Guarantee of the Notes. Subject to Section 11.06 hereof, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes and the Obligations of the Company hereunder and thereunder, that: (a) the principal of and premium, interest and Liquidated Damages, if any, on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal, premium, interest on any interest (to the extent permitted by law), and Liquidated Damages, if any, on the Notes, and all other payment Obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Guarantees of the Notes, and shall entitle the Holders to accelerate the Obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Guarantee of the Notes will not be discharged except by complete performance of the Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors, or any Note Custodian, Trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to, and hereby waives, any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article 6 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantees of the Notes.
Appears in 1 contract
Sources: Indenture (Dyersburg Corp)
Guarantee of the Notes. Subject to Section 11.06 hereof, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes and the Obligations of the Company hereunder and thereunder, that: (a) The Company will not permit any Restricted Subsidiary to Guarantee any Indebtedness (other than (A) Indebtedness and other obligations under the principal Credit Agreement, (B) Permitted Indebtedness of and premiuma Restricted Subsidiary, interest and Liquidated Damages(C) Indebtedness under any Currency Agreements or Commodity Agreements in reliance on clause (vi) of the definition of Permitted Indebtedness, if any(D) Hedging Obligations incurred in reliance on clause (iv) of the definition of Permitted Indebtedness, or (E) Indebtedness incurred in reliance on clause (x) of the definition of Permitted Indebtedness), unless such Restricted Subsidiary enters into or has entered into a Guarantee of the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal, premium, interest on any interest (to the extent permitted by law), and Liquidated Damages, if any, on the Notes, and all other payment Obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of this Indenture (except if such Guarantee is a Guarantee by a Foreign Subsidiary solely of the extension or renewal, subject to any applicable grace period, whether at stated maturity, Indebtedness of another Foreign Subsidiary).
(b) Any such Guarantee of the Notes by acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason the Guarantors a Restricted Subsidiary will be jointly and severally obligated subordinated to pay all Guarantor Senior Debt of such Subsidiary, including any guarantee by such Restricted Subsidiary of the Company's obligations under the Credit Agreement, on substantially the same immediately. An Event of Default under this Indenture or terms as the Notes shall constitute an event of default under the Guarantees of the Notes, and shall entitle the Holders are subordinated to accelerate the Obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations Senior Debt of the Company. The Guarantors hereby agree Any such Guarantee by a Restricted Subsidiary will be limited in amount to an amount not to exceed the maximum amount that their Obligations hereunder shall can be unconditionalguaranteed by that Restricted Subsidiary without rendering such Guarantee voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally. Notwithstanding the foregoing, irrespective of the validity, regularity or enforceability any such Guarantee by a Restricted Subsidiary of the Notes or this Indentureshall provide by its terms that it shall be automatically and unconditionally released and discharged, without any further action required on the absence part of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Guarantee of the Notes will not be discharged except by complete performance of the Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors, or any Note Custodian, Trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such any Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to, and hereby waives, any right upon: (i) release of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration Restricted Subsidiary from its liability in respect of the Obligations guaranteed herebyIndebtedness in connection with which such Guarantee was executed and delivered pursuant to the preceding paragraph (including any deemed release upon payment in full of all obligations under such Indebtedness); or (ii) sale or other disposition of a Restricted Subsidiary that is a Guarantor (other than to the Company or an Affiliate of the Company) permitted by this Indenture, and (y) in provided that the event of any declaration of acceleration proceeds of such Obligations as provided sale or disposition are applied in Article 6 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by accordance with the Guarantors for the purpose of this Guaranteeprovisions described under Section 4.15. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantees of the Notes.ARTICLE FIVE
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Guarantee of the Notes. Subject to Section 11.06 hereofthe provisions of this Article 10, each of the Guarantors herebyGuarantor, jointly and severally, by execution of this Fourth Supplemental Indenture, fully, unconditionally guarantees and irrevocably guarantees, as primary obligor and not merely as surety (the “Guarantee”), to each Holder of a Note authenticated and delivered by the Trustee and Notes, to the Trustee extent permitted by applicable law or regulation, (i) the due and its successors and assigns, irrespective punctual payment of the validity and enforceability of this Indenture, the Notes and the Obligations of the Company hereunder and thereunder, that: (a) the principal of and premiuminterest on each Note, interest when and Liquidated Damages, if any, on as the Notes will be promptly paid in full when due, subject to any applicable grace periodsame shall become due and payable, whether at maturity, by acceleration, by redemption or otherwise, the due and punctual payment of interest on the overdue principal of and interest on the overdue principalNotes (including without limitation interest accruing after the filing of any petition in bankruptcy, premiumor the commencement of any insolvency, reorganization or like proceeding, relating to the Company or any Guarantor whether or not a claim for post-filing or post-petition interest on any interest (is allowed in such proceeding and obligations under Section 6.7 of the Base Indenture), to the extent permitted by law)lawful, and Liquidated Damages, if any, on the Notes, due and punctual payment of all other payment Obligations obligations (including Additional Amounts) and due and punctual performance of all obligations of the Company to the Holders of the Notes or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the terms hereof of the Notes and thereof; the Indenture, and (bii) in the case of any extension of time of payment or renewal of any Notes or any of such other Obligationsobligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration, redemption acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason reason, the Guarantors will shall be jointly and severally obligated to pay the same immediately. An Event Each Guarantor, by execution of Default under this Indenture Fourth Supplemental Indenture, agrees that its obligations hereunder shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Note or the Indenture, any failure to enforce any provision of the Notes shall constitute an event of default under or the Guarantees Indenture, any waiver, modification or indulgence granted to the Company with respect thereto by Holders of the Notes, and shall entitle the Holders to accelerate the Obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance circumstances which might may otherwise constitute a legal or equitable discharge of a surety or such Guarantor. Except as set forth in this Section 10.1, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation (other than as set forth in Section 10.4), impairment or termination for any reason (other than as set forth in Section 10.5), 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 obligations set forth in this Section 10.1 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 (a) the failure of any Holders of the Notes to assert any claim or demand or to enforce any right or remedy against the Company or any other person under the Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder; (e) the failure of any Holder of the Notes to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in the performance of the obligations set forth herein, or (h) 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 Guarantordischarge of such Guarantor as a matter of law or equity. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, also agrees to pay any right to require a proceeding first against the Company, protest, notice and all demands whatsoever fees, costs and covenants that this Guarantee of the Notes will not be discharged except expenses (including reasonable attorneys’ fees and expenses) incurred by complete performance of the Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors, or any Note Custodian, Trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to, and hereby waives, any right of subrogation in relation to the Holders in respect of enforcing any Obligations guaranteed herebyrights under this Article. Each Guarantor further agrees that, as between the Guarantors, on the one hand, that its Guarantee herein constitutes a Guarantee of payment when due (and the Holders not a Guarantee of collection) and the Trustee, on the other hand, (x) the maturity waives any right to require that any resort be had by any Holder of the Obligations guaranteed hereby may be accelerated as provided in Article 6 Notes to any security held for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect payment of the Obligations guaranteed hereby, and (y) obligations set forth in the event of any declaration of acceleration of such Obligations as provided in Article 6 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantees of the NotesSection 10.1.
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Guarantee of the Notes. Subject to Section 11.06 hereof, each (a) The Guaranteed Obligations (as defined below) of the Guarantors herebyIssuer pursuant to the Notes, jointly including any repurchase obligation resulting from a Change of Control, shall be unconditionally guaranteed by the New Guarantor, which Guarantee may be released at any time after the issuance of the Notes at the option of the Issuer and severallythe New Guarantor.
(b) The New Guarantor agrees that its Guarantee shall remain in full force and effect until the earlier of (i) payment in full of all the Guaranteed Obligations and (ii) such time following the issuance of the Notes that the Issuer and the New Guarantor elect in their sole discretion to release such Guarantee.
(c) The New Guarantor hereby unconditionally guarantees, unconditionally guarantees as a primary obligor and not merely as a surety, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assignsassigns (i) the full and punctual payment when due, irrespective whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the validity Issuer under the Indenture (including obligations to the Trustee) and enforceability the Notes, whether for payment of this principal of, premium, if any, or interest on in respect of the Notes and all other monetary obligations of the Issuer under the Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Issuer whether for fees, expenses, indemnification or otherwise under the Indenture and the Notes (all the foregoing being hereinafter collectively called the "Guaranteed Obligations").
(d) The New Guarantor waives presentation to, demand of payment from and protest to the Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. The New Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of the New 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 Issuer or any other Person under the Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of the Indenture, the Notes or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of the 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 the New Guarantor; (v) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of the New Guarantor, except as provided in Section 1.02(b).
(e) The New Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuer first be used and depleted as payment of the Issuer's or the New Guarantor's obligations hereunder prior to any amounts being claimed from or paid by the New Guarantor hereunder. The New Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against the New Guarantor.
(f) The New 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.
(g) In the event the Issuer terminates its obligations under the Notes and the Obligations Indenture by exercising its Legal Defeasance option or its Covenant Defeasance option under Section 8.02 of the Company Indenture, the obligations of the New Guarantor under its Guarantee of the Notes shall be terminated simultaneously with the termination of such obligations.
(h) Except as set forth in Sections 1.01(g) and 1.02 of this Supplemental Indenture, the obligations of the New 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 thereundershall not be subject to any defense of setoff, that: 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 the New 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 the 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 the New Guarantor or would otherwise operate as a discharge of the New Guarantor as a matter of law or equity.
(ai) 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 the New Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal of or interest on any Guaranteed Obligation when and premium, interest and Liquidated Damages, if any, on as the Notes will be promptly paid in full when same shall become due, subject to any applicable grace period, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, the New Guarantor hereby promises to and interest on shall, upon receipt of written demand by the overdue principalTrustee, premiumforthwith pay, interest on any interest (or cause to the extent permitted by law)be paid, and Liquidated Damagesin cash, if any, on the Notes, and all other payment Obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with an amount equal to the terms hereof and thereof; and sum of (bi) in case of any extension of time of payment or renewal of any Notes or any the unpaid principal amount of such other Guaranteed Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason the Guarantors will be jointly (ii) accrued and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Guarantees of the Notes, and shall entitle the Holders to accelerate the unpaid interest on such Guaranteed Obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Guarantee of the Notes will not be discharged except by complete performance of the Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors, or any Note Custodian, Trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Guarantee, (but only to the extent theretofore discharged, shall be reinstated in full force not prohibited by applicable law) and effect. Each (iii) all other monetary obligations of the Issuer to the Holders and the Trustee.
(j) The New Guarantor agrees that it shall not be entitled to, and hereby waives, to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed herebyhereby until payment in full of all Guaranteed Obligations. Each The New Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of this Guaranteeany Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, hereby and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6 hereofof the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors New Guarantor for the purposes of this Section 1.01.
(k) The New Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys' fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 1.01.
(l) Upon request of the Trustee, the New 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 Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantees of the NotesSupplemental Indenture.
Appears in 1 contract
Guarantee of the Notes. Subject to Section 11.06 hereofEach Guarantor unconditionally guarantees, as a primary obligor and not merely as a surety, jointly and severally with each other Guarantor, the due and punctual payment of the principal of, and interest on, each of the Guarantors hereby, jointly Notes when and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes and the Obligations of the Company hereunder and thereunder, that: (a) the principal of and premium, interest and Liquidated Damages, if any, on the Notes will be promptly paid in full when as due, subject to any applicable grace period, whether at maturity, by acceleration, redemption by notice of prepayment or otherwise, otherwise and interest on the overdue principal, premium, interest on any interest (to the extent permitted by law), due and Liquidated Damages, if any, on the Notes, punctual payment and performance of all other payment Obligations of the Company Borrower with respect to the Holders Notes (the "GUARANTEED OBLIGATIONS"). Each Guarantor further agrees that the Guaranteed Obligations may be extended and renewed, in whole or the Trustee hereunder in part, without notice to or thereunder further assent from it, and that it will be promptly paid in full and performed, all in accordance with the terms hereof and thereof; and (b) in case of remain bound upon its guarantee notwithstanding any extension of time of payment or renewal of any Guaranteed Obligations. Each Guarantor waives presentment to, demand of payment from and protest to the Borrower of any of the Guaranteed Obligations, and also waives notice of acceptance of its guarantee and notice of protest for nonpayment. The obligations of a Guarantor hereunder shall not be affected by (a) the failure of any Noteholder to assert any claim or demand or to enforce any right or remedy against the Borrower, as the case may be, or any other Guarantor under the provisions of this Agreement, the Notes or any of such the other ObligationsSubordinated Notes Documents or otherwise; (b) any rescission, waiver, amendment or modification of any of the terms or provisions of this Agreement, the same will be promptly paid in full when due Notes, any guarantee or performed in accordance with any other agreement; (c) the terms failure of any Noteholder to exercise any right or remedy against any other Guarantor of any obligations hereunder; or (d) the failure of any Noteholder to take, register, perfect or preserve any security for any of the extension or renewal, obligations hereunder. The obligations of each Guarantor hereunder shall not be subject to any applicable grace periodreduction, whether at stated maturitylimitation, impairment or termination for any reason, including, without limitation, any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or set off, counterclaim, recoupment or termination whatsoever by accelerationreason of the invalidity, redemption illegality or unenforceability of the Guaranteed Obligations or otherwise. Failing payment when so due 45 Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by the failure of any amount so guaranteed Noteholder to assert any claim or demand or to enforce any performance so guaranteed for whatever reason the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default remedy under this Indenture or the Notes shall constitute an event of default under the Guarantees of Agreement, the Notes, and shall entitle the Holders to accelerate the Obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their Obligations hereunder shall be unconditionalor under any other guarantee or any other agreement, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, by any waiver or consent modification of any provision thereof, by any Holder with respect default, failure or delay, willful or otherwise, in the performance of any Guaranteed Obligations, or by any other act or omission which may or might otherwise in any manner or to any provisions hereof extent vary the risk or reduce or extinguish the liability of such Guarantor or otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantor further agrees that its guarantee shall be a continuing guarantee and shall stand as a guarantee of full and final payment and performance of all Guaranteed Obligations hereunder from time to time and shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal or interest on any obligation hereunder is rescinded or must otherwise be returned by the recovery Noteholders upon the bankruptcy or reorganization of any judgment against the Company, any action to enforce the same Borrower or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantorotherwise. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court and releases in the event of insolvency or bankruptcy favor of the Company, any right to require a proceeding first against the Company, protest, notice and Noteholders all demands whatsoever and covenants that this Guarantee of the Notes will not be discharged except by complete performance of the Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors, or any Note Custodian, Trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to, and hereby waives, any right rights of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of this Guarantee, notwithstanding any stay, injunction against or other prohibition preventing such acceleration in respect of the Obligations guaranteed herebyBorrower and its property and all rights of indemnification, contribution and reimbursement from the Borrower and its property, in each case in connection with this guarantee and any payments made hereunder, and (y) regardless of whether such rights arise by operation of law, pursuant to contract or otherwise until such time as the obligations hereunder have been fully and finally performed and paid. If, in any action to enforce this guaranty or any proceeding to allow or adjudicate a claim under this guaranty, a court of competent jurisdiction determined that enforcement of this guaranty against any Guarantor for the event full amount of the obligations hereunder is not lawful under, or would be subject to avoidance under, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code or any declaration applicable provision of acceleration comparable state law, the liability of such Obligations as provided in Article 6 hereof, Guarantor under this guaranty shall be limited to the maximum amount lawful and not subject to avoidance under such Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Guaranteelaw. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantees of the Notes.[THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY]
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