Guarantee of Notes. (a) The Guarantor covenants with the Trustee for the benefit of each holder of Notes that it hereby unconditionally guarantees the due and punctual payment of the principal amount of, premium (if any including, without limitation, any redemption premium, if any) on, interest on (including, in case of default, interest on the amount in default) and any Additional Amounts (as defined below) in respect of each Note when and as the same shall become due and payable, whether at their respective due dates or on declaration or otherwise, in accordance with the terms of such Note and of this Indenture provided, however, that payment of interest on overdue instalments of interest is hereby guaranteed only to the extent permitted by applicable law and provided further that any payments to be made by the Guarantor hereunder shall not be reduced by any remuneration, expenses, disbursements or advances which may be applied by the Trustee in accordance with Section 5.9(a). In the case of default by the Corporation in the payment of any such principal, premium, if any, interest or any Additional Amounts payable to the Registered Holder of a Note, the Guarantor agrees duly and punctually to pay the same on demand. Reference to the “Guarantee” herein refers to the guarantee provided for by the Guarantor in this Article 3 and includes any guarantee endorsed on a Note pursuant to Section 3.3 hereof. The Guarantee is a guarantee of payment and not of collection. (b) The Guarantee is a direct and unsecured and unsubordinated obligation of the Guarantor ranking pari passu will all other current and future unsecured and unsubordinated debt of the Guarantor. (c) In the case of default by the Corporation, the Trustee shall not be bound or obligated to proceed against the Corporation or to take any other action before being entitled to demand payment from the Guarantor hereunder. The Guarantor hereby waives any requirement that the Trustee protect, secure, perfect or insure any security interest or lien on any property subject thereto or exhaust any right or take any action against any person or any collateral (including any rights relating to marshalling of assets). (d) The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of an arrangement, merger, amalgamation, insolvency or bankruptcy of the Corporation, protest or notice with respect to any Note or the indebtedness evidenced thereby and all demands whatsoever, and covenants that its obligations under this Article 3 and the Guarantee will not be discharged as to any Notes except by payment in full of the principal, premium, if any, Additional Amounts, if any, and interest to Registered Holders of such Notes. (e) The obligation of the Guarantor under this Indenture and the Guarantee shall be a continuing obligation and a fresh cause of action hereunder shall be deemed to arise in respect of each default by the Corporation in the payment of principal, premium, if any, interest or any Additional Amounts. (f) The Guarantor shall not be or become liable under the Guarantee to make any payment of principal, premium, if any, interest or Additional Amounts in respect of which the Corporation shall be in default if the default of the Corporation in respect of which the Guarantor would otherwise be or become liable under the Guarantee shall have been waived or directed to be waived pursuant to the provisions contained in this Indenture, provided, however, that no waiver or consent of any kind whatsoever shall release, alter or impair the unconditional obligations of the Guarantor hereunder after giving effect to such waiver or consent. (g) The Guarantor shall be subrogated to all rights of the Registered Holder of each Note and the holders of any interest therein against the Corporation in respect of any amount paid by the Guarantor under this Indenture or pursuant to the provisions of the Guarantee, provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and premium, if any, interest and Additional Amounts on all Notes issued under this Indenture shall have been paid in full. (h) No remedy for the enforcement of the rights of the Registered Holder of any Note to receive payment of principal, premium, if any, interest and/or Additional Amounts on any Note in accordance with the terms under such Note, the Guarantee endorsed on such Note, and under this Indenture shall be exclusive of or dependent on any other remedy. (i) If any moneys become payable by the Guarantor hereunder, the Trustee shall be entitled to enforce and receive payment thereof by the Guarantor, for the benefit of the Registered Holders of the Notes, and shall be entitled to recover judgment against the Guarantor for any portion of the same remaining unpaid. The whole of the moneys from time to time received by the Trustee hereunder shall be applied by the Trustee in accordance with the provisions of this Indenture. (j) The liability of the Guarantor to the extent herein set forth shall be absolute and unconditional irrespective of: (i) any lack of validity or enforceability of any agreement between the Corporation and the Trustee and each Registered Holder of a Note or of the Guarantee of any other guarantor of the obligations; (ii) any impossibility, impracticability, frustration of purpose, illegality, force majeure or act of government; (iii) the bankruptcy, winding-up, liquidation, dissolution or insolvency of the Corporation or any other guarantor or person or the amalgamation of or any change in the status, function, control or ownership of, the Corporation, the Guarantor, the Trustee or any other person; (iv) any lack or limitation of power, incapacity or disability on the part of the Corporation or of the directors, partners or agents thereof or any other immaterial irregularity, defect or informality on the part of the Corporation in its obligations to the Trustee and each Registered Holder of Notes; or (v) any other law, regulation or order that might otherwise constitute a defence available to, or a discharge of, the Corporation in respect of any or all of its obligations hereunder. (k) The Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any principal, premium (if any), interest or any Additional Amounts payable to the Registered Holders of the Notes is rescinded or must otherwise be returned by the Trustee or any Registered Holder of the Notes upon the insolvency, bankruptcy or reorganization of the Corporation or in connection with any challenge with respect to amounts paid on defeasance or otherwise, all as though such payment had not been made. (l) The Guarantor shall, subject to the exceptions and limitations set forth in clauses (i) through (xi) below and subject to the further exception that the Corporation shall not have then paid, pay such additional amounts (the “Additional Amounts”) to any holder of a Note who, for United States federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident fiduciary of a foreign estate or trust, or a foreign partnership, one or more of the members of which is a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust (a “United States Alien”) as may be necessary in order that every net payment of the principal and interest, including original issue discount, on such Note after withholding for or on account of any present or future tax, assessment or governmental charge imposed upon or as a result of such payment by the United States (or any political subdivision or taxing authority thereof or therein), will not be less than the amount provided for in such Note to be then due and payable. However, the Guarantor will not be required to make any payment of Additional Amounts to any such holder for or on account of: (i) any such tax, assessment or other governmental charge which would not have been so imposed but for the existence of any present or former connection between such holder (or between a fiduciary, settlor, beneficiary, member or shareholder of such holder, if such holder is an estate, a trust, a partnership or a corporation) and the United States, including, without limitation, such holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein, or having or having had a permanent establishment therein; (ii) any tax, assessment or other governmental charge imposed by reason of such holder’s past or present status for United States federal income tax purposes as a personal holding company or foreign personal holding company or controlled foreign corporation or passive foreign investment company or as a corporation which accumulates earnings to avoid United States federal income tax or as a private foundation or other tax-exempt organization; (iii) any tax, assessment or other governmental charge which would not have been so imposed but for the presentation by the holder of any Notes of any series or tranche for payment on a date more than 60 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later; (iv) any estate, inheritance, gift, sales, transfer, excise or personal property tax or any similar tax, assessment or governmental charge; (v) any tax, assessment or other governmental charge imposed by reason of such holder’s past or present status as the actual or constructive owner of 10 per cent or more of the total combined voting power of all classes of stock entitled to vote of the Corporation or the Guarantor, or as a direct or indirect subsidiary of the Corporation or the Guarantor; (vi) any tax, assessment or other governmental charge imposed on interest or other amounts received by a bank on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business; (vii) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information or other reporting requirements concerning the nationality, residence or identity of the holder or beneficial owner of such Note if such compliance is required by statute or by regulation of the United States or of any political subdivision or taxing authority thereof or therein as a precondition to relief or exemption from such tax, assessment or other governmental charge; (viii) any tax, assessment or other governmental charge that would not have been so imposed but for the holder being or having been a person within a country with respect to which the United States Treasury Department has determined, on or before the original issue date of the Note, under sections 871(h)(6) and 881(c)(6) of the Internal Revenue Code of 1986, as amended, (the “Code”), that payments of interest to persons within such country are not subject to the repeal of the United States withholding tax provided for in Sections 871(h) and 881(c) of the Code; (ix) any tax, assessment or other governmental charge imposed on a holder that is a United States Person as defined in section 7701(a)(30) of the Code; (x) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments on or in respect of any Note; or (xi) any combination of the foregoing items; nor shall Additional Amounts be paid with respect to any payment on a Note to a United States Alien who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the United States (or any political subdivision thereof) to be included in the income, for tax purposes, of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the holder of the Note (for clarity and avoidance of doubt the obligation to pay Additional Amounts under this Indenture shall only be an obligation of either the Corporation or the Guarantor but not both the Corporation and the Guarantor, unless the Corporation defaults in its payment thereof); (m) Except as specifically provided in this Indenture, the Guarantor shall not be required to make any payment to or in respect of a Registered Holder with respect to any tax, assessment or other governmental charge imposed by any government or any political subdivision or taxing authority thereof or therein. Whenever in this Indenture there is a reference, in any context, to the payment of the principal of, premium (if any) on, interest on, any Note, such mention shall be deemed to include mention of the payment of Additional Amounts provided for herein to the extent that, in such context, Additional Amounts, are, were or would be payable in respect thereof pursuant to the provisions hereof and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made. (n) The liabilities of the Guarantor hereunder and under the Guarantee shall not be released, discharged, limited or in any way affected by anything done, suffered or permitted by the Trustee or any Registered Holder in connection with this Indenture or with the Corporation. It is agreed that the Trustee and any Registered Holder, without releasing, discharging, limiting or otherwise affecting in whole or in part the Guarantor’s liabilities hereunder or under the Guarantee, may, without limiting the generality of the foregoing: (i) grant time, renewals, extensions, indulgences, releases and discharges to the Corporation; (ii) accept compromises from the Corporation; or (iii) otherwise deal with the Corporation and all other Persons, including any other guarantor, as the Trustee or such Registered Holder may see fit.
Appears in 1 contract
Guarantee of Notes. (a) The Guarantor covenants with the Trustee for that the benefit of each holder of Notes that it Corporation will pay and hereby unconditionally guarantees the due and punctual payment of the principal amount of, premium (if any including, without limitation, any redemption premium, if any) on, interest on (including, in case of default, interest on the amount in default) and any Additional Amounts (as defined below) Amount in respect of each Note when and as the same shall become due and payable, whether at their respective due dates or on declaration or otherwise, payable in accordance with the terms of such Note and of this Indenture provided, however, that payment of interest on overdue instalments of interest is hereby guaranteed only to the extent permitted by applicable law and provided further that any payments to be made by the Guarantor hereunder shall not be reduced by any remuneration, expenses, disbursements or advances which may be applied by the Trustee in accordance with Section 5.9(a). In the case of default by the Corporation in the payment of any such principal, premium, if any, interest or any Additional Amounts payable to the Registered Holder of a Note, the Guarantor agrees duly and punctually to pay the same on demand. Reference to the “Guarantee” herein refers to the guarantee provided for by the Guarantor in this Article 3 and includes any guarantee endorsed on a Note pursuant to Section 3.3 hereoflaw. The Guarantee is a guarantee of payment and not of collection.
(b) . The Guarantee is a direct and unsecured and unsubordinated obligation of the Guarantor ranking pari passu will with all other current and future senior unsecured and unsubordinated debt of the Guarantor.
(c) , subject to exceptions prescribed by law and except as to any sinking fund which pertains exclusively to any future issue of debt securities by the Guarantor. In the case of default by the Corporation, the Trustee shall not be bound or obligated to proceed against the Corporation or to take any other action before being entitled to demand payment from the Guarantor hereunder. The Guarantor hereby waives any requirement that the Trustee protect, secure, perfect or insure any security interest or lien on any property subject thereto or exhaust any right or take any action against any person or any collateral (including any rights relating to marshalling of assets).
(d) . The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of an arrangement, merger, amalgamation, insolvency or bankruptcy bankuptcy of the Corporation, protest or notice with respect to any Note Notes or the indebtedness evidenced thereby and all demands whatsoever, and covenants that its obligations under this Article 3 Three and the Guarantee will not be discharged as to any Notes except by payment in full of the principal, premium, if any, Additional Amounts, if any, and interest or other amounts payable to Registered Holders of such Notes.
(e) . The obligation of the Guarantor under this Indenture and the Guarantee shall be a continuing obligation and a fresh cause of action hereunder shall be deemed to arise in respect of each default by the Corporation in the payment of principal, premium, if any, interest or any Additional Amounts.
(f) default. The Guarantor shall not be or become liable hereunder or under the any Guarantee to make any payment of principal, premium, if any, interest or Additional Amounts in respect of to which the Corporation shall be in default if the default of the Corporation in respect of which the Guarantor would otherwise be or become liable hereunder or under the any Guarantee shall have been waived or directed to be waived pursuant to the provisions in that behalf contained in this Indenture, provided, however, that no waiver or consent of any kind whatsoever shall release, alter or impair the unconditional obligations obligation of the Guarantor hereunder or under any Guarantee after giving effect to such waiver or consent.
(g) . The Guarantor shall be subrogated to all rights of the Registered Holder of each Note and the holders of any interest therein against the Corporation in respect of any amount paid by the Guarantor under this Indenture or pursuant to the provisions of the any Guarantee, provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and premium, if any, interest and Additional Amounts on all Notes issued under this Indenture shall have been paid in full.
(h) . No remedy for the enforcement of the rights of the Registered Holder holder of any Note to receive payment of principal, premium, if any, the principal of and/or premium and/or interest and/or Additional Amounts on any Note in accordance with the their terms under such Note, the Guarantee endorsed on such Note, and under this Indenture hereunder shall be exclusive of or dependent on any other remedy.
(i) . If any moneys become payable by the Guarantor hereunder, hereunder the Trustee shall be entitled to enforce and receive payment thereof by the Guarantor, for the benefit of the Registered Holders holders of the Notes, and shall be entitled to recover judgment against the Guarantor for any portion of the same remaining unpaid. The whole of the moneys from time to time received by the Trustee hereunder shall be applied by the Trustee in accordance with the provisions of Article Five. The Guarantor hereby guarantees obligations will be paid strictly in accordance with the terms of this Indenture.
(j) Indenture or any other agreement relating thereto, regardless of the value, genuineness, validity, regularity or enforceability of the guaranteed obligations, and of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Trustee with respect thereto. The liability of the Guarantor to the extent herein set forth shall be absolute and unconditional unconditional, not subject to any reduction, limitation, impairment, termination, defense, offset, counterclaim or recoupment whatsoever (all of which are hereby expressly waived by the Guarantor) whether by reason of any claim of any character whatsoever, including, without limitation, any claim of waiver, release, surrender, alteration or compromise, or by reason of any liability at any time to the Guarantor or otherwise, and howsoever arising, whether out of action or inaction or otherwise and whether resulting from default, willful misconduct, negligence or otherwise, and without limiting the foregoing irrespective of:
(i) : any lack of validity or enforceability of any agreement between or instrument relating to the Corporation and the Trustee and each Registered Holder of a Note or of the Guarantee of any other guarantor of the guaranteed obligations;
(ii) any impossibility, impracticability, frustration of purpose, illegality, force majeure or act of government;
(iii) the bankruptcy, winding-up, liquidation, dissolution or insolvency of the Corporation or any other guarantor or person or the amalgamation of or ; any change in the statustime, function, control manner or ownership place of payment of, or in any other term in respect of, all or any of the Corporationguaranteed obligations, the Guarantor, the Trustee or any other person;
(iv) amendment or waiver of or consent to any lack departure from any other agreement relating to any guaranteed obligations; any change in the time, manner or limitation place of powerpayment of, incapacity or disability on the part in any other term in respect of, all or any of the Corporation or of the directorsguaranteed obligations, partners or agents thereof or any other immaterial irregularityamendment or waiver of or consent to any departure from any other agreement relating to any guaranteed obligations; any increase in, defect addition to, exchange or informality release of, or nonperfection of any lien on the part or security interest in, any collateral, or any release or amendment or waiver of or consent to any departure from or failure to enforce any other guarantee, for all or any of the Corporation in its obligations to the Trustee and each Registered Holder of Notesindebtedness; or
(v) any other law, regulation or order that circumstance which might otherwise constitute a defence defense available to, or any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Corporation in respect of the guaranteed obligations or the Guarantor in respect hereof; the absence of any action on the part of the Trustee to obtain payment of the guaranteed obligations from the Corporation; any insolvency, bankruptcy, reorganization or dissolution, or any proceeding of the Corporation or the Guarantor, including, without limitation, rejection of the guaranteed obligations in such bankruptcy; the absence of notice or any delay in any action to enforce any guaranteed obligations or to exercise any right or remedy against the Guarantor, or the Corporation, whether hereunder, under any guaranteed obligations or any agreement or any indulgence, compromise or extension granted; any impossibility, impracticability, frustration of purpose, force majeure or act of government; or except as provided in section 7.01, any change in the name, constitution, capacity, capital or certificate of incorporation or by-laws of the Corporation or the Corporation being amalgamated or merged with or transferring all or substantially all of its obligations hereunder.
assets to another corporation (k) in which case this Article Three shall apply to the liabilities of the resulting or transferee corporation and the term of the "Corporation" shall include such resulting or transferee corporation). The Guarantor further agrees that, to the extent that the Corporation or the Guarantor makes a payment or payments to the Trustee, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to the Corporation or the Guarantor or their respective trustee, receiver or any other party under any bankruptcy law, state, provincial or federal U.S. or Canadian law, common law or equitable cause, then to the extent of such payment or repayment, this Guarantee and the advances or part thereof which have been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred. Any and all payments made by the Guarantor pursuant to the provisions of its Guarantee shall continue be made without withholding or deduction for, or on account of, any current or future taxes imposed by or on behalf of the United States or any political subdivision thereof unless such taxes are required by law or by the administration thereof to be effective withheld or be reinstateddeducted, as in which case the case may beGuarantor shall make such withholding or deduction; remit the full amount deducted or withheld to the relevant government authority in accordance with applicable law; furnish to Registered Holders all information returns in the manner and within the time provided for under applicable law; upon request, if at any time any required by a relevant jurisdiction as a condition to a credit, promptly provide original, or certified copies of, receipts where available; and pay Registered Holders such additional amounts ("Additional Amounts") as will result (after the withholding or deduction of such taxes) in a net payment of any principal, premium (if any), interest or any Additional Amounts payable to the Registered Holders of the Notes is rescinded or must amounts which would otherwise be returned by the Trustee or any Registered Holder of the Notes upon the insolvency, bankruptcy or reorganization of the Corporation or in connection with any challenge with respect to amounts paid on defeasance or otherwise, all as though such payment had not have been made.
(l) The Guarantor shall, subject payable pursuant to the exceptions and limitations set forth Guarantee in clauses (i) through (xi) below and subject the absence of such withholding or deduction provided, however, the foregoing obligation to the further exception that the Corporation shall pay Additional Amounts will not have then paid, pay such additional amounts (the “Additional Amounts”) apply to any holder of a Note who, for United States federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident fiduciary of a foreign estate or trust, or a foreign partnership, one or more of the members of which is a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust (a “United States Alien”) as may be necessary in order that every net payment of the principal and interest, including original issue discount, on such Note after withholding for or on account of following: any present or future tax, assessment or governmental charge imposed upon or as a result of such payment by the United States (or any political subdivision or taxing authority thereof or therein), will not be less than the amount provided for in such Note to be then due and payable. However, the Guarantor will not be required to make any payment of Additional Amounts to any such holder for or on account of:
(i) any such tax, assessment or other governmental charge which would not have been so imposed but for (A) the existence of any present or former connection between such holder Registered Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of of, or a Person holding a power over, such holderRegistered Holder, if such holder Registered Holder is an estate, a trust, a partnership or a corporation) and the United States, including, including without limitation, such holder Registered Holder (or such fiduciary, settlor, beneficiary, member member, shareholder or shareholderPerson holding a power over such Registered Holder) being or having been a citizen or resident or treated as a resident thereof or being or having been present or engaged in a trade or business or present therein, or having therein or having had a permanent establishment therein;
, or (iiB) any tax, assessment such Registered Holder's current or other governmental charge imposed by reason of such holder’s past or present former status for United States federal income tax purposes as a personal holding company or company, a foreign personal holding company or company, a controlled foreign corporation that is related to the Guarantor through stock ownership, a foreign tax-exempt organization for United States tax purposes or passive foreign investment company or as a corporation which accumulates earnings to avoid United States federal income tax or as a private foundation or other tax-exempt organization;
(iii) ; any tax, assessment or other governmental charge which would not have been so imposed but for the presentation by the holder Registered Holder of any Notes of any series or tranche for payment on a date more than 60 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(iv) ; any estate, inheritance, gift, sales, transfer, excise or personal property tax or any similar tax, assessment or other governmental charge;
(v) ; any tax, assessment or other governmental charge imposed on interest received by reason of such holder’s past a Person holding, actually or present status as the actual or constructive owner of 10 per cent constructively, 10% or more of the total combined voting power of all classes of stock of the Guarantor entitled to vote of the Corporation or the Guarantor, or as a direct or indirect subsidiary of the Corporation or the Guarantor;
(vi) vote; any tax, assessment or other governmental charge imposed on interest or other amounts received by a bank on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(vii) any tax, assessment or other governmental charge which that would not have been imposed but for the failure by any Registered Holder to comply with certification, information certification or other identification reporting requirements concerning the nationality, residence residence, identity or identity connection with the United States of the holder Registered Holder or of the beneficial owner of such Note if any Notes of any series, if, without regard to any tax treaty, such compliance is required by statute or by regulation of the United States or of any political subdivision or taxing authority thereof or therein Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(viii) ; any tax, assessment or other governmental charge that would not have been so imposed but for the holder Registered Holder being or having been a person within a country with respect to which the United States Treasury Department has determined, on or before the original issue date of the Note, under sections 871(h)(6) and 881(c)(6) of the Internal Revenue Code of 1986, as amended, (the “"Code”"), that payments of interest to persons within such country are not subject to the repeal of the United States withholding tax provided for in Sections 871(h) and 881(c) of the Code;
(ix) ; or any tax, assessment or other governmental charge imposed on a holder Registered Holder that is a United States Person as defined in section 7701(a)(30) of the Code;
(x) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments on or in respect of any Note; or
(xi) any combination of the foregoing items; nor shall will Additional Amounts be paid with respect to any payment on a Note to a United States Alien Registered Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment the Note to the extent such payment would be required by the laws of the United States (or any political subdivision thereof) to be included in the income, for tax purposes, of a beneficiary or settlor with respect to such fiduciary or a member of such partnership partnership, or a beneficial owner who of the Note would not have been entitled to payment of the Additional Amounts had such beneficiary, settlor, member settlor or beneficial owner been the holder Registered Holder of the Note (for clarity and avoidance of doubt the obligation to pay Additional Amounts under this Indenture shall only be an obligation of either the Corporation or the Guarantor but not both the Corporation and the Guarantor, unless the Corporation defaults in its payment thereof);
(m) Notes. Except as specifically provided in this Indenture, the Guarantor shall not be required to make any payment to or in respect of a Registered Holder with respect to any tax, assessment or other governmental charge imposed by any government or any political subdivision or taxing authority thereof or therein. Whenever in this Indenture any Note of any series there is a reference, in any context, to the payment of the principal of, premium (if any) on, interest on, or other amounts or in respect of, any Note, such mention shall be deemed to include mention of the payment of Additional Amounts provided for herein to the extent that, in such context, Additional Amounts, are, were or would be payable in respect thereof pursuant to the provisions hereof and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
(n) . The liabilities of the Guarantor hereunder and under the Guarantee shall not be released, discharged, limited or in any way affected by anything done, suffered or permitted by the Trustee or any Registered Holder in connection with this Indenture or with the Corporation. It is agreed that the Trustee and any Registered Holder, without releasing, discharging, limiting or otherwise affecting in whole or in part the Guarantor’s 's liabilities hereunder or under the Guarantee, may, without limiting the generality of the foregoing:
(i) : grant time, renewals, extensions, indulgences, releases and discharges to the Corporation;
(ii) ; accept compromises from the Corporation; or
(iii) or otherwise deal with the Corporation and all other Persons, including any other guarantor, as the Trustee or such Registered Holder may see fit.. Execution and Delivery of Guarantee To evidence its Guarantee to the holders of Notes as specified in section 3.02, the Guarantor hereby agrees to endorse upon each Note duly issued hereunder a Guarantee substantially in the form set out in Schedule B with such appropriate insertions, omissions, substitutions and variations as the officers of the Guarantor, acting reasonably, executing the same may approve, such approval to be conclusively evidenced by the certification of the Note. The form of Guarantee may include a corresponding French text. In the event of any contradictions, discrepancy or difference between the English language text and the French language text of the form of Guarantee, the English language text shall govern, except where applicable law otherwise requires. Each Guarantee shall be executed on behalf of the Guarantor by any of its duly appointed officers, manually or by facsimile signature. In case any officer of the Guarantor who shall have signed any Guarantee, manually or by facsimile signatures, shall cease to be such officer before the Note on which such Guarantee is endorsed shall have been certified by or on behalf of the Trustee or issued by the Corporation, such Note with such Guara
Appears in 1 contract
Sources: Trust Indenture (Caterpillar Financial Services Corp)
Guarantee of Notes. (a) The Each Guarantor covenants with hereby jointly and severally, irrevocably and unconditionally guarantees, on a senior basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee for and its successors and assigns (i) the benefit of each holder of Notes that it hereby unconditionally guarantees the due performance and punctual payment of the principal amount of, premium (if any including, without limitation, any redemption premium, if any) on, interest on (including, in case of default, interest on the amount in default) and any Additional Amounts (as defined below) in respect of each Note when and as the same shall become due and payabledue, whether at their respective due dates or on declaration Stated Maturity, by acceleration or otherwise, in accordance with of all obligations of the terms of such Note and of Company under this Indenture providedand the Notes, however, that whether for payment of interest on overdue instalments of interest is hereby guaranteed only to the extent permitted by applicable law and provided further that any payments to be made by the Guarantor hereunder shall not be reduced by any remuneration, expenses, disbursements or advances which may be applied by the Trustee in accordance with Section 5.9(a). In the case of default by the Corporation in the payment of any such principalprincipal of, premium, if any, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or any Additional Amounts payable to otherwise under this Indenture and the Registered Holder of a Note, Notes (all the Guarantor agrees duly and punctually to pay the same on demand. Reference to foregoing being hereinafter collectively called the “Guarantee” herein refers to Guaranteed Obligations”). The Guaranteed Obligations of all Guarantors shall be unsecured. Each Guarantor further agrees that the guarantee provided for by the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from any Guarantor, and that each Guarantor in shall remain bound under this Article 3 and includes X notwithstanding any guarantee endorsed on a Note pursuant to Section 3.3 hereof. The Guarantee is a guarantee extension or renewal of payment and not of collectionany Guaranteed Obligation.
(b) The Guarantee is a direct Each Guarantor waives presentation to, demand of payment from and unsecured and unsubordinated obligation protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor ranking pari passu will all other current and future unsecured and unsubordinated debt waives notice of any default under the Guarantor.
(c) In Notes or the case Guaranteed Obligations. The obligations of default by the Corporation, the Trustee each Guarantor hereunder shall not be bound affected by (i) the failure of any Holder or obligated the Trustee to proceed against the Corporation assert any claim or demand or to take any other action before being entitled to demand payment from the Guarantor hereunder. The Guarantor hereby waives any requirement that the Trustee protect, secure, perfect or insure any security interest or lien on any property subject thereto or exhaust enforce any right or take any action remedy against any person the Company or any collateral (including any rights relating to marshalling of assets).
(d) The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of an arrangement, merger, amalgamation, insolvency or bankruptcy of the Corporation, protest or notice with respect to any Note or the indebtedness evidenced thereby and all demands whatsoever, and covenants that its obligations other Person under this Article 3 and the Guarantee will not be discharged as to any Notes except by payment in full of the principal, premium, if any, Additional Amounts, if any, and interest to Registered Holders of such Notes.
(e) The obligation of the Guarantor under this Indenture and the Guarantee shall be a continuing obligation and a fresh cause of action hereunder shall be deemed to arise in respect of each default by the Corporation in the payment of principal, premium, if any, interest or any Additional Amounts.
(f) The Guarantor shall not be or become liable under the Guarantee to make any payment of principal, premium, if any, interest or Additional Amounts in respect of which the Corporation shall be in default if the default of the Corporation in respect of which the Guarantor would otherwise be or become liable under the Guarantee shall have been waived or directed to be waived pursuant to the provisions contained in this Indenture, providedthe Notes or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, howeverthe Notes or any other agreement; (iii) any rescission, that no waiver waiver, amendment or consent modification of any kind whatsoever shall release, alter or impair the unconditional obligations of the Guarantor hereunder after giving effect to such waiver terms or consent.
(g) The Guarantor shall be subrogated to all rights of the Registered Holder of each Note and the holders of any interest therein against the Corporation in respect of any amount paid by the Guarantor under this Indenture or pursuant to the provisions of the Guarantee, provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and premium, if any, interest and Additional Amounts on all Notes issued under this Indenture shall have been paid in full.
(h) No remedy for the enforcement of the rights of the Registered Holder of any Note to receive payment of principal, premium, if any, interest and/or Additional Amounts on any Note in accordance with the terms under such Note, the Guarantee endorsed on such Note, and under this Indenture shall be exclusive of or dependent on any other remedy.
(i) If any moneys become payable by the Guarantor hereunder, the Trustee shall be entitled to enforce and receive payment thereof by the Guarantor, for the benefit of the Registered Holders of the Notes, and shall be entitled to recover judgment against the Guarantor for any portion of the same remaining unpaid. The whole of the moneys from time to time received by the Trustee hereunder shall be applied by the Trustee in accordance with the provisions of this Indenture.
(j) The liability of , the Guarantor to the extent herein set forth shall be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of any agreement between the Corporation and the Trustee and each Registered Holder of a Note or of the Guarantee of any other guarantor of the obligations;
(ii) any impossibility, impracticability, frustration of purpose, illegality, force majeure or act of government;
(iii) the bankruptcy, winding-up, liquidation, dissolution or insolvency of the Corporation Notes or any other guarantor or person or the amalgamation of or any change in the status, function, control or ownership of, the Corporation, the Guarantor, the Trustee or any other person;
agreement; (iv) the release of any lack security held by any Holder or limitation of power, incapacity or disability on the part of the Corporation or of the directors, partners or agents thereof or any other immaterial irregularity, defect or informality on the part of the Corporation in its obligations to the Trustee and each Registered Holder of Notes; or
(v) any other law, regulation or order that might otherwise constitute a defence available to, or a discharge of, the Corporation in respect of any or all of its obligations hereunder.
(k) The Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any principal, premium (if any), interest or any Additional Amounts payable to the Registered Holders of the Notes is rescinded or must otherwise be returned by the Trustee or any Registered Holder of the Notes upon the insolvency, bankruptcy or reorganization of the Corporation or in connection with any challenge with respect to amounts paid on defeasance or otherwise, all as though such payment had not been made.
(l) The Guarantor shall, subject to the exceptions and limitations set forth in clauses (i) through (xi) below and subject to the further exception that the Corporation shall not have then paid, pay such additional amounts (the “Additional Amounts”) to any holder of a Note who, for United States federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident fiduciary of a foreign estate or trust, or a foreign partnership, one or more of the members of which is a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust (a “United States Alien”) as may be necessary in order that every net payment of the principal and interest, including original issue discount, on such Note after withholding for or on account of any present or future tax, assessment or governmental charge imposed upon or as a result of such payment by the United States (or any political subdivision or taxing authority thereof or therein), will not be less than the amount provided for in such Note to be then due and payable. However, the Guarantor will not be required to make any payment of Additional Amounts to any such holder for or on account of:
(i) any such tax, assessment or other governmental charge which would not have been so imposed but for the existence of any present Guaranteed Obligations or former connection between such holder (or between a fiduciary, settlor, beneficiary, member or shareholder of such holder, if such holder is an estate, a trust, a partnership or a corporation) and the United States, including, without limitation, such holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein, or having or having had a permanent establishment therein;
(ii) any tax, assessment or other governmental charge imposed by reason of such holder’s past or present status for United States federal income tax purposes as a personal holding company or foreign personal holding company or controlled foreign corporation or passive foreign investment company or as a corporation which accumulates earnings to avoid United States federal income tax or as a private foundation or other tax-exempt organization;
(iii) any tax, assessment or other governmental charge which would not have been so imposed but for the presentation by the holder of any Notes of any series or tranche for payment on a date more than 60 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(iv) any estate, inheritance, gift, sales, transfer, excise or personal property tax or any similar tax, assessment or governmental charge;
(v) any tax, assessment or other governmental charge imposed by reason of such holder’s past or present status as the actual or constructive owner of 10 per cent or more of the total combined voting power of all classes of stock entitled to vote of the Corporation or the Guarantor, or as a direct or indirect subsidiary of the Corporation or the each Guarantor;
(vi) any tax, assessment or other governmental charge imposed on interest or other amounts received by a bank on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(vii) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information or other reporting requirements concerning the nationality, residence or identity of the holder or beneficial owner of such Note if such compliance is required by statute or by regulation of the United States or of any political subdivision or taxing authority thereof or therein as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(viii) any tax, assessment or other governmental charge that would not have been so imposed but for the holder being or having been a person within a country with respect to which the United States Treasury Department has determined, on or before the original issue date of the Note, under sections 871(h)(6) and 881(c)(6) of the Internal Revenue Code of 1986, as amended, (the “Code”), that payments of interest to persons within such country are not subject to the repeal of the United States withholding tax provided for in Sections 871(h) and 881(c) of the Code;
(ix) any tax, assessment or other governmental charge imposed on a holder that is a United States Person as defined in section 7701(a)(30) of the Code;
(x) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments on or in respect of any Note; or
(xi) any combination of the foregoing items; nor shall Additional Amounts be paid with respect to any payment on a Note to a United States Alien who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the United States (or any political subdivision thereof) to be included in the income, for tax purposes, of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the holder of the Note (for clarity and avoidance of doubt the obligation to pay Additional Amounts under this Indenture shall only be an obligation of either the Corporation or the Guarantor but not both the Corporation and the Guarantor, unless the Corporation defaults in its payment thereof);
(m) Except as specifically provided in this Indenture, the Guarantor shall not be required to make any payment to or in respect of a Registered Holder with respect to any tax, assessment or other governmental charge imposed by any government or any political subdivision or taxing authority thereof or therein. Whenever in this Indenture there is a reference, in any context, to the payment of the principal of, premium (if any) on, interest on, any Note, such mention shall be deemed to include mention of the payment of Additional Amounts provided for herein to the extent that, in such context, Additional Amounts, are, were or would be payable in respect thereof pursuant to the provisions hereof and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
(n) The liabilities of the Guarantor hereunder and under the Guarantee shall not be released, discharged, limited or in any way affected by anything done, suffered or permitted by the Trustee or any Registered Holder in connection with this Indenture or with the Corporation. It is agreed that the Trustee and any Registered Holder, without releasing, discharging, limiting or otherwise affecting in whole or in part the Guarantor’s liabilities hereunder or under the Guarantee, may, without limiting the generality of the foregoing:
(i) grant time, renewals, extensions, indulgences, releases and discharges to the Corporation;
(ii) accept compromises from the Corporation; or
(iii) otherwise deal with the Corporation and all other Persons, including any other guarantor, as the Trustee or such Registered Holder may see fit.
Appears in 1 contract
Guarantee of Notes. (a) The Each Guarantor covenants with hereby jointly and severally, irrevocably and unconditionally guarantees, on a senior basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee for and its successors and assigns (i) the benefit of each holder of Notes that it hereby unconditionally guarantees the due performance and punctual payment of the principal amount of, premium (if any including, without limitation, any redemption premium, if any) on, interest on (including, in case of default, interest on the amount in default) and any Additional Amounts (as defined below) in respect of each Note when and as the same shall become due and payabledue, whether at their respective due dates or on declaration Stated Maturity, by acceleration or otherwise, in accordance with of all obligations of the terms of such Note and of Company under this Indenture providedand the Notes, however, that whether for payment of interest on overdue instalments of interest is hereby guaranteed only to the extent permitted by applicable law and provided further that any payments to be made by the Guarantor hereunder shall not be reduced by any remuneration, expenses, disbursements or advances which may be applied by the Trustee in accordance with Section 5.9(a). In the case of default by the Corporation in the payment of any such principalprincipal of, premium, if any, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or any Additional Amounts payable to otherwise under this Indenture and the Registered Holder of a Note, Notes (all the Guarantor agrees duly and punctually to pay the same on demand. Reference to foregoing being hereinafter collectively called the “Guarantee” herein refers to Guaranteed Obligations”). The Guaranteed Obligations of all Guarantors shall be unsecured. Each Guarantor further agrees that the guarantee provided for by the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from any Guarantor, and that each Guarantor in shall remain bound under this Article 3 and includes X notwithstanding any guarantee endorsed on a Note pursuant to Section 3.3 hereof. The Guarantee is a guarantee extension or renewal of payment and not of collectionany Guaranteed Obligation.
(b) The Guarantee is a direct Each Guarantor waives presentation to, demand of payment from and unsecured and unsubordinated obligation protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor ranking pari passu will all waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other current and future unsecured and unsubordinated debt Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (iv) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or each Guarantor; (v) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of each Guarantor, except as provided in Section 10.02(b). Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed.
(c) In the case of default by the Corporation, the Trustee shall not be bound or obligated to proceed against the Corporation or to take any other action before being entitled to demand payment from the Guarantor hereunder. The Each Guarantor hereby waives any requirement right to which it may be entitled to have the assets of the Company first be used and depleted as payment of the Company’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Trustee protect, secure, perfect or insure any security interest or lien on any property subject thereto or exhaust any right or take any Company be sued prior to an action being initiated against any person or any collateral (including any rights relating to marshalling of assets)such Guarantor.
(d) The Each Guarantor hereby waives diligence, presentment, demand further agrees that its Guarantee herein constitutes a guarantee of payment, filing performance and compliance when due (and not a guarantee of claims with a court in collection) and waives any right to require that any resort be had by any Holder or the event of an arrangement, merger, amalgamation, insolvency or bankruptcy Trustee to any security held for payment of the Corporation, protest or notice with respect to any Note or the indebtedness evidenced thereby and all demands whatsoever, and covenants that its obligations under this Article 3 and the Guarantee will not be discharged as to any Notes except by payment in full of the principal, premium, if any, Additional Amounts, if any, and interest to Registered Holders of such NotesGuaranteed Obligations.
(e) The obligation of the Guarantor under this Indenture and the Guarantee shall be a continuing obligation and a fresh cause of action hereunder shall be deemed to arise in respect of each default by Guarantor is, to the Corporation extent and in the manner set forth in this Article X, equal in right of payment to all existing and future Pari Passu Debt and senior in right of principal, premium, if any, interest or any Additional Amountspayment to all existing and future Subordinated Obligations of such Guarantor.
(f) The Except as expressly set forth in Sections 8.01(b), 10.02 and 10.05, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or become liable under the Guarantee termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to make any payment defense of principalsetoff, premiumcounterclaim, if any, interest recoupment or Additional Amounts in respect of which the Corporation shall be in default if the default termination whatsoever or by reason of the Corporation in respect invalidity, illegality or unenforceability of which the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor would herein shall not be discharged or impaired or otherwise be affected by the failure of any Holder or become liable the Trustee to assert any claim or demand or to enforce any remedy under the Guarantee shall have been waived or directed to be waived pursuant to the provisions contained in this Indenture, providedthe Notes or any other agreement, however, that no by any waiver or consent modification of any kind whatsoever shall releasethereof, alter by any default, failure or impair delay, willful or otherwise, in the unconditional obligations 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 any Guarantor hereunder after giving effect to such waiver or consentwould otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(g) The Each Guarantor agrees that its Guarantee shall be subrogated to remain in full force and effect until payment in full of all rights of the Registered Holder of each Note and the holders of any interest therein against the Corporation in respect of any amount paid by the Guaranteed Obligations. Each Guarantor under this Indenture or pursuant to the provisions of the Guarantee, provided, however, further agrees that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and premium, if any, interest and Additional Amounts on all Notes issued under this Indenture shall have been paid in full.
(h) No remedy for the enforcement of the rights of the Registered Holder of any Note to receive payment of principal, premium, if any, interest and/or Additional Amounts on any Note in accordance with the terms under such Note, the its Guarantee endorsed on such Note, and under this Indenture shall be exclusive of or dependent on any other remedy.
(i) If any moneys become payable by the Guarantor hereunder, the Trustee shall be entitled to enforce and receive payment thereof by the Guarantor, for the benefit of the Registered Holders of the Notes, and shall be entitled to recover judgment against the Guarantor for any portion of the same remaining unpaid. The whole of the moneys from time to time received by the Trustee hereunder shall be applied by the Trustee in accordance with the provisions of this Indenture.
(j) The liability of the Guarantor to the extent herein set forth shall be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of any agreement between the Corporation and the Trustee and each Registered Holder of a Note or of the Guarantee of any other guarantor of the obligations;
(ii) any impossibility, impracticability, frustration of purpose, illegality, force majeure or act of government;
(iii) the bankruptcy, winding-up, liquidation, dissolution or insolvency of the Corporation or any other guarantor or person or the amalgamation of or any change in the status, function, control or ownership of, the Corporation, the Guarantor, the Trustee or any other person;
(iv) any lack or limitation of power, incapacity or disability on the part of the Corporation or of the directors, partners or agents thereof or any other immaterial irregularity, defect or informality on the part of the Corporation in its obligations to the Trustee and each Registered Holder of Notes; or
(v) any other law, regulation or order that might otherwise constitute a defence available to, or a discharge of, the Corporation in respect of any or all of its obligations hereunder.
(k) The Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any principalpayment, premium (if any), interest or any Additional Amounts payable to the Registered Holders part thereof, of the Notes principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be returned restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(h) 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 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 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 (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders and the Trustee.
(i) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each 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 guaranteed hereby may be accelerated as provided in Article VI for the purposes of the Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purposes of this Section 10.01.
(j) Each Guarantor also agrees to pay any and all costs and expenses (including reasonable out-of-pocket attorneys’ fees and expenses) Incurred by the Trustee or any Registered Holder of the Notes upon the insolvency, bankruptcy or reorganization of the Corporation or in connection with enforcing any challenge with respect to amounts paid on defeasance or otherwise, all as though such payment had not been maderights under this Section 10.01.
(lk) The Guarantor shall, subject to the exceptions and limitations set forth in clauses (i) through (xi) below and subject to the further exception that the Corporation shall not have then paid, pay such additional amounts (the “Additional Amounts”) to any holder of a Note who, for United States federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident fiduciary of a foreign estate or trust, or a foreign partnership, one or more Upon request of the members of which is a foreign corporationTrustee, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust (a “United States Alien”) each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary in order that every net payment or proper to carry out more effectively the purpose of the principal and interest, including original issue discount, on such Note after withholding for or on account of any present or future tax, assessment or governmental charge imposed upon or as a result of such payment by the United States (or any political subdivision or taxing authority thereof or therein), will not be less than the amount provided for in such Note to be then due and payable. However, the Guarantor will not be required to make any payment of Additional Amounts to any such holder for or on account of:
(i) any such tax, assessment or other governmental charge which would not have been so imposed but for the existence of any present or former connection between such holder (or between a fiduciary, settlor, beneficiary, member or shareholder of such holder, if such holder is an estate, a trust, a partnership or a corporation) and the United States, including, without limitation, such holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein, or having or having had a permanent establishment therein;
(ii) any tax, assessment or other governmental charge imposed by reason of such holder’s past or present status for United States federal income tax purposes as a personal holding company or foreign personal holding company or controlled foreign corporation or passive foreign investment company or as a corporation which accumulates earnings to avoid United States federal income tax or as a private foundation or other tax-exempt organization;
(iii) any tax, assessment or other governmental charge which would not have been so imposed but for the presentation by the holder of any Notes of any series or tranche for payment on a date more than 60 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(iv) any estate, inheritance, gift, sales, transfer, excise or personal property tax or any similar tax, assessment or governmental charge;
(v) any tax, assessment or other governmental charge imposed by reason of such holder’s past or present status as the actual or constructive owner of 10 per cent or more of the total combined voting power of all classes of stock entitled to vote of the Corporation or the Guarantor, or as a direct or indirect subsidiary of the Corporation or the Guarantor;
(vi) any tax, assessment or other governmental charge imposed on interest or other amounts received by a bank on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(vii) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information or other reporting requirements concerning the nationality, residence or identity of the holder or beneficial owner of such Note if such compliance is required by statute or by regulation of the United States or of any political subdivision or taxing authority thereof or therein as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(viii) any tax, assessment or other governmental charge that would not have been so imposed but for the holder being or having been a person within a country with respect to which the United States Treasury Department has determined, on or before the original issue date of the Note, under sections 871(h)(6) and 881(c)(6) of the Internal Revenue Code of 1986, as amended, (the “Code”), that payments of interest to persons within such country are not subject to the repeal of the United States withholding tax provided for in Sections 871(h) and 881(c) of the Code;
(ix) any tax, assessment or other governmental charge imposed on a holder that is a United States Person as defined in section 7701(a)(30) of the Code;
(x) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments on or in respect of any Note; or
(xi) any combination of the foregoing items; nor shall Additional Amounts be paid with respect to any payment on a Note to a United States Alien who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the United States (or any political subdivision thereof) to be included in the income, for tax purposes, of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the holder of the Note (for clarity and avoidance of doubt the obligation to pay Additional Amounts under this Indenture shall only be an obligation of either the Corporation or the Guarantor but not both the Corporation and the Guarantor, unless the Corporation defaults in its payment thereof);
(m) Except as specifically provided in this Indenture, the Guarantor shall not be required to make any payment to or in respect of a Registered Holder with respect to any tax, assessment or other governmental charge imposed by any government or any political subdivision or taxing authority thereof or therein. Whenever in this Indenture there is a reference, in any context, to the payment of the principal of, premium (if any) on, interest on, any Note, such mention shall be deemed to include mention of the payment of Additional Amounts provided for herein to the extent that, in such context, Additional Amounts, are, were or would be payable in respect thereof pursuant to the provisions hereof and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
(n) The liabilities of the Guarantor hereunder and under the Guarantee shall not be released, discharged, limited or in any way affected by anything done, suffered or permitted by the Trustee or any Registered Holder in connection with this Indenture or with the Corporation. It is agreed that the Trustee and any Registered Holder, without releasing, discharging, limiting or otherwise affecting in whole or in part the Guarantor’s liabilities hereunder or under the Guarantee, may, without limiting the generality of the foregoing:
(i) grant time, renewals, extensions, indulgences, releases and discharges to the Corporation;
(ii) accept compromises from the Corporation; or
(iii) otherwise deal with the Corporation and all other Persons, including any other guarantor, as the Trustee or such Registered Holder may see fit.
Appears in 1 contract