Guarantee of Notes. (a) Each Guarantor 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 and its successors and assigns (i) the performance and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all obligations of the Company under this Indenture and the Notes, whether for payment of principal 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 otherwise under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). The Guaranteed Obligations of all Guarantors shall be unsecured. Each Guarantor further agrees that 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 shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation. (b) Each 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 Guarantor 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 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;
Appears in 1 contract
Guarantee of Notes. (a) Each The Guarantor 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 covenants with the Trustee that the Corporation will pay and its successors and assigns (i) hereby unconditionally guarantees the performance due and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all obligations of the Company principal amount of, premium (if any) on, interest on (including, in case of default, interest on the amount in default) and any Additional Amount in respect of each Note when and as the same shall become due and 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. The Guarantee is a guarantee of payment and not of collection. The Guarantee is a direct and unsecured obligation of the Guarantor ranking pari passu with all other current and future senior unsecured debt of the Guarantor, 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). The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of arrangement, merger, amalgamation, insolvency or bankuptcy of the Corporation, protest or notice with respect to any Notes or the indebtedness evidenced thereby and all demands whatsoever, and covenants that its obligations under this Indenture Article Three and the Notes, whether for Guarantee will not be discharged as to any Notes except by payment in full of principal ofthe principal, premium, if any, Additional Amounts, if any, and interest or interest on the Notes and all other monetary obligations amounts payable to Registered Holders of such Notes. The obligation of the Company Guarantor under this Indenture shall be a continuing obligation and a fresh cause of action hereunder shall be deemed to arise in respect of each default. The Guarantor shall not be or become liable hereunder or under any Guarantee to make any payment of principal, premium, if any, interest or Additional Amounts in respect 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 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 obligation of the Guarantor hereunder or under any Guarantee after giving effect to such waiver or consent. 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 pursuant to the provisions of 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 and (ii) shall have been paid in full. No remedy for the full and punctual performance within applicable grace periods of all other obligations enforcement of the Company rights of the holder of any Note to receive payment of the principal of and/or premium and/or interest and/or Additional Amounts on any Note in accordance with their terms under such Note, the Guarantee endorsed on such Note, and hereunder shall be exclusive of or dependent on any other remedy. 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 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 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, 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 for feesby reason of any claim of any character whatsoever, expensesincluding, indemnification 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 under this Indenture and the Notes (all whether resulting from default, willful misconduct, negligence or otherwise, and without limiting the foregoing being hereinafter collectively called irrespective of: any lack of validity or enforceability of any agreement or instrument relating to the “Guaranteed Obligations”). The Guaranteed Obligations guaranteed obligations; any change in the time, manner or place of all Guarantors shall be unsecured. Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewedpayment of, in whole or in partany other term in respect of, without notice all or further assent from any Guarantor, and that each Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice guaranteed obligations, or any other amendment or waiver of protest for nonpayment. Each Guarantor waives notice or consent to any departure from any other agreement relating to any guaranteed obligations; any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the guaranteed obligations, or any other amendment or waiver of or consent to any departure from any other agreement relating to any guaranteed obligations; any increase in, addition to, exchange or release of, or nonperfection of any default under lien on 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 Notes indebtedness; any other circumstance which might otherwise constitute a 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 Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i) in respect hereof; the failure absence of any Holder or action on the part of the Trustee to assert obtain payment of the guaranteed obligations from the Corporation; any claim insolvency, bankruptcy, reorganization or demand 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 enforce exercise any right or remedy against the Company 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 assets to another corporation (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 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 withheld or deducted, in which case the Guarantor 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 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 to the Registered Holders of the amounts which would otherwise have been payable pursuant to the Guarantee in the absence of such withholding or deduction provided, however, the foregoing obligation to pay Additional Amounts will not apply to any one or more of the following: any 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 Registered Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or a Person holding a power over, such Registered Holder, if such Registered Holder is an estate, trust, partnership or corporation) and the United States, including without limitation, such Registered Holder (or such fiduciary, settlor, beneficiary, member, shareholder or Person 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 therein or having had a permanent establishment therein, or (B) such Registered Holder's current or former status as a personal holding company, a foreign personal holding 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 a corporation which accumulates earnings to avoid United States federal income tax; any tax, assessment or other governmental charge which would not have been so imposed but for the presentation by the Registered Holder of any Notes of any series 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; any estate, inheritance, gift, sales, transfer, personal property or any similar tax, assessment or other governmental charge; any tax, assessment or other governmental charge imposed on interest received by a Person holding, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Guarantor entitled to vote; any tax, assessment or other governmental charge that would not have been imposed but for the failure by any Registered Holder to comply with certification or identification reporting requirements concerning the nationality, residence, identity or connection with the United States of the Registered Holder or of the beneficial owner of 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 Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge; any tax, assessment or other governmental charge that would not have been so imposed but for the 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; or any tax, assessment or other governmental charge imposed on a Registered Holder that is a United States Person as defined in section 7701(a)(30) of the Code; nor will Additional Amounts be paid to any Registered Holder who is a fiduciary or partnership or other than the sole beneficial owner of the Note to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership, or a beneficial owner of the Note would not have been entitled to payment of the Additional Amounts had such beneficiary, settlor or beneficial owner been the Registered Holder of the Notes. Except as specifically provided in this Indenture, the Notes Guarantor shall not be required to make any payment 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 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 agreement amounts or otherwisein 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. 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: grant time, renewals, extensions, indulgences, releases and discharges to the Corporation; (ii) accept compromises from the Corporation; or otherwise deal with the Corporation and all other Persons, including any extension other guarantor, as the Trustee or renewal such Registered Holder may see fit. Execution and Delivery of this IndentureGuarantee To evidence its Guarantee to the holders of Notes as specified in section 3.02, the Notes or any other agreement; (iii) any rescissionGuarantor 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, waiveromissions, amendment or modification 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 terms or provisions form of this IndentureGuarantee, the Notes or any other agreement; (iv) English language text shall govern, except where applicable law otherwise requires. Each Guarantee shall be executed on behalf of the release of any security held Guarantor by any Holder 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 for or issued by the Guaranteed Obligations or each Guarantor;Corporation, such Note with such Guara
Appears in 1 contract
Sources: Trust Indenture (Caterpillar Financial Services Corp)
Guarantee of Notes. (a) Each The Guarantor 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 covenants with the Trustee and its successors and assigns (i) for the performance 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 dueand as the same shall become due and payable, whether at Stated Maturity, by acceleration their respective due dates or on declaration or otherwise, in accordance with the terms of all obligations such Note and of the Company under this Indenture and the Notesprovided, whether for however, that payment of principal ofinterest 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 Notes 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 other monetary 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 Company 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 full 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 punctual performance within applicable grace periods 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 other obligations classes of stock entitled to vote of the Company whether 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 feesthe failure to comply with certification, expensesinformation or other reporting requirements concerning the nationality, indemnification 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 Notes Guarantor, unless the Corporation defaults in its payment thereof);
(all m) Except as specifically provided in this Indenture, the foregoing being hereinafter collectively called 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 “Guaranteed Obligations”). The Guaranteed Obligations payment of all Guarantors the principal of, premium (if any) on, interest on, any Note, such mention shall be unsecureddeemed 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. Each Guarantor further agrees It is agreed that the Guaranteed Obligations may be extended Trustee and any Registered Holder, without releasing, discharging, limiting or renewed, otherwise affecting in whole or in partpart the Guarantor’s liabilities hereunder or under the Guarantee, may, without notice or further assent from any Guarantor, and that each Guarantor shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and protest to limiting the Company of any generality of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by foregoing:
(i) grant time, renewals, extensions, indulgences, releases and discharges to the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; Corporation;
(ii) any extension or renewal of this Indenture, accept compromises from the Notes or any other agreementCorporation; or
(iii) any rescissionotherwise deal with the Corporation and all other Persons, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or including any other agreement; (iv) the release of any security held by any Holder or guarantor, as the Trustee for the Guaranteed Obligations or each Guarantor;such Registered Holder may see fit.
Appears in 1 contract
Guarantee of Notes. (a) Each Guarantor 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 and its successors and assigns (i) the performance and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all obligations of the Company under this Indenture and the Notes, whether for payment of principal 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 otherwise under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). The Guaranteed Obligations of all Guarantors shall be unsecured. Each Guarantor further agrees that 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 shall remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each 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 Guarantor 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 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) Each Guarantor hereby waives any 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 Company be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Guarantee 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.
(e) The Guarantee of each Guarantor is, to the 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 payment to all existing and future Subordinated Obligations of such Guarantor.
(f) 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 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 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 Notes 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 any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(g) Each Guarantor agrees that its Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each 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.
(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 Holder in enforcing any rights under this Section 10.01.
(k) Upon request of the Trustee, each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
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