each Subsidiary Guarantor further agrees that ) pursuant to the Guaranteed Obligations guaranty agreement substantially in the form of Exhibit 2.2(a) attached hereto and made a part hereof (as the same may be amended, modified, extended or renewed, the “Subsidiary Guaranty”).
(b) The enforcement of the rights and benefits in whole respect of the Subsidiary Guaranty and the allocation of proceeds thereof shall be subject to an intercreditor agreement substantially in the form of Exhibit 2.2(b) attached hereto and made a part hereof (as the same may be amended, modified, extended or in partrenewed, without notice or further assent the “Intercreditor Agreement”).
(c) The holders of the Notes acknowledge and agree that such holders will discharge and release any Subsidiary Guarantor from the Subsidiary Guaranty to which it is a party pursuant to the written request of the Company, provided that (i) such Subsidiary Guarantor has been released and discharged as an obligor and guarantor under and in respect of all Debt of the Company and the Company so certifies to the holders of the Notes in a certificate which accompanies such request for release and discharge, such release is hereby conditioned upon the Company’s agreement that if, for any reason whatsoever, such Subsidiary Guarantor will remain bound thereafter becomes an obligor or guarantor under this Article 10 notwithstanding any extension or renewal and in respect of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation toDebt of the Company, demand of, payment from and protest then the Company shall contemporaneously provide written notice thereof to the Company of any holders of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Notes accompanied by an executed Subsidiary Guarantor waives notice of any default under the Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by (1) 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 (including any Subsidiary Guarantor) under this Indenture, the Securities or any other agreement or otherwise; (2) any extension or renewal of any thereof; (3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (4) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (6) except as set forth in Section 10.07, any change in the ownership Guaranty of such Subsidiary Guarantor. Each Subsidiary Guarantor further , and (ii) at the time of such release and discharge, the Company shall deliver a certificate of a Responsible Officer to the holders of the Notes to the effect that no Default or Event of Default exists.
(d) The Company agrees that its it will not, nor will it permit any Subsidiary Guaranty herein constitutes a guarantee or Affiliate to, directly or indirectly, pay or cause to be paid any consideration or remuneration, whether by way of paymentsupplemental or additional interest, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Article 8 and Sections 10.03 and 10.07, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful fee or otherwise, in the performance to any creditor of the obligations, Company or of any Subsidiary Guarantor as consideration for or as an inducement to the entering into by any other act such creditor of any release or thing or omission or delay to do discharge of any other act or thing which may or might in any manner or Subsidiary Guarantor with respect to any extent vary the risk of such Subsidiary Guarantor or would otherwise operate as a discharge liability of such Subsidiary Guarantor as a matter of law an obligor or equity. Each Subsidiary Guarantor further agrees that its guarantee herein shall continue to be effective guarantor under or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (A) the unpaid amount of such Guaranteed Obligations, (B) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (C) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations until payment in full of all monetary obligations Debt of the Company under this Indenture and the Securities. Each Subsidiary Guarantor further agrees thatCompany, as between itunless such consideration or remuneration is concurrently paid, on the one handsame terms, and ratably to the Holders and the Trustee, on the other hand, (i) the maturity Noteholders of all of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guaranty herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all amounts due to the Trustee pursuant to Section 7.07 and any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this SectionNotes then outstanding.
Appears in 1 contract
Subsidiary Guaranties. Subject to Section 10.01the provisions of this Article 11, each Subsidiary Guarantor hereby fully, unconditionally and irrevocably guarantees, jointly and severally, guarantees to each Holder and to the Trustee and its successors and assigns on behalf of the Holders (ai) the full due and punctual payment of principal of and interest on each Security when and as the Securities when due, same shall become due and payable whether at maturity, the date of maturity or by acceleration, by redemption declaration of acceleration or otherwise, (ii) the due and all other monetary obligations punctual payment of interest on the Company under this Indenture overdue principal of and interest, if any, on the Securities Securities, to the extent lawful, and (biii) the full due and punctual performance within applicable grace periods of all other obligations of the Company under to the Holders or the Trustee, all in accordance with the terms of the Securities and this Indenture and (the Securities (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”"Subsidiary Guaranties"). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal In case of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by (1) 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 (including any Subsidiary Guarantor) under this Indenture, the Securities or any other agreement or otherwise; (2) any extension or renewal of any thereof; (3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (4) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (6) except as set forth in Section 10.07, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Article 8 and Sections 10.03 and 10.07, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the 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 such Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity. Each Subsidiary Guarantor further agrees that its guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company punctually to pay the make any such principal of or interest on payment, the Subsidiary Guarantors hereby agree to cause any Guaranteed Obligation such payment to be made punctually when and as the same shall become duedue and payable, whether at maturity, the date of maturity or by acceleration, by redemption declaration of acceleration or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand as if such payment were made by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (A) the unpaid amount of such Guaranteed Obligations, (B) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (C) all other monetary Guaranteed Obligations of the Company to the Holders and the TrusteeCompany. Each Subsidiary Guarantor hereby agrees that it its obligations hereunder shall be unconditional, irrespective of and unaffected by the validity, regularity or enforceability of the Securities or this Indenture, or of any amendment thereto or hereto, the absence of any action to enforce the same, the waiver or consent by any Holder or by the Trustee with respect to any provisions thereof or of this Indenture, the recovery of any judgment against the Company or any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. The Company hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to the Securities or the Indebtedness evidenced thereby and all demands whatsoever, and covenants that the Subsidiary Guaranties will not be entitled to any right of subrogation in respect of any Guaranteed Obligations until payment in full of all monetary obligations discharged except by complete performance of the Company under obligations contained in the Securities, in this Indenture and pursuant to the SecuritiesSubsidiary Guaranties. Each The Subsidiary Guarantor Guarantors further agrees agree that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (i) for purposes of the Subsidiary Guaranties, the maturity of the Guaranteed Obligations obligations guaranteed by the Subsidiary Guaranties may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guaranty herein6, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed thereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations obligations (whether or not due and payable) ), such obligations shall forthwith become due and payable by such the Subsidiary Guarantor Guarantors for the purposes of this Sectionthe Subsidiary Guaranties. Each The Subsidiary Guarantor also agrees Guaranties shall continue to pay be effective or shall be reinstated, as the case may be, if at any and all amounts due to time any payment, or any part thereof, of principal of or interest on any of the Securities is rescinded or must otherwise be returned by the Holders or the Trustee pursuant to Section 7.07 and any and upon the insolvency, bankruptcy or reorganization of the Company or the Subsidiary Guarantors or otherwise, all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Sectionas though such payment had not been made.
Appears in 1 contract
Subsidiary Guaranties. Subject to Section 10.01, each Each Subsidiary Guarantor hereby fully, unconditionally and irrevocably guaranteesGuaranties, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Securities 7 5/8% Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this the Indenture and the Securities 7 5/8% Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this the Indenture and the Securities 7 5/8% Notes (all the foregoing being hereinafter collectively called the “Guaranteed "Obligations”"). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor Guarantor, and that such Subsidiary Guarantor will remain bound under this Article 10 XIV notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default Default under the Securities 7 5/8% Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by (1a) 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 (including any Subsidiary Guarantor) under this the Indenture, the Securities 7 5/8% Notes or any other agreement or otherwise; (2b) any extension or renewal of any thereof; (3c) any rescission, waiver, amendment or modification of any of the terms or provisions of this the Indenture, the Securities 7 5/8% Notes or any other agreement; (4d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor Guarantor of the Guaranteed Obligations; or (6f) except as set forth in Section 10.07, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty herein constitutes a guarantee Guarantee of payment, performance and compliance when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Article 8 Sections 4.13, 4.18, 4.19 and Sections 10.03 and 10.0711.02, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this the Indenture, the Securities 7 5/8% Notes or any other agreement, by any waiver or modification of any thereof, by any defaultDefault, 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 Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity. Each Subsidiary Guarantor further agrees that its guarantee Subsidiary Guaranty herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (Ai) the unpaid amount of such Guaranteed Obligations, (Bii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (Ciii) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations until payment in full of all monetary obligations of the Company under this Indenture and the Securities. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (ix) the maturity of the Obligations Guaranteed Obligations hereby may be accelerated as provided in Article 6 VI for the purposes of such Subsidiary Guarantor’s 's Subsidiary Guaranty herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations Guaranteed Obligationshereby, and (iiy) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all amounts due to the Trustee pursuant to Section 7.07 and any and all costs and expenses (including reasonable attorneys’ ' fees) incurred by the Trustee or any Holder in enforcing any rights under this SectionSection 14.01.
Appears in 1 contract
Subsidiary Guaranties. Subject to Section 10.01, each Each Subsidiary Guarantor hereby fully, unconditionally and irrevocably guaranteesGuaranties, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Securities 9 3/8% Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this the Indenture and the Securities 9 3/8% Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this the Indenture and the Securities 9 3/8% Notes (all the foregoing being hereinafter collectively called the “Guaranteed "Obligations”"). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor Guarantor, and that such Subsidiary Guarantor will remain bound under this Article 10 XIV notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default Default under the Securities 9 3/8% Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by (1a) 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 (including any Subsidiary Guarantor) under this the Indenture, the Securities 9 3/8% Notes or any other agreement or otherwise; (2b) any extension or renewal of any thereof; (3c) any rescission, waiver, amendment or modification of any of the terms or provisions of this the Indenture, the Securities 9 3/8% Notes or any other agreement; (4d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor Guarantor of the Guaranteed Obligations; or (6f) except as set forth in Section 10.07, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty herein constitutes a guarantee Guarantee of payment, performance and compliance when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Each Subsidiary Guaranty is, to the extent and in the manner set forth in Article XV, subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness of the Subsidiary Guarantor giving such Subsidiary Guaranty and each Subsidiary Guarantor and is made subject to such provisions of the Indenture. Except as expressly set forth in Article 8 Sections 4.13, 4.18, 4.19 and Sections 10.03 and 10.0711.02, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this the Indenture, the Securities 9 3/8% Notes or any other agreement, by any waiver or modification of any thereof, by any defaultDefault, 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 Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity. Each Subsidiary Guarantor further agrees that its guarantee Subsidiary Guaranty herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shallwill, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (Ai) the unpaid amount of such Guaranteed Obligations, (Bii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (Ciii) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Obligations Guaranteed Obligations hereby until payment in full in cash of all monetary Obligations and all obligations of to which the Company under this Indenture and the SecuritiesObligations are subordinated as provided in Article XV. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (ix) the maturity of the Obligations Guaranteed Obligations hereby may be accelerated as provided in Article 6 VI for the purposes of such Subsidiary Guarantor’s 's Subsidiary Guaranty herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations Guaranteed Obligationshereby, and (iiy) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all amounts due to the Trustee pursuant to Section 7.07 and any and all costs and expenses (including reasonable attorneys’ ' fees) incurred by the Trustee or any Holder in enforcing any rights under this SectionSection 14.01.
Appears in 1 contract
Subsidiary Guaranties. Subject to Section 10.01, each Subsidiary Guarantor hereby fully, unconditionally and irrevocably guarantees, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) The payment by the full Company of all amounts due with respect to the Notes and punctual payment the performance by the Company of principal of its obligations under this Agreement will be absolutely and interest on the Securities when dueunconditionally guaranteed by Xxxxxxxxx Farms, whether at maturityInc. (Foods Division), by accelerationa Mississippi corporation, by redemption or otherwiseXxxxxxxxx Farms, Inc. (Production Division), a Mississippi corporation, and all other monetary obligations Xxxxxxxxx Farms, Inc. (Processing Division), a Mississippi corporation (together with any additional Subsidiary who executes and delivers a guaranty pursuant to SECTION 9.7, the "Subsidiary Guarantors") pursuant to the guaranty agreement substantially in the form of EXHIBIT 2.2(A) attached hereto and made a part hereof (as the Company under this Indenture and the Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations same may be amended, modified, extended or renewed, the "Subsidiary Guaranty").
(b) The enforcement of the rights and benefits in whole respect of the Subsidiary Guaranty and the allocation of proceeds thereof shall be subject to an intercreditor agreement substantially in the form of EXHIBIT 2.2(B) attached hereto and made a part hereof (as the same may be amended, modified, extended or in partrenewed, without notice or further assent the "Intercreditor Agreement").
(c) The holders of the Notes acknowledge and agree that such holders will discharge and release any Subsidiary Guarantor from the Subsidiary Guaranty pursuant to the written request of the Company, provided that (i) either (1) such Subsidiary Guarantor has been released and that discharged as an obligor and guarantor under and in respect of all Debt of the Company or (2) the liability of such Subsidiary Guarantor will remain bound as obligor or guarantor in respect of all such Debt is at the time of discharge and release of such Subsidiary Guaranty incurred within the limitations of SECTION 10, including, without limitation, SECTIONS 10.2 and 10.3 thereof, and, in either event, the Company so certifies to the holders of the Notes in a certificate which accompanies such request for release and discharge, which certificate shall also include information in reasonable detail to show compliance with SECTION 10 if such release and discharge is requested pursuant to clause (2), (ii) any such release and discharge shall be expressly conditioned upon receipt by the holders of the Notes of a written agreement executed by the Subsidiary Guarantor to be released pursuant to which such Subsidiary Guarantor shall agree that if, for any reason whatsoever, it thereafter becomes an obligor or guarantor under this Article 10 notwithstanding any extension or renewal and in respect of any Guaranteed Obligation. Each Debt of the Company, then such Subsidiary Guarantor waives presentation to, demand of, payment from and protest shall contemporaneously provide written notice thereof to the Company of any holders of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected Notes accompanied by either (1) 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 (including any Subsidiary Guarantor) under this Indenture, the Securities or any other agreement or otherwise; (2) any extension or renewal of any thereof; (3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (4) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (6) except as set forth in Section 10.07, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its an executed Subsidiary Guaranty herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Article 8 and Sections 10.03 and 10.07, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the 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 such Subsidiary Guarantor or would otherwise operate as (2) a discharge certificate of the Company certifying to the holders of the Notes that the liability of such Subsidiary Guarantor as an obligor or guarantor under or in respect of such Debt of the Company is incurred within the limitations of SECTION 10, which certificate shall also include information in reasonable detail to show compliance with SECTION 10, including, without limitation, SECTIONS 10.2 and 10.3 thereof, and (iii) at the time of such release and discharge, the Company shall deliver a matter certificate of law a Responsible Officer to the holders of the Notes to the effect that no Default or equity. Each Subsidiary Guarantor further Event of Default exists.
(d) The Company agrees that its guarantee herein shall continue it will not, nor will it permit any Subsidiary or Affiliate to, directly or indirectly, pay or cause to be effective paid any consideration or be reinstatedremuneration, as the case may bewhether by way of supplemental or additional interest, if at fee or otherwise, to any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization creditor of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor as consideration for or as an inducement to the entering into by virtue hereof, upon the failure any such creditor of the Company to pay the principal any release or discharge of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises with respect to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (A) the unpaid amount any liability of such Guaranteed Obligations, (B) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (C) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation as an obligor or guarantor under or in respect of any Guaranteed Obligations until payment in full of all monetary obligations Debt of the Company under this Indenture and the Securities. Each Subsidiary Guarantor further agrees thatCompany, as between itunless such consideration or remuneration is concurrently paid, on the one handsame terms, and ratably to the Holders and the Trustee, on the other hand, (i) the maturity Noteholders of all of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guaranty herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all amounts due to the Trustee pursuant to Section 7.07 and any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this SectionNotes then outstanding.
Appears in 1 contract
Subsidiary Guaranties. Subject to Section 10.01the provisions of this Article 11, each the Guarantors hereby unconditionally guaranty (such guaranty being the "Subsidiary Guarantor hereby fully, unconditionally and irrevocably guarantees, jointly and severally, Guaranties") to each Holder Bondholder of a Bond authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of this indenture, the Bonds or the obligations of the Issuer under this Indenture or the Bonds, that: (a) i), the full and punctual payment of principal of and interest on the Securities Bonds will be paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, call for redemption or otherwise, and interest on the overdue principal of and interest, if any, on the Bonds and all other obligations of the Issuer to the Bondholders or the Trustee under this Indenture, the Related Documents, or the Bonds will be promptly paid in full or performed, all in accordance with the terms of this Indenture, the Related Documents, and the Bonds; (ii) in case of any extension of time of payment or renewal of any Bonds or any of such other obligations, they will be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by (1) 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 (including any Subsidiary Guarantor) under this Indenture, the Securities or any other agreement acceleration or otherwise; and (2) any extension or renewal of any thereof; (3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (4iii) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (6) except as set forth in Section 10.07, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Article 8 and Sections 10.03 and 10.07, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the 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 such Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity. Each Subsidiary Guarantor further agrees that its guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (A) the unpaid amount of such Guaranteed Obligations, (B) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (C) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations until payment in full of all monetary obligations of the Company under this Indenture and the Securities. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guaranty herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all amounts due to the Trustee pursuant to Section 7.07 and any and all costs and expenses (including reasonable attorneys’ ' fees) incurred by the Trustee or any Holder Bondholder in enforcing any rights under this Section.the Subsidiary Guaranties. Failing payment when due of any amount so guarantied for whatever reason, the Guarantors will be obligated to pay the same whether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 6.02
Appears in 1 contract
