Note Guarantees. (a) Subject to the provisions of this Section 10, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, to each Holder of the Notes and the Trustee the due and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims. (b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor. (c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes. (d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless. (e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation. (f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations. (g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations. (h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity. (i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise. (j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding). (k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee. (l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 4 contracts
Sources: Indenture (American Airlines, Inc.), Indenture (American Airlines Inc), Indenture (American Airlines Inc)
Note Guarantees. (a) Subject to the provisions of this Section Article 10, each of the Note Guarantors hereby, jointly and severally with each other Note Guarantor hereby fullyand with Holdings, irrevocably and unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several senior unsecured basis (Holdings on an unsecured senior subordinated basis), 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 or the Trustee the due and punctual payment obligations of the Issuers hereunder or thereunder, that: (a) the principal of (and of, premium, if any) , and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, Notes shall be promptly paid in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender for repayment at the option of any Holder redemption or otherwise, according to and interest on the terms thereof overdue principal of and of this Indenture interest on the Notes, if any, if lawful, and all other obligations Obligations of the Company with respect Issuers to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that thereunder whether for payment of principal of, premium, if any, or interest, on the Guarantor Obligations will rank equally in right of payment with Notes and all other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the monetary obligations of the Guarantors Issuers under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in and the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto Notes shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain promptly paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, thereof; and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, each Note Guarantor, together with Holdings as described in Article 11, shall be jointly and severally, obligated to pay the same immediately. Each Note Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Note Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the terms validity, regularity or provisions enforceability of the Notes, the Holdings Guarantee, any Note Guarantee or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuers, Holdings or any Note Guarantor, any action to enforce the same or any other agreement; (d) circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Note Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the release event of any security held by any Holder for insolvency or bankruptcy of the Guarantor Obligations; (e) the failure of any Holder to exercise Issuers, any right or remedy to require a proceeding first against any other Guarantor; (f) any change in the ownership of Issuers, protest, notice and all demands whatsoever and covenants that this Note Guarantee, as the Company; (g) any defaultcase may be, failure or delay, willful or otherwise, in the shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. Each Note Guarantor Obligations also agrees to pay, in addition to the amount stated above, any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or (h) any Holder in enforcing any rights under this Section 10.01. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers, Holdings, the Note Guarantors or any custodian, trustee, liquidator or other act similar official acting in relation to the Issuers, Holdings or thing the Note Guarantors, any amount paid either to the Trustee or omission or delay such Holder and this Note Guarantee, to do any other act or thing which may or might the extent theretofore discharged, shall be reinstated in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) full force and effect. Each Note Guarantor agrees that its it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Note Guarantor further agrees that, as between the Note Guarantors and Holdings, 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 Note 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, such obligations (whether or not due and payable) shall forthwith become due and payable by the Note Guarantors for the purpose of this Note Guarantee. The Note Guarantors shall have the right to seek contribution from any non-paying Note Guarantor or Holdings so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantees. Each Note Guarantee herein shall will be a continuing guarantee and shall:
(1) remain in full force and effect until payment in full of all the guaranteed obligations;
(2) subject to Section 10.06(a), be binding upon each such Note Guarantor Obligations or such Guarantor is released from and its successors; and
(3) inure to the benefit of and be enforceable by the Trustee, the Holders and their successors, transferees and assigns. Each Note Guarantee shall remain in compliance with Section 5.01 full force and effect and continue to be effective should any petition be filed by or Section 8.01 hereof. Each against the Issuers, Holdings or any Note Guarantor further agrees that its for liquidation or reorganization, should the Issuers, Holdings or any Note Guarantee herein shall Guarantor become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuers’, Holdings’ or any other Note Guarantor’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time paymentpayment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes, the Holdings Guarantee or Note Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. In case any provision of principal ofany Note Guarantee shall be invalid, premiumillegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Note Guarantee issued by any Note Guarantor shall be a general senior unsecured obligation of such Note Guarantor and shall be pari passu in right of payment with all existing and future Senior Pari Passu Indebtedness of such Note Guarantor, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause . Each payment to be paid, made by a Note Guarantor in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes respect of its Note Guarantee hereinshall be made without set-off, notwithstanding any staycounterclaim, injunction reduction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event diminution of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether kind or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guaranteenature.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 4 contracts
Sources: Indenture (Realogy Group LLC), Indenture (Realogy Group LLC), Indenture (Realogy Group LLC)
Note Guarantees. (a) Subject to Section 10.07 hereof, the provisions Initial Guarantors, and any Additional Guarantors that become Guarantors after the date of this Indenture; provided that, at any time a Restricted Subsidiary may become a Guarantor at its option, by executing a supplemental indenture as set forth in Section 1010.02 hereof, each Guarantor hereby fullyjointly and severally, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee, the Collateral Agent and/or the International Security Agent and the Agents and their respective successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes held thereby and the Trustee Obligations of the due Company hereunder and punctual payment of thereunder, that: (a) the principal of (and premium, if any) , and interest (includingon the Notes will be promptly paid in full when due, in case of defaultwhether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and, to the extent permitted by applicable law, on overdue interest of and including any additional interest required to be paid according to the terms of the Notes)premium, if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees interest (to the extent permitted by law) that on the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from itNotes, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal all other payment Obligations of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest the Company to the Company of any of Holders, the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under Trustee, the Notes Agents, the Collateral Agent or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (International Security Agent hereunder or thereunder will be promptly paid in full and not a guarantee of collection) performed, all in accordance with the terms hereof and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, thereof; 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in 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, whether at Stated Maturitystated maturity, by acceleration acceleration, redemption or otherwise; (c) any rescission, waiver, amendment or modification . 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 Note Guarantees, and shall entitle the Holders to accelerate the obligations of the terms Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or provisions enforceability of the Notes or this Indenture, the Notes 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 agreement; circumstance (dother than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor further, to the release extent permitted by law, waives diligence, presentment, demand of any security held by any Holder for the Guarantor Obligations; (e) the failure payment, filing of any Holder to exercise any right or remedy against any other Guarantor; (f) any change claims with a court in the ownership event of insolvency or bankruptcy of the Company; (g) , any defaultright to require a proceeding first against the Company, failure or delayprotest, willful or otherwise, in the notice and all demands whatsoever and covenants that its Note Guarantee will not be discharged except by complete performance of the Guarantor Obligations contained in the Notes and this Indenture. If any Holder, the Trustee, an Agent, the Collateral Agent or (h) the International Security Agent is required by any court or otherwise to return to the Company, the Guarantors, the Trustee or any custodian or other act similar official acting under any applicable bankruptcy law in relation to either the Company or thing the Guarantors, any amount paid by the Company 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 to the Collateral Agent, the International Security Agent, such Agent, the Trustee or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) Holder, the Note Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that its Note Guarantee herein it shall remain not be entitled to, and waives, any right of subrogation in full force and effect relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofguaranteed hereby. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantorthe Guarantors, on the one hand, and the Holders, the Trustee, the Agents, the Collateral Agent and the International Security Agent on the other hand, (xa) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 hereof for the purposes of its Note Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby thereby, and (yb) in the event of any such declaration of acceleration of such Guarantor ObligationsObligations as provided in Article 6 hereof, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes purpose of this its Note Guarantee.
(l) Each . The Guarantors shall have the right to seek contribution from any non-paying Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by so long as the Trustee or exercise of such right does not impair the rights of the Holders in enforcing any rights under this Section 10.01the Note Guarantees.
Appears in 4 contracts
Sources: Indenture (CGG), Indenture (CGG Marine B.V.), Indenture (CGG Marine B.V.)
Note Guarantees. (a) Subject Pursuant to the provisions of this Section 10Note Guarantees, each Guarantor the Subsidiary Guarantors hereby fully, fully and unconditionally and irrevocably guarantees, as primary obligor and not merely as suretyguarantee, on a an unsecured, senior, joint and several basis, to each Holder of the Notes and to the Trustee and its successors and assigns on behalf of each Holder, the due and punctual full payment of the principal of (and of, premium, if any) , and interest on, and all other monetary obligations of the Issuers under this Indenture and the Notes (includingincluding obligations to the Trustee) with respect to each Note authenticated and delivered by the Trustee or its agent pursuant to and in accordance with this Indenture, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to accordance with the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunderIndenture. Each Guarantor agrees The Subsidiary Guarantors further agree that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, the Subsidiary Guarantors and that it will the Subsidiary Guarantors shall remain bound under this Section 10.01 Article 10 notwithstanding any extension or renewal of any Guarantor ObligationNote Guarantee. All payments under such Note Guarantee shall be made in U.S. dollars.
(fb) Each Guarantor waives presentation toThe Subsidiary Guarantors hereby agree that their obligations hereunder shall be as if they were principal debtor and not merely surety, unaffected by, and irrespective of, any validity, irregularity or unenforceability of any Note or this Indenture, any failure to enforce the provisions of any Note or this Indenture, any waiver, modification or indulgence granted to the Issuers with respect thereto by the Holders or the Trustee, or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor (except payment in full); provided, however, that, notwithstanding the foregoing, no such waiver, modification, indulgence or circumstance shall without the written consent of the Subsidiary Guarantors increase the principal amount of a Note or the interest rate thereon or change the currency of payment with respect to any Note, or alter the Stated Maturity thereof. The Subsidiary Guarantors hereby waive diligence, presentment, demand of payment from and protest to payment, filing of claims with a court in the Company event of any merger or bankruptcy of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives Issuers, any right to require that the Trustee pursue or exhaust its legal or equitable remedies against the Issuers prior to exercising its rights under the Note Guarantee (including, for the avoidance of doubt, any resort be had by right which the Subsidiary Guarantors may have to require the seizure and sale of the assets of the Issuers to satisfy the outstanding principal of, interest on or any Holder other amount payable under each Note prior to recourse against the Subsidiary Guarantors or their assets), protest or notice with respect to any security held for payment of Note or the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromiseIndebtedness evidenced thereby and all demands whatsoever, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of covenant that the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein Note Guarantee shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 respect to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until except by payment in full of all the Guarantor Obligations principal thereof and interest thereon or such Guarantor is released from its Note Guarantee as otherwise provided in compliance with Section 5.01 or Section 8.01 hereofthis Indenture, including Sections 10.3 and 10.5. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if If at any time payment, or any part thereof, payment of principal of, premium, if any, or interest interest, if any, on any of the Guarantor Obligations such Note is rescinded or must be otherwise be restored by any Holder or returned upon the insolvency, bankruptcy or reorganization of the Company Issuers or otherwise, the Subsidiary Guarantors’ obligations hereunder with respect to such payment shall be reinstated as of the date of such rescission, restoration or returns as though such payment had become due but had not been made at such times.
(jc) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor The Subsidiary Guarantors also agrees agree to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or the Holders any Holder in enforcing any rights under this Section 10.0110.1.
Appears in 3 contracts
Sources: Indenture (Sealed Air Corp/De), Indenture (Sealed Air Corp/De), Indenture (Sealed Air Corp/De)
Note Guarantees. (a1) Subject to the provisions of this Section 10Article Fifteen, each Guarantor hereby fullyjointly and severally, fully and unconditionally and irrevocably guarantees, guarantees as primary obligor and not merely as surety, on a joint and several senior unsecured basis, to each Holder of a Security authenticated and delivered by the Notes Trustee and to the Trustee and its successors, irrespective of (i) the validity and enforceability of this Indenture, the Securities or the obligations of the Company or any other Guarantors to the Holders or the Trustee under this Indenture and the Trustee Securities or (ii) the due and punctual payment absence of any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or Default of a Guarantor, that: (a) the principal of (and of, premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)interest, if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder Securities shall be duly and punctually paid in full when due, whether at maturity, by acceleration or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtednessotherwise, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee interest on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees overdue principal and (to the extent permitted by law) that the Guarantor Obligations may be extended interest or renewedadditional interest, in whole or in partif any, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest with respect to the Company of any of the Guarantor Obligations Securities and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the all other obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person Guarantor to the Holders or the Trustee under this IndentureIndenture and the Securities (including amounts due the Trustee under Section 607) and all other obligations under this Indenture or the Securities shall be promptly paid in full or performed, all in accordance with the Notes or any other agreement or otherwiseterms of this Indenture and the Securities; and (b) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any amount so guaranteed, or failing performance of any other obligation of the terms Company to the Holders, for whatever reason, each Guarantor shall be obligated to pay, or provisions to perform or cause the performance of, the same immediately. An Event of Default under this Indenture or the Securities shall constitute an event of default under this Note Guarantee, and shall entitle the Holders of the Securities or the Trustee to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the obligations of the Company. Notwithstanding the foregoing, in relation to any Security that is convertible or exchangeable for other securities of the Company, a Guarantor’s guaranteed obligations shall not extend, following the occurrence of a bankruptcy of the Company, to any amount in excess of principal of, premium, if any, interest and additional interest, if any, and interest on the overdue principal and (to the extent permitted by law) interest or additional interest, if any, with respect to such Securities.
(2) Each Guarantor, by execution of this Indenture, agrees that its obligations hereunder shall be unconditional, irrespective of the Notes validity, regularity or enforceability of this Indenture or the Securities, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions under this Indenture or the Securities, any release of any other Guarantor, the recovery of any judgment against the Company, any action to enforce the same, whether or not a Note Guarantee is affixed to any particular Security, or any other agreement; (d) circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor, by execution of this Indenture, waives the release benefit of any security held by any Holder diligence, presentment, demand for the Guarantor Obligations; (e) the failure payment, filing of any Holder to exercise any right or remedy against any other Guarantor; (f) any change claims with a court in the ownership event of insolvency or bankruptcy of the Company; (g) , any defaultright to require a proceeding first against the Company, failure or delayprotest, willful or otherwise, in the notice and all demands whatsoever and covenant that such Note Guarantee shall not be discharged except by complete performance of the Guarantor Obligations obligations contained in the Securities and this Indenture. The Note Guarantee is a guarantee of payment and not of collection. If any Holder or (h) the Trustee is required by any other act court or thing or omission or delay otherwise to do any other act or thing which may or might in any manner return to the Company or to any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Company or such Guarantor, any amount paid by the Company or such Guarantor to the Trustee or such Holder, a Note Guarantee, to the extent vary theretofore discharged, shall be reinstated in full force and effect. Each Guarantor further agrees that, as between it, on the risk one hand, and the Holders of Securities and the Trustee, on the other hand, (a) subject to this Article Fifteen, the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 502 hereof and, as provided in an Officers’ Certificate or supplemental indenture establishing any series of Securities in accordance with Section 301 hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (b) in the event of any Guarantor or would otherwise operate as a discharge acceleration of such Guarantor obligations as a matter provided in Section 502 hereof, and as provided in an Officers’ Certificate or supplemental indenture establishing any series of law Securities in accordance with Section 301 hereof, such obligations (whether or equitynot due and payable) shall forthwith become due and payable by the Guarantors for the purpose of such Note Guarantee.
(i3) Each Guarantor agrees that its Subject to Section 1506 hereof, the Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its obligations of the Guarantor, and the Note 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, premium, if any, of or interest on any of the obligations of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j4) In furtherance The Note Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the foregoing Company’s assets, and not in limitation of shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure time payment and performance of the Company Securities are pursuant to pay applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any of obligee on the Guarantor Obligations when and as the same shall become dueSecurities, whether at maturity, by acceleration, by redemption as a “voidable preference,” “fraudulent transfer” or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by all as though such payment or performance had not been made. In the Trustee, forthwith payevent that any payment, or cause to be paidany part thereof, in cashis rescinded, reduced, restored or returned, the Securities shall, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the fullest extent not prohibited permitted by law) (including interest accruing after the filing of any petition in bankruptcy , be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding)returned.
(k5) No shareholder, officer, director, employee or incorporator, past, present or future, or any Guarantor, as such, shall have any personal liability under this Note Guarantee by reason of his, her or its status as such shareholder, officer, director, employee or incorporator.
(6) Each Guarantor further hereby agrees thatthat by virtue of its execution and delivery of this Indenture, as between such Guarantor, it shall be deemed to have signed on the one hand, and the Holders, on the other hand, (x) the maturity each security issued hereunder a notation of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l7) Each Guarantor also hereby agrees to pay pay, in addition to the amount stated above, any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this Section 10.011501.
Appears in 3 contracts
Sources: Senior Indenture (Alpha Natural Resources, Inc.), Senior Indenture (Massey Energy Co), Indenture (Energy Transport CO)
Note Guarantees. (a) Subject Each of the Note Guarantors, jointly and severally, hereby unconditionally Guarantees (and subject in each case to the provisions Agreed Guarantee Principles set forth in any notation of this Note Guarantee, supplemental indenture, or as contemplated by Section 10, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, 4.24(d)) 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 or the Trustee obligations of the Company hereunder or thereunder that: (i) the due and punctual payment of the principal of (and of, premium, if any) , and interest on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, repurchase, redemption or otherwise, (including, in case ii) the due and punctual payment of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)interest, if any, on the overdue principal of and interest on the Notes, when to the extent lawful, and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option punctual performance of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to promptly paid in full or performed, all in accordance with the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from itterms hereof and thereof, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (biii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration pursuant to Section 6.02 or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Note Guarantors shall be jointly and severally obligated to pay the same immediately. Each Note Guarantor shall agree that this is a Guarantee of payment and not a Guarantee of collection. If acceleration of the time for payment of any Notes Obligation by the Company is stayed by reason of the insolvency or receivership of the Company or otherwise, all Notes Obligations otherwise subject to acceleration under the terms of any Notes Document shall nonetheless be payable by the Note Guarantors hereunder forthwith on demand by the Trustee.
(b) Each of the Note Guarantors hereby agrees that its obligations with regard to its Guarantee shall be joint and several, unconditional, irrespective of the validity or provisions enforceability of the Notes or the obligations of the Company under this Indenture, the absence of any action to enforce the same, the recovery of any judgment against the Company or any other obligor with respect to this Indenture, the Notes or the obligations of the Company under this Indenture or the Notes, any action to enforce the same or any other agreement; circumstances (dother than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Note Guarantor. Each Note Guarantor further, to the release extent permitted by law, hereby waives and relinquishes all claims, rights and remedies accorded by applicable law to guarantors and agrees not to assert or take advantage of any such claims, rights or remedies, including but not limited to: (i) any right to require any of the Trustee, the Holders or the Company (each a “Benefited Party”), as a condition of payment or performance by such Note Guarantor, to (A) proceed against the Company, any other guarantor (including any other Note Guarantor) of the obligations under the Note Guarantees or any other person, (B) proceed against or exhaust any security held by from the Company, any Holder for such other guarantor or any other person, (C) proceed against or have resort to any balance of any deposit account or credit on the Guarantor Obligationsbooks of any Benefited Party in favor of the Company or any other person, or (D) pursue any other remedy in the power of any Benefited Party whatsoever; (eii) any defense arising by reason of the failure incapacity, lack of authority or any Holder to exercise disability or other defense of the Company including any right defense based on or remedy against arising out of the lack of validity or the unenforceability of the obligations under the Note Guarantees or any agreement or instrument relating thereto or by reason of the cessation of the liability of the Company from any cause other Guarantorthan payment in full of the obligations under the Note Guarantees; (fiii) any change defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (iv) any defense based upon any Benefited Party’s errors or omissions in the ownership administration of the Companyobligations under the Note Guarantees, except behavior which amounts to bad faith; (gv)
(A) any defaultprinciples or provisions of law, failure or delay, willful statutory or otherwise, which are or might be in conflict with the performance terms of the Guarantor Obligations Note Guarantees and any legal 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 equitable discharge of such Note Guarantor’s obligations hereunder and under its Note Guarantee, (B) the benefit of any statute of limitations affecting such Note Guarantor’s liability hereunder and under its Note Guarantee or the enforcement hereof and thereof, (C) any rights to set-offs, recoupments and counterclaims and (D) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (vi) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Note Guarantees, notices of default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification of the obligations under the Note Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (vii) to the extent permitted under applicable law, the benefits of any “One Action” rule; and (viii) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the Note Guarantees. Except as set forth in Section 13.05, each Note Guarantor as a matter of law or equity.
(i) Each Guarantor agrees covenants that its Note Guarantee herein shall remain not be discharged except by complete performance of the obligations contained in its Note Guarantee and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Note Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Note Guarantors, any amount paid to either the Trustee or such Holder, any Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect effect.
(d) Each Note Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Note Guarantor shall further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees agree that, as between such Guarantorthe Note Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (xi) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Section 6.02 for the purposes of its Note Guarantee hereinany Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby and (yii) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Section 6.02, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor the Note Guarantors for the purposes purpose of this any such Guarantee. The Note Guarantors shall have the right to seek contribution from any non-paying Note Guarantor so long as the exercise of such right does not impair the rights of the Holders under the applicable Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 3 contracts
Sources: Indenture (Nextnav Inc.), Indenture (Nextnav Inc.), Indenture (Nextnav Inc.)
Note Guarantees. (a) Subject to the provisions of this Section 10Article Ten, each Guarantor hereby fullyhereby, jointly and severally, fully and unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder of a Note and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes and or the Trustee the due and punctual payment obligations of the Company hereunder or thereunder, that: (a) the principal of (of, and premium, if any) , and interest (includingand liquidated damages, if any, on, the Notes will be promptly paid in case of defaultfull when due, whether at maturity, by acceleration, redemption or otherwise, and interest on principal andthe overdue premium, to the extent permitted by applicable lawif any, on overdue and interest and including any additional interest required to be paid according to the terms of the Notes)liquidated damages, if any, on the Notes, when and as the same shall become due and payableif any, whether at Stated Maturityif lawful, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations thereunder will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain promptly paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, thereof; and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in the case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, such Guarantor shall be obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. Subject to Section 10.02, each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the terms validity, regularity or provisions enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other agreement; (d) the release circumstance that might otherwise constitute a legal or equitable discharge or defense of any security held by any Holder for the a guarantor. Each Guarantor Obligations; (e) the failure hereby waives diligence, presentment, demand of any Holder to exercise any right or remedy against any other Guarantor; (f) any change payment, filing of claims with a court in the ownership event of insolvency or bankruptcy of the Company; (g) , any defaultright to require a proceeding first against the Company, failure or delayprotest, willful or otherwise, in the notice and all demands whatsoever and covenant that this Note Guarantee shall not be discharged except by complete performance of the Guarantor Obligations obligations contained in the Notes and this Indenture. If any Holder or (h) the Trustee is required by any other act court or thing or omission or delay otherwise to do any other act or thing which may or might in any manner or return to any extent vary the risk of any Company, each Guarantor or would otherwise operate as a discharge of any custodian, trustee, liquidator or other similar official acting in relation to either the Company or any Guarantor, any amount paid by either to the Trustee or such Guarantor as a matter of law or equity.
(i) Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that its Note Guarantee herein it shall remain not be entitled to any right of subrogation in full force and effect relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, Holders and the Holders, on the other handTrustee, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article Six for the purposes of its this Note Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article Six, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes purpose of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 3 contracts
Sources: Indenture (Time Warner Telecom Inc), Indenture (Time Warner Telecom Inc), Indenture (Time Warner Telecom Inc)
Note Guarantees. (a) Subject From and after the Issue Date and prior to the provisions of this Section 10Existing Notes Repayment Date, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, to each Holder of the Notes and the Trustee the due and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder will not cause or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
permit (bi) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason Subsidiaries (other than payment of the a Guarantor Obligations in fullor a Majority Owned JV), including directly or indirectly, to guarantee 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company capital markets Indebtedness or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case unsecured credit facility of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling (ii) any Majority Owned JV, directly or post-petition interest is allowed indirectly, to guarantee any capital markets Indebtedness or any unsecured credit facility of the Company, in such proceeding).
(k) Each Guarantor further agrees thateach case, as between such Guarantor, on with an aggregate principal amount in excess of the one hand, and the Holders, on the other hand, greater of (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby $150.0 million and (y) 2.0% of Total Assets, unless such Subsidiary:
(a) within 20 Business Days of the date on which it guarantees such Indebtedness of the Company or any Guarantor executes and delivers to the Trustee a supplemental indenture pursuant to which such Subsidiary shall guarantee (each, a “Note Guarantee”) all of the Company’s obligations under the Notes and this Indenture and other terms contained in the applicable supplemental indenture and subject to the conditions contained in such supplemental indenture; and
(b) delivers to the Trustee an Officers’ Certificate that all conditions precedent to the execution of such indenture have been complied with. Thereafter, such Subsidiary shall be a Guarantor for all purposes of this Indenture until such Note Guarantee is released in accordance with the provisions of this Indenture. In the event of a sale or other transfer or disposition of all of the Capital Stock in any Guarantor to any Person that is not an Affiliate of the Company in compliance with the terms of this Indenture, or in the event all or substantially all the assets or Capital Stock of a Guarantor are sold or otherwise transferred, by way of merger, consolidation or otherwise, to a Person that is not an Affiliate of the Company in compliance with the terms of this Indenture, then, without any such declaration further action on the part of acceleration of such Guarantor Obligationsthe Trustee or any Holder, such Guarantor Obligations (whether or not due and payablethe Person concurrently acquiring such assets of such Guarantor) shall forthwith become due be deemed automatically and payable unconditionally cancelled, released and discharged of any obligations under its Note Guarantee, as evidenced by a supplemental indenture, written instrument or confirmation executed by the Trustee, upon request; provided, however that if evidence of such Guarantor for cancellation, discharge or release is requested to be executed by the purposes Trustee, an Officers’ Certificate and an Opinion of Counsel complying with Section 1301 of this Indenture. In addition, upon the release or discharge of any guarantee which resulted in the creation of a Note Guarantee (except a discharge or release by or as a result of payment under such guarantee), the Guarantor of such Note Guarantee shall be deemed automatically and unconditionally cancelled, released and discharged of any obligations under its Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred as evidenced by a supplemental indenture, written instrument or confirmation executed by the Trustee Trustee, upon request. The Company may cause any other Subsidiary of the Company to issue a Note Guarantee and become a Guarantor. Each Note Guarantee by a Subsidiary will be limited to an amount not to exceed the maximum amount that can be guaranteed by that Subsidiary without rendering the Note Guarantee, as it relates to such Subsidiary, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the Holders in enforcing any rights under this Section 10.01of creditors generally.
Appears in 3 contracts
Sources: Indenture (Aircastle LTD), Indenture (Aircastle LTD), Indenture (Aircastle LTD)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Guarantor hereby jointly and severally, fully, unconditionally and irrevocably guaranteesguarantees the Notes and obligations of the Issuer hereunder and thereunder, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder of the Notes a Note authenticated and delivered by the Trustee and to the due and punctual payment Trustee on behalf of such Holder, that: (i) the principal of (and premium, if any) any and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes shall be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender call for repayment at redemption or otherwise (including, without limitation, the option amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), together with interest on the overdue principal, if any, and interest on any Holder or otherwiseoverdue interest, according to the terms thereof and of this Indenture extent lawful, and all other obligations of the Company with respect Issuer to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto thereunder shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
thereof; and (d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification of any . Each of the terms Note Guarantees shall be a guarantee of payment and not of collection.
(b) Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or provisions enforceability of the Notes or this Indenture, the Notes 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 Issuer, any action to enforce the same or any other agreement; circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(dc) Each Guarantor hereby waives the release benefits of any security held by any Holder diligence, presentment, demand for payment, filing of claims with a court in the Guarantor Obligations; (e) event of insolvency or bankruptcy of the failure of any Holder to exercise Issuer, any right to require a proceeding first against the Issuer or remedy any other Person, protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note and such Note Guarantee or as provided for in this Indenture. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal or premium, if any or interest on such Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce such Guarantor’s Note Guarantee without first proceeding against the Issuer or 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) . Each Guarantor agrees that its if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or any Guarantor, any amount paid by any of them to the Trustee or such Holder, the Note Guarantee herein of each of the Guarantors, to the extent theretofore discharged, shall remain be reinstated in full force and effect until payment effect. This paragraph (d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in full of all the Guarantor Obligations or reliance upon such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note Guarantee herein shall continue amount required to be effective or be reinstated, as returned. This paragraph (d) shall survive the case may be, if at any time payment, or any part thereof, termination of principal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwisethis Indenture.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(ke) Each Guarantor further agrees that, as between such each Guarantor, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI for the purposes of its the Note Guarantee hereinof such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article VI, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Guarantor for the purposes purpose of this the Note GuaranteeGuarantee of such Guarantor.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 3 contracts
Sources: Indenture (BlueLinx Holdings Inc.), Indenture (Ryerson Holding Corp), Indenture (Ryerson Holding Corp)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Guarantor hereby jointly and severally, fully, unconditionally and irrevocably guaranteesguarantees the Notes and obligations of the Issuer hereunder and thereunder, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder of the Notes a Note authenticated and delivered by the Trustee and to the due and punctual payment Trustee on behalf of such Holder, that: (i) the principal of (and premium, if any) , and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes shall be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender call for repayment at redemption or otherwise (including, without limitation, the option amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), together with interest on the overdue principal, if any, and interest on any Holder or otherwiseoverdue interest, according to the terms thereof and of this Indenture extent lawful, and all other obligations of the Company with respect Issuer to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto thereunder shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
thereof; and (d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification of any . Each of the terms Note Guarantees shall be a guarantee of payment and not of collection.
(b) Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or provisions enforceability of the Notes or this Indenture, the Notes absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof (other than any waiver or consent expressly releasing such Guarantor’s obligations hereunder), the recovery of any judgment against the Company, any action to enforce the same or any other agreement; circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor (dother than payment of the Notes).
(c) Each Guarantor hereby waives the release benefits of any security held by any Holder diligence, presentment, demand for the Guarantor Obligations; (e) the failure payment, filing of any Holder to exercise any right or remedy against any other Guarantor; (f) any change claims with a court in the ownership event of insolvency or bankruptcy of the Company; (g) , any defaultright to require a proceeding first against the Company or any other Person, failure protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note and such Note Guarantee or delay, willful or otherwiseas provided for in this Indenture. Each of the Guarantors hereby agrees that, in the performance event of the Guarantor Obligations or (h) any other act or thing or omission or delay to do any other act or thing which may or might a default in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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 premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become duesuch Note, whether at maturityits Stated Maturity, by acceleration, by redemption call for redemption, purchase or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand legal proceedings may be instituted by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Holders an amount equal Guarantors to the sum of (i) the unpaid amount of enforce such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like Guarantor’s Note Guarantee without first proceeding relating to against the Company or any other Guarantor. Each Guarantor whether agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or not a claim any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for postfiling the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or post-petition interest is allowed in such proceeding)any of the Holders.
(kd) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or any Guarantor, any amount paid by any of them in respect of the Notes and/or the Note Guarantee to the Trustee or such Holder, the Note Guarantee of each of the Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect. This paragraph (d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in reliance upon such amount required to be returned. This paragraph (d) shall survive the termination of this Indenture.
(e) Each Guarantor further agrees that, as between such each Guarantor, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Section 6.2 hereof for the purposes of its the Note Guarantee hereinof such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Section 6.2 hereof, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Guarantor for the purposes purpose of this the Note GuaranteeGuarantee of such Guarantor.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 3 contracts
Sources: Indenture (Oshkosh Corp), Indenture (Oshkosh Corp), Indenture (Oshkosh Corp)
Note Guarantees. (a) Subject Pursuant to the provisions of this Section 10Note Guarantees, each Guarantor the Subsidiary Guarantors hereby fully, fully and unconditionally and irrevocably guarantees, as primary obligor and not merely as suretyguarantee, on a an unsecured, senior, joint and several basis, to each Holder of the Notes and to the Trustee and its successors and assigns on behalf of each Holder, the due and punctual full payment of the principal of (and of, premium, if any) , and interest (includingon, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other monetary obligations of the Company under this Indenture and the Notes (including obligations to the Trustee) with respect to the Notes to any Holder or each Note authenticated and delivered by the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally its agent pursuant to and in right of payment accordance with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligationsthis Indenture, in which case accordance with the obligations terms of the this Indenture. The Subsidiary Guarantors under further agree that the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, the Subsidiary Guarantors and that it will the Subsidiary Guarantors shall remain bound under this Section 10.01 Article 10 notwithstanding any extension or renewal of any Guarantor ObligationNote Guarantee. All payments under such Note Guarantee shall be made in U.S. dollars.
(fb) Each Guarantor waives presentation toThe Subsidiary Guarantors hereby agree that their obligations hereunder shall be as if they were principal debtor and not merely surety, unaffected by, and irrespective of, any validity, irregularity or unenforceability of any Note or this Indenture, any failure to enforce the provisions of any Note or this Indenture, any waiver, modification or indulgence granted to the Company with respect thereto by the Holders or the Trustee, or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor (except payment in full); provided, however, that, notwithstanding the foregoing, no such waiver, modification, indulgence or circumstance shall without the written consent of the Subsidiary Guarantors increase the principal amount of a Note or the interest rate thereon or change the currency of payment with respect to any Note, or alter the Stated Maturity thereof. The Subsidiary Guarantors hereby waive diligence, presentment, demand of payment from and protest to payment, filing of claims with a court in the Company event of any merger or bankruptcy of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives Company, any right to require that the Trustee pursue or exhaust its legal or equitable remedies against the Company prior to exercising its rights under the Note Guarantee (including, for the avoidance of doubt, any resort be had by right which the Subsidiary Guarantors may have to require the seizure and sale of the assets of the Company to satisfy the outstanding principal of, interest on or any Holder other amount payable under each Note prior to recourse against the Subsidiary Guarantors or their assets), protest or notice with respect to any security held for payment of Note or the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromiseIndebtedness evidenced thereby and all demands whatsoever, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of covenant that the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein Note Guarantee shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 respect to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until except by payment in full of all the Guarantor Obligations principal thereof and interest thereon or such Guarantor is released from its Note Guarantee as otherwise provided in compliance with Section 5.01 or Section 8.01 hereofthis Indenture, including Sections 10.3 and 10.5. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if If at any time payment, or any part thereof, payment of principal of, premium, if any, or interest interest, if any, on any of the Guarantor Obligations such Note is rescinded or must be otherwise be restored by any Holder or returned upon the insolvency, bankruptcy or reorganization of the Company or otherwise, the Subsidiary Guarantors’ obligations hereunder with respect to such payment shall be reinstated as of the date of such rescission, restoration or returns as though such payment had become due but had not been made at such times.
(jc) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor The Subsidiary Guarantors also agrees agree to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or the Holders any Holder in enforcing any rights under this Section 10.0110.1.
Appears in 3 contracts
Sources: Indenture (Sealed Air Corp/De), Indenture (Sealed Air Corp/De), Indenture (Sealed Air Corp/De)
Note Guarantees. (a) Subject to the provisions of this Section 10Article Twelve, each Guarantor hereby fullyjointly and severally, fully and unconditionally and irrevocably guarantees, as primary obligor and not merely as suretyGuarantees, on a joint and several senior basis, the Notes and Obligations of the Issuer hereunder and thereunder, and Guarantees to each Holder of a Note authenticated and delivered by the Notes Trustee, and to the Trustee the due for itself and punctual payment on behalf of such Holder, that: (1) the principal of (of, and interest and premium, if any) and interest (including, in case of defaulton, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes will be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemptionby acceleration or otherwise (including the amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Law), upon accelerationtogether with interest on the overdue principal, upon tender for repayment at the option of if any, and interest on any Holder or otherwiseoverdue interest, according to the terms thereof and of this Indenture extent lawful, and all other obligations of the Company with respect Issuer to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations thereunder will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
thereof; and (d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b2) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; , subject, however, in the case of clauses (c1) any rescissionand (2) above, waiverto the limitation set forth in Section 1204 hereof. Each Guarantor hereby agrees (to the extent permitted by applicable law) that its obligations hereunder shall be unconditional, amendment or modification of any irrespective of the terms validity, regularity or provisions enforceability of the Notes or this Indenture, the Notes absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the Issuer, any action to enforce the same or any other agreement; circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives (dto the extent permitted by law) the release benefits of any security held by any Holder diligence, presentment, demand for payment, filing of claims with a court in the Guarantor Obligations; (e) event of insolvency or bankruptcy of the failure of any Holder to exercise Issuer, any right to require a proceeding first against the Issuer or remedy any other Person, protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note, this Indenture and such Note Guarantee. Each Guarantor acknowledges that the Note Guarantee is a Guarantee of payment, performance and compliance when due and not of collection. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal, interest or premium, if any, with respect to such Note, whether at its Stated Maturity, by acceleration, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce such Guarantor’s Note Guarantee without first proceeding against the Issuer or 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) . Each Guarantor agrees that its if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the Maturity of the Notes, to collect interest on the Notes or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holder the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders. If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or any Guarantor, any amount paid by any of them to the Trustee or such Holder, the Note Guarantee herein of each of the Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor further agrees that, as between each Guarantor, on the one hand, and the Holders and the Trustee on the other hand, (1) subject to this Article Twelve, the Maturity of the obligations Guaranteed hereby may be accelerated as provided in Article Five hereof for the purposes of the Note Guarantee of such Guarantor notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Guaranteed hereby, and (2) in the event of any acceleration of such obligation as provided in Article Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purpose of the Note Guarantee of such Guarantor. Each Note Guarantee shall remain in full force and effect until payment in full and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note Guarantee herein shall Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time paymentpayment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes, whether as a “voidable preference”, “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, of principal ofis rescinded, premiumreduced, if anyrestored or returned, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cashNotes shall, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the fullest extent not prohibited permitted by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, be reinstated and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable deemed reduced only by such Guarantor for the purposes of this Note Guaranteeamount paid and not so rescinded, reduced, restored or returned.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Note Guarantees. Section 11.01 Guarantee.
(a) Subject to the provisions of this Section 10Article 11, each Guarantor hereby fullyof the Guarantors (other than the Quebec Guarantor) hereby, jointly and severally, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, 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 or the Trustee the due and punctual payment obligations of the Company hereunder or thereunder, that:
(1) the principal of (of, premium and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)Additional Interest, if any, and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, when and as the same shall become due and payableif any, whether at Stated Maturityif lawful, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that thereunder will be promptly paid in full or performed, all in accordance with the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, terms hereof and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.thereof; and
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when 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. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) Subject to this Article 11, the Quebec Guarantor hereby 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 terms or provisions validity and enforceability of this Indenture, the Notes or the Subsidiary Guarantee of the New Brunswick Guarantor set forth in clause (a) of this Section 11.01 or the obligations of the Company or the New Brunswick Guarantor hereunder or thereunder, the prompt payment and performance when due of all obligations of the New Brunswick Guarantor under such Subsidiary Guarantee. Failing payment or performance when due of any obligation so guaranteed, the Quebec Guarantor will be obligated to pay or perform the same immediately. The Quebec Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(c) The Guarantors hereby agree that their obligations hereunder are 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 of the Notes 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 agreement; 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 covenant that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.
(d) If any Holder or the release of any security held Trustee is required by any Holder for the Guarantor Obligations; (e) the failure of any Holder court or otherwise to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of return to the Company; (g) , the Guarantors or any defaultcustodian, failure trustee, liquidator or delayother similar official acting in relation to either the Company or the Guarantors, willful any amount paid by either to the Trustee or otherwisesuch Holder, this Subsidiary Guarantee, to the extent theretofore discharged, will be reinstated in the performance of the Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equityfull force and effect.
(ie) Each Guarantor agrees that its Note Guarantee herein shall remain it will not be entitled to any right of subrogation in full force and effect relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantorthe Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x1) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 hereof for the purposes of its Note Guarantee hereinthis Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y2) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article 6 hereof, such Guarantor Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by such Guarantor the Guarantors for the purposes purpose of this Note Subsidiary Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Indenture (Icon Health & Fitness Inc), Indenture (Icon Health & Fitness Inc)
Note Guarantees. (a) Subject to the provisions of this Section 10The Guarantor, each Guarantor hereby fully, unconditionally and irrevocably guaranteesguarantees the Notes, as primary obligor Hedge Agreements and not merely as suretythe Obligations hereunder and thereunder, on a joint and several basis, guarantees to each Holder of a Note authenticated and delivered by the Notes Indenture Trustee and to the Indenture Trustee the due and punctual payment on behalf of such Holder, that:
(i) the principal of (and premium, if any) any and interest on the Notes shall be paid in full when due, whether at the Legal Final Maturity Date, by acceleration or otherwise (including, in case without limitation, the amount that would become due but for the operation of defaultthe automatic stay under Section 362(a) of the Bankruptcy Code), together with interest on principal andthe overdue principal, if any, and interest on any overdue interest, to the extent permitted by applicable lawlawful, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect Issuer to the Notes to any Holder Holders or the Indenture Trustee hereunder or thereunder. Each Guarantor agrees that thereunder shall be paid in full or performed, all in accordance with the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, terms hereof and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.thereof; and
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligationsObligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitythe Legal Final Maturity Date, by acceleration or otherwise. The obligations of the Guarantor are direct, independent and primary obligations of the Guarantor and are irrevocable, absolute, unconditional, and continuing obligations and are not conditioned in any way upon the institution of suit or the taking of any other action, the pursuit of any remedies or any attempt to enforce performance of or compliance with the Obligations by the Issuer and the Guarantor, and their respective successors, transferees or assigns, and shall constitute a guaranty of payment and performance and not of collection, binding upon the Guarantor and its successors and assigns and irrevocable without regard to the validity, legality or enforceability of this Indenture or any other Basic Document, or the lack of power or authority of the Issuer or the Guarantor to enter into this Indenture or any other Basic Document, or any substitution, release or exchange of any other guaranty or any other security for any of the Obligations or any other circumstance whatsoever (other than payment) that might otherwise constitute a legal or equitable discharge of a surety or guarantor, and shall not be subject to any right of set off, recoupment or counterclaim and are in no way conditioned or contingent upon any attempt to collect from the Issuer, the Guarantor or any other entity or to perfect or enforce any security or upon any other condition or contingency or upon any other action, occurrence, or circumstance whatsoever. Without limiting the generality of the foregoing, the Guarantor shall not have any right to terminate this guaranty, or to be released, relieved or discharged from its obligations hereunder except as provided in Section 11.1 hereof, and such obligations shall not be affected, diminished, modified or impaired for any reason whatsoever, including, without limitation, (i) the change, modification or amendment of any obligation, duty, guarantee, warranty, responsibility, covenant or agreement set forth in this Indenture, the granting of any extension of time for payment to the Issuer or any other surety, or any extension or renewal of the Issuer’s obligations under this Indenture, (ii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of any of the Issuer’s or the Guarantor’s assets, the receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization of or similar proceedings affecting the Issuer or the Guarantor or any of the assets of the Issuer or the Guarantor, (iii) any furnishing or acceptance of additional security or any exchange, surrender, substitution or release of any security, (iv) any waiver, consent or other action or inaction or any exercise or non-exercise of any right, remedy or power with respect to the Obligations or this Indenture, (v) any merger or consolidation of the Issuer or the Guarantor into or with any other person or entity, the Issuer’s loss of its separate corporate identity or its ceasing to be an affiliate of the Guarantor, or (vi) the failure to give notice to the Guarantor of the occurrence of a default under the terms and provisions of this Indenture.
(b) The Guarantor irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any right it may have now, or in the future, under law or in equity, to: (i) the notice of any waiver or extension granted to the Issuer; (ii) all notices which may be required by applicable statute, rule of law or otherwise to preserve any of the rights of the Noteholders against the Issuer, the Guarantor or any other person; (iii) require either that an action be brought against the Issuer or any other person or entity as a condition to proceeding against the Guarantor, or to require that action be first taken against any security given by the Issuer or the Guarantor; (iv) notice of (a) any Noteholder’s acceptance and reliance on this guaranty, (b) default or demand in the case of default, provided such notice or demand has been given to or made upon the Issuer or the Guarantor, and (c) any rescissionextensions or consents granted to the Issuer, the Guarantor or any other surety; (v) promptness, diligence, presentment, demand of payment or enforcement and any other notice with respect to any of the Obligations and this guaranty; (vi) require any election of remedies; (vii) require the marshalling of assets or the resort to any other security; (viii) except as otherwise expressly provided herein, claim any other defense, contingency, circumstance or matter which might constitute a legal or equitable discharge of a surety or guarantor; (ix) any defense based on or arising out of the voluntary or involuntary bankruptcy, insolvency, liquidation, dissolution, receivership, or other similar proceeding affecting the Issuer; or (x) any defense related to the addition, substitution or partial or entire release of any guarantor, maker or other party (including the Issuer and the Guarantor) primarily or secondarily liable or responsible for the performance and observance of any of the terms set forth in this Indenture and the other Basic Documents or by any extension, 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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations or (h) any other act or thing or omission or delay to do any other act or thing action whatsoever which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as release a discharge of such Guarantor as a matter of law or equityguarantor (other than performance).
(ic) Each Guarantor agrees that its If any Noteholder or the Indenture Trustee is required by any court or otherwise to return to the Issuer or the Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or the Guarantor, any amount paid by any of them to the Indenture Trustee or such Noteholder, the Note Guarantee herein of the Guarantor, to the extent theretofore discharged, shall remain be reinstated in full force and effect until payment effect. This paragraph (c) shall remain effective notwithstanding any contrary action which may be taken by the Indenture Trustee or any Noteholder in full of all the Guarantor Obligations or reliance upon such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note Guarantee herein shall continue amount required to be effective or be reinstated, as returned. This paragraph (c) shall survive the case may be, if at any time payment, or any part thereof, termination of principal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwisethis Indenture.
(jd) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each The Guarantor further agrees that, as between such the Guarantor, on the one hand, and the HoldersHolders and the Indenture Trustee, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture Article V hereof for the purposes of its the Note Guarantee hereinof the Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor ObligationsObligations as provided in Article V hereof, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes purpose of this the Note GuaranteeGuarantee of the Guarantor.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Indenture (Diversified Energy Co PLC), Indenture (Diversified Energy Co PLC)
Note Guarantees. (a) Subject to the provisions of this Section Article 10, each Guarantor hereby fully, unconditionally and irrevocably guaranteesof the Guarantors hereby, as primary obligor and not merely as a surety, jointly and severally, unconditionally and on a joint and several basis, senior basis guarantees to each Holder authenticated and delivered by the Trustee (or the Authenticating Agent), to the Trustee and its successors and assigns and to the Notes Security Agent (on behalf of and for the benefit of the Holders, for the purpose of this Article 10, and not in its individual capacity, but solely in its role as representative of the Holders in holding and enforcing the Notes Collateral and the Trustee the due and punctual payment Notes Security Documents), irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that:
(1) the principal of (of, and premium, if any) , and interest (includingon, the Notes will be promptly paid in case of defaultfull when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal andof and interest, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)premium, if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that and all other obligations of the Guarantor Obligations may Issuer to the Holders or the Trustee or the Notes Security Agent hereunder or thereunder will be extended promptly paid in full or renewedperformed, all in whole or in part, without notice or further assent from it, accordance with the terms hereof and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.thereof; and
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration or otherwise; . Failing payment when 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. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(cb) Each Guarantor hereby agrees that its obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any rescissionaction or any delay or omission to assert any claim or to demand or enforce any remedy hereunder or thereunder, any waiver, amendment surrender, release or modification consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor (other than payment in full of all the Obligations of the terms Issuer hereunder and under the Notes). Each Guarantor hereby waives, to the fullest extent permitted by law, diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture or by release in accordance with the provisions of this Indenture.
(c) If any Holder, the Trustee, or the Notes Security Agent is required by any court or otherwise to return to or for the benefit of the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid by either the Issuer or the Guarantors to the Trustee, the Notes Security Agent, or any other agreement; such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) Until terminated in accordance with Section 10.06 hereof, each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the release Holders in respect of any security held by any Holder obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders, the Notes Security Agent, and the Trustee, on the other hand,
(1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and
(2) 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) will forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor Obligations; so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.
(e) Each Guarantor also agrees to pay any and all costs and expenses (including attorneys’ fees and expenses) incurred by the failure of Trustee or the Notes Security Agent in enforcing any Holder to exercise any right or remedy against any other Guarantor; rights under this Section 10.01.
(f) any change in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note Guarantee herein shall Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time paymentpayment of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment had not been made. In the event that any payment or any part thereof, of principal ofis rescinded, premiumreduced, if anyrestored or returned, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cashNotes shall, to the Holders fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the Trustee on behalf validity, legality, and enforceability of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent remaining provisions shall not prohibited by law) (including interest accruing after the filing of in any petition in bankruptcy way be affected or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding)impaired thereby.
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Indenture (Altice USA, Inc.), Indenture (Altice USA, Inc.)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Guarantor hereby fullyjointly and severally, unconditionally and irrevocably guaranteesguarantees the Notes and obligations of the Issuer hereunder and thereunder, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder of the Notes a Note authenticated and delivered by the Trustee and to the due and punctual payment Trustee on behalf of such Holder, that: (i) the principal of (and premium, if any) any and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes shall be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender call for repayment at redemption or otherwise (including the option amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), together with interest on the overdue principal, if any, and interest on any Holder or otherwiseoverdue interest, according to the terms thereof and of this Indenture extent lawful, and all other obligations of the Company with respect Issuer to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto thereunder shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
thereof; and (d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification of any . Each of the terms Note Guarantees shall be a guarantee of payment and not of collection.
(b) Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or provisions enforceability of the Notes or this Indenture, the Notes 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 Issuer, any action to enforce the same or any other agreement; circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(dc) Each Guarantor hereby waives the release benefits of any security held by any Holder diligence, presentment, demand for payment, filing of claims with a court in the Guarantor Obligations; (e) event of insolvency or bankruptcy of the failure of any Holder to exercise Issuer, any right to require a proceeding first against the Issuer or remedy any other Person, protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note and such Note Guarantee or as provided for in this Indenture. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal or premium, if any or interest on such Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce such Guarantor’s Note Guarantee without first proceeding against the Issuer or 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) . Each Guarantor agrees that its if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or any Guarantor, any amount paid by any of them to the Trustee or such Holder, the Note Guarantee herein of each of the Guarantors, to the extent theretofore discharged, shall remain be reinstated in full force and effect until payment effect. This Section 11.1(d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in full of all the Guarantor Obligations or reliance upon such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note Guarantee herein shall continue amount required to be effective or be reinstated, as returned. This Section 11.1(d) shall survive the case may be, if at any time payment, or any part thereof, termination of principal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwisethis Indenture.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(ke) Each Guarantor further agrees that, as between such each Guarantor, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI hereof for the purposes of its the Note Guarantee hereinof such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article VI hereof, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Guarantor for the purposes purpose of this the Note GuaranteeGuarantee of such Guarantor.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Indenture (Jack Cooper Holdings Corp.), Indenture (Jack Cooper Logistics, LLC)
Note Guarantees. (a) Subject to the provisions of this Section 10limitations set forth in Schedule 10.1, each Restricted Subsidiary that is required to become a Note Guarantor pursuant to Section 4.12 hereof hereby fullyirrevocably Guarantees (collectively, unconditionally and irrevocably guaranteesthe “Note Guarantees”), as primary obligor and not merely as surety, on a joint and several basis, senior basis to each Holder Holder, the Collateral Agents (on behalf of and for the benefit of Holders, for the purpose of this Article 10, and not in their individual capacities, but solely in their roles as representatives of the Notes Holders in holding and enforcing the Collateral and the Security Documents), and to the Trustee and its successors and assigns (i) the due full and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder by acceleration or otherwise, according to of all payment obligations of the terms thereof and of Issuers under this Indenture and the Notes, whether for payment of principal of, premium, or interest and all other monetary obligations of the Issuers under this Indenture or in respect of the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company with respect to Issuers whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes to any Holder or (all the Trustee hereunder or thereunderforegoing being hereinafter collectively called the “Guaranteed Obligations”). Each Any such Note Guarantor further agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from itsuch Note Guarantor, and that it will such Note Guarantor shall remain bound under this Section 10.01 Article 10 notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(fb) Each Note Guarantor waives presentation to, demand of payment from and protest to the Company Issuers of any of the Guarantor Guaranteed Obligations and also waives notice of protest for nonpayment. Each Note Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Note Guarantor hereunder shall not be affected by (i) the failure of any Holder, the Collateral Agents on behalf of the Holders or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (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 Notes held by any Holder, the Collateral Agents or the Trustee for the Guaranteed Obligations or any of them; (v) the failure of any Holder, the Collateral Agents on behalf of the Holders or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of such Note Guarantor, except as provided in Section 10.02(c).
(gc) Each Note Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Note Guarantors, such that such Note Guarantor’s obligations would be less than the full amount claimed. Each Note Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuers first be used and depleted as payment of the Issuers’ or such Note Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Note Guarantor hereunder. Each Note Guarantor hereby waives any right to which it may be entitled to require that the Issuers be sued prior to an action being initiated against such Note Guarantor.
(d) Each Note Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security Note held for payment of the Guarantor Guaranteed Obligations.
(he) If any Note Guarantor makes payments under its Note Guarantee, each Note Guarantor must contribute its share of such payments. Each Note Guarantor’s share of such payment will be computed based on the proportion that the net worth of the relevant Note Guarantor represents relative to the aggregate net worth of all the Note Guarantors combined.
(f) [Reserved].
(g) Each Note Guarantor agrees that its Note Guarantee shall remain in full force and effect until payment in full of the Guaranteed Obligations. Except as expressly set forth in Section 10.04Sections 4.12, 4.13, 8.01(b), 10.02, Schedule 10.1 and the terms of any Note Guarantee Supplement, the obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)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 Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations obligations of each Note Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturityagreement, by acceleration or otherwise; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations obligations, or (h) 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 such Note Guarantor or would otherwise operate as a discharge of such Note Guarantor as a matter of law or equity.
(ih) Each Note Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company Issuers or otherwiseotherwise unless such Note Guarantee has been released in accordance with this Indenture.
(ji) In Subject to the limitations set forth in Schedule 10.1, 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 Note Guarantor by virtue hereof, upon the failure of the Company Issuers to pay the principal of or interest on any of the Guarantor Obligations 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 Note Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and the Notes, (ii) accrued and unpaid interest on the Notes and (iii) all other monetary obligations of the Issuers to the Holders and the Trustee, including any other unpaid principal amount of such Guarantor Guaranteed Obligations, accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of and any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding)Additional Amounts.
(kj) Each Note Guarantor agrees that it shall not be entitled to exercise 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 Note Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its Note any Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Note Guarantor for the purposes of this Note GuaranteeSection 10.01.
(lk) Each Note Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this Section 10.01.
(l) Upon request of the Trustee, each Note Guarantor shall execute and deliver such further instruments and do such further acts as the Trustee may reasonably require to carry out more effectively the purpose of this Indenture.
(m) The Collateral Agents may only assert a claim or demand or enforce a right or remedy with respect to the Note Guarantees at the direction of the Trustee. The Trustee may direct the Collateral Agents to take enforcement action with respect to the Note Guarantees if any amount is declared or becomes due and payable pursuant to Section 6.02 (but not otherwise).
Appears in 2 contracts
Sources: Senior Secured Indenture (NXP Semiconductors N.V.), Senior Secured Indenture (NXP Semiconductors N.V.)
Note Guarantees. (a) Subject to the provisions of this Section Article 10, each of the Note Guarantors hereby, jointly and severally with each other Note Guarantor hereby fullyand with Holdings, irrevocably and unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several senior unsecured basis (Holdings on an unsecured senior subordinated basis), 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 or the Trustee the due and punctual payment obligations of the Issuers hereunder or thereunder, that: (a) the principal of (and of, premium, if any) , and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, Notes shall be promptly paid in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender for repayment at the option of any Holder redemption or otherwise, according to and interest on the terms thereof overdue principal of and of this Indenture interest on the Notes, if any, if lawful, and all other obligations of the Company with respect Issuers to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that thereunder whether for payment of principal of, premium, if any, or interest, on the Guarantor Obligations will rank equally in right of payment with Notes and all other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the monetary obligations of the Guarantors Issuers under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in and the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto Notes shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain promptly paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, thereof; and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, each Note Guarantor, together with Holdings as described in Article 11, shall be jointly and severally, obligated to pay the same immediately. Each Note Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Note Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the terms validity, regularity or provisions enforceability of the Notes, the Holdings Guarantee, any Note Guarantee or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuers, Holdings or any Note Guarantor, any action to enforce the same or any other agreement; (d) circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Note Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the release event of any security held by any Holder for insolvency or bankruptcy of the Guarantor Obligations; (e) the failure of any Holder to exercise Issuers, any right or remedy to require a proceeding first against any other Guarantor; (f) any change in the ownership of Issuers, protest, notice and all demands whatsoever and covenants that this Note Guarantee, as the Company; (g) any defaultcase may be, failure or delay, willful or otherwise, in the shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. Each Note Guarantor Obligations also agrees to pay, in addition to the amount stated above, any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or (h) any Holder in enforcing any rights under this Section 10.01. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers, Holdings, the Note Guarantors or any custodian, trustee, liquidator or other act similar official acting in relation to the Issuers, Holdings or thing the Note Guarantors, any amount paid either to the Trustee or omission or delay such Holder and this Note Guarantee, to do any other act or thing which may or might the extent theretofore discharged, shall be reinstated in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) full force and effect. Each Note Guarantor agrees that its it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Note Guarantor further agrees that, as between the Note Guarantors and Holdings, 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 Note 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, such obligations (whether or not due and payable) shall forthwith become due and payable by the Note Guarantors for the purpose of this Note Guarantee. The Note Guarantors shall have the right to seek contribution from any non-paying Note Guarantor or Holdings so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantees. Each Note Guarantee herein shall will be a continuing guarantee and shall:
(1) remain in full force and effect until payment in full of all the guaranteed obligations;
(2) subject to Section 10.06(a), be binding upon each such Note Guarantor Obligations or such Guarantor is released from and its successors; and
(3) inure to the benefit of and be enforceable by the Trustee, the Holders and their successors, transferees and assigns. Each Note Guarantee shall remain in compliance with Section 5.01 full force and effect and continue to be effective should any petition be filed by or Section 8.01 hereof. Each against the Issuers, Holdings or any Note Guarantor further agrees that its for liquidation or reorganization, should the Issuers, Holdings or any Note Guarantee herein shall Guarantor become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuers’, Holdings’ or any other Note Guarantor’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time paymentpayment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes, the Holdings Guarantee or Note Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. In case any provision of principal ofany Note Guarantee shall be invalid, premiumillegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Note Guarantee issued by any Note Guarantor shall be a general senior unsecured obligation of such Note Guarantor and shall be pari passu in right of payment with all existing and future Senior Pari Passu Indebtedness of such Note Guarantor, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause . Each payment to be paid, made by a Note Guarantor in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes respect of its Note Guarantee hereinshall be made without set-off, notwithstanding any staycounterclaim, injunction reduction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event diminution of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether kind or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guaranteenature.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Indenture (Realogy Group LLC), Indenture (Realogy Group LLC)
Note Guarantees. (a) Subject Each of the Note Guarantors, jointly and severally, hereby unconditionally Guarantees (and subject in each case to the provisions Agreed Guarantee Principles set forth in any notation of this Note Guarantee, supplemental indenture, or as contemplated by Section 10, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, 4.24(b)) 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 or the Trustee obligations of the Company hereunder or thereunder that: (i) the due and punctual payment of the principal of (and of, premium, if any) , and interest on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, (including, in case ii) the due and punctual payment of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)interest, if any, on the overdue principal of and interest on the Notes, when to the extent lawful, and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option punctual performance of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to promptly paid in full or performed, all in accordance with the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from itterms hereof and thereof, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (biii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration pursuant to Section 6.02 or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Note Guarantors shall be jointly and severally obligated to pay the same immediately. Each Note Guarantor shall agree that this is a Guarantee of payment and not a Guarantee of collection. If acceleration of the time for payment of any Notes Obligation by the Company is stayed by reason of the insolvency or receivership of the Company or otherwise, all Notes Obligations otherwise subject to acceleration under the terms of any Notes Document shall nonetheless be payable by the Note Guarantors hereunder forthwith on demand by the Trustee.
(b) Each of the Note Guarantors hereby agrees that its obligations with regard to its Guarantee shall be joint and several, unconditional, irrespective of the validity or provisions enforceability of the Notes or the obligations of the Company under this Indenture, the absence of any action to enforce the same, the recovery of any judgment against the Company or any other obligor with respect to this Indenture, the Notes or the obligations of the Company under this Indenture or the Notes, any action to enforce the same or any other agreement; circumstances (dother than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Note Guarantor. Each Note Guarantor further, to the release extent permitted by law, hereby waives and relinquishes all claims, rights and remedies accorded by applicable law to guarantors and agrees not to assert or take advantage of any such claims, rights or remedies, including but not limited to: (i) any right to require any of the Trustee, the Holders or the Company (each a “Benefited Party”), as a condition of payment or performance by such Note Guarantor, to (A) proceed against the Company, any other guarantor (including any other Note Guarantor) of the obligations under the Note Guarantees or any other person, (B) proceed against or exhaust any security held by from the Company, any Holder for such other guarantor or any other person, (C) proceed against or have resort to any balance of any deposit account or credit on the Guarantor Obligationsbooks of any Benefited Party in favor of the Company or any other person, or (D) pursue any other remedy in the power of any Benefited Party whatsoever; (eii) any defense arising by reason of the failure incapacity, lack of authority or any Holder to exercise disability or other defense of the Company including any right defense based on or remedy against arising out of the lack of validity or the unenforceability of the obligations under the Note Guarantees or any agreement or instrument relating thereto or by reason of the cessation of the liability of the Company from any cause other Guarantorthan payment in full of the obligations under the Note Guarantees; (fiii) any change defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (iv) any defense based upon any Benefited Party’s errors or omissions in the ownership administration of the Companyobligations under the Note Guarantees, except behavior which amounts to bad faith; (gv)
(A) any defaultprinciples or provisions of law, failure or delay, willful statutory or otherwise, which are or might be in conflict with the performance terms of the Guarantor Obligations Note Guarantees and any legal 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 equitable discharge of such Note Guarantor’s obligations hereunder and under its Note Guarantee, (B) the benefit of any statute of limitations affecting such Note Guarantor’s liability hereunder and under its Note Guarantee or the enforcement hereof and thereof, (C) any rights to set-offs, recoupments and counterclaims and (D) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (vi) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Note Guarantees, notices of default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification of the obligations under the Note Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (vii) to the extent permitted under applicable law, the benefits of any “One Action” rule; and (viii) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the Note Guarantees. Except as set forth in Section 13.05, each Note Guarantor as a matter of law or equity.
(i) Each Guarantor agrees covenants that its Note Guarantee herein shall remain not be discharged except by complete performance of the obligations contained in its Note Guarantee and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Note Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Note Guarantors, any amount paid to either the Trustee or such Holder, any Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect effect.
(d) Each Note Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Note Guarantor shall further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees agree that, as between such Guarantorthe Note Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (xi) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Section 6.02 for the purposes of its Note Guarantee hereinany Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby and (yii) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Section 6.02, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor the Note Guarantors for the purposes purpose of this any such Guarantee. The Note Guarantors shall have the right to seek contribution from any non-paying Note Guarantor so long as the exercise of such right does not impair the rights of the Holders under the applicable Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Indenture (Invacare Corp), Indenture (Invacare Corp)
Note Guarantees. (a) Subject to the provisions of this Section 10ARTICLE VII, each Guarantor the Guarantors hereby fully, irrevocably and unconditionally guarantee, jointly and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basisseverally, to each Holder and to the Trustee and the Authorized Agents the full and punctual payment (whether at an installment date or the Maturity Date, upon redemption, purchase pursuant to an offer to purchase or acceleration or otherwise) of the Notes principal, premium (if any) or interest, and any other amounts that may come due and payable under each Note and the Trustee the due full and punctual payment of all other amounts payable by the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of Issuer under this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees as they come due, provided that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject limited to the maximum amount as shall, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any reduction, limitation, impairment collections from or termination for payments made by or on behalf of any reason (other than payment Guarantor in respect of the obligations of such other Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration under its Note Guarantee or compromise, and shall not be subject pursuant to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person its contribution obligations under this Indenture, result in such obligations not constituting a fraudulent conveyance, fraudulent transfer or similar illegal transfer under Applicable Law. Upon failure by the Notes or Issuer to pay punctually any other agreement or otherwise; (b) such amount, each of the Guarantors shall, without duplication, forthwith pay the amount not so paid at the place and time and in case the manner specified in this Indenture. This Note Guarantee constitutes a direct, joint and several, general unsecured and unconditional primary obligation of each Guarantor that will at all times rank at least pari passu with any extension of time of payment or renewal of any Notes or any existing and future senior unsecured Indebtedness of such other obligationsGuarantor, that the same will except for such obligations as may be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, preferred by acceleration or otherwise; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenturelaw that are both mandatory and of general application, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Company; (g) any defaultincluding without limitation, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force tax and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereoflabor claims. Each Guarantor further hereby agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, addition to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvencyamounts stated above, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, indemnity amounts and reasonable and documented costs and expenses (including attorneys’ reasonable and documented counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under any Note Guarantee. Each of the Guarantors hereby unconditionally and irrevocably waives all benefits applicable thereto to the fullest extent possible under existing law for this Section 10.01Note Guarantee to be joint and several with the obligations of the Issuer.
Appears in 2 contracts
Sources: Indenture (Auna S.A.), Indenture (Auna S.A.A.)
Note Guarantees. (a) Subject to the provisions of this Section 10Each Guarantor, each Guarantor hereby fullyjointly and severally, unconditionally and irrevocably guaranteesguarantees the Notes and the Obligations hereunder and thereunder, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder of a Note authenticated and delivered by the Notes Indenture Trustee and to the Indenture Trustee the due and punctual payment on behalf of such Holder, that:
(i) the principal of (and premium, if any) any and interest on the Notes shall be paid in full when due, whether at the Legal Final Maturity Date, by acceleration or otherwise (including, in case without limitation, the amount that would become due but for the operation of defaultthe automatic stay under Section 362(a) of the Bankruptcy Code), together with interest on principal andthe overdue principal, if any, and interest on any overdue interest, to the extent permitted by applicable lawlawful, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect Issuer to the Notes to any Holder Holders or the Indenture Trustee hereunder or thereunder. Each Guarantor agrees that thereunder shall be paid in full or performed, all in accordance with the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, terms hereof and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.thereof; and
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligationsObligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitythe Legal Final Maturity Date, by acceleration or otherwise. The obligations of each Guarantor are direct, independent and primary obligations of each Guarantor and are irrevocable, absolute, unconditional, and continuing obligations and are not conditioned in any way upon the institution of suit or the taking of any other action, the pursuit of any remedies or any attempt to enforce performance of or compliance with the Obligations by the Issuer and each Guarantor, and their respective successors, transferees or assigns, and shall constitute a guaranty of payment and performance and not of collection, binding upon the Guarantor and its successors and assigns and irrevocable without regard to the validity, legality or enforceability of this Indenture or any other Basic Document, or the lack of power or authority of the Issuer or any Guarantor to enter into this Indenture or any other Basic Document, or any substitution, release or exchange of any other guaranty or any other security for any of the Obligations or any other circumstance whatsoever (other than payment) that might otherwise constitute a legal or equitable discharge of a surety or guarantor, and shall not be subject to any right of set off, recoupment or counterclaim and are in no way conditioned or contingent upon any attempt to collect from the Issuer, any Guarantor or any other entity or to perfect or enforce any security or upon any other condition or contingency or upon any other action, occurrence, or circumstance whatsoever. Without limiting the generality of the foregoing, no Guarantor shall have any right to terminate this guaranty, or to be released, relieved or discharged from its obligations hereunder except as provided in Section 11.1 hereof, and such obligations shall not be affected, diminished, modified or impaired for any reason whatsoever, including, without limitation, (i) the change, modification or amendment of any obligation, duty, guarantee, warranty, responsibility, covenant or agreement set forth in this Indenture, the granting of any extension of time for payment to the Issuer or any other surety, or any extension or renewal of the Issuer’s obligations under this Indenture, (ii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of any of the Issuer’s or any Guarantor’s assets, the receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization of or similar proceedings affecting the Issuer or any Guarantor or any of the assets of the Issuer or any Guarantor, (iii) any furnishing or acceptance of additional security or any exchange, surrender, substitution or release of any security, (iv) any waiver, consent or other action or inaction or any exercise or non-exercise of any right, remedy or power with respect to the Obligations or this Indenture, (v) any merger or consolidation of the Issuer or the Guarantor into or with any other person or entity, the Issuer’s loss of its separate corporate identity or its ceasing to be an affiliate of any Guarantor, or (vi) the failure to give notice to any Guarantor of the occurrence of a default under the terms and provisions of this Indenture.
(b) Each Guarantor irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any right it may have now, or in the future, under law or in equity, to: (i) the notice of any waiver or extension granted to the Issuer; (ii) all notices which may be required by applicable statute, rule of law or otherwise to preserve any of the rights of the Noteholders against the Issuer, each Guarantor or any other person; (iii) require either that an action be brought against the Issuer or any other person or entity as a condition to proceeding against any Guarantor, or to require that action be first taken against any security given by the Issuer or any Guarantor; (iv) notice of (a) any Noteholder’s acceptance and reliance on this guaranty, (b) default or demand in the case of default, provided such notice or demand has been given to or made upon the Issuer or any Guarantor, and (c) any rescissionextensions or consents granted to the Issuer, any Guarantor or any other surety; (v) promptness, diligence, presentment, demand of payment or enforcement and any other notice with respect to any of the Obligations and this guaranty; (vi) require any election of remedies; (vii) require the marshalling of assets or the resort to any other security; (viii) except as otherwise expressly provided herein, claim any other defense, contingency, circumstance or matter which might constitute a legal or equitable discharge of a surety or guarantor; (ix) any defense based on or arising out of the voluntary or involuntary bankruptcy, insolvency, liquidation, dissolution, receivership, or other similar proceeding affecting the Issuer; or (x) any defense related to the addition, substitution or partial or entire release of any guarantor, maker or other party (including the Issuer and each Guarantor) primarily or secondarily liable or responsible for the performance and observance of any of the terms set forth in this Indenture and the other Basic Documents or by any extension, 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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations or (h) any other act or thing or omission or delay to do any other act or thing action whatsoever which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as release a discharge of such Guarantor as a matter of law or equityguarantor (other than performance).
(ic) Each Guarantor agrees that its If any Noteholder or the Indenture Trustee is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or any Guarantor, any amount paid by any of them to the Indenture Trustee or such Noteholder, the Note Guarantee herein of each of the Guarantors, to the extent theretofore discharged, shall remain be reinstated in full force and effect until payment effect. This paragraph (c) shall remain effective notwithstanding any contrary action which may be taken by the Indenture Trustee or any Noteholder in full of all the Guarantor Obligations or reliance upon such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note Guarantee herein shall continue amount required to be effective or be reinstated, as returned. This paragraph (c) shall survive the case may be, if at any time payment, or any part thereof, termination of principal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwisethis Indenture.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(kd) Each Guarantor further agrees that, as between such each Guarantor, on the one hand, and the HoldersHolders and the Indenture Trustee, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture Article V hereof for the purposes of its the Note Guarantee hereinof such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor ObligationsObligations as provided in Article V hereof, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such each Guarantor for the purposes purpose of this the Note GuaranteeGuarantee of such Guarantor.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Indenture (Diversified Energy Co PLC), Indenture (Diversified Energy Co PLC)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Guarantor hereby jointly and severally, fully, unconditionally and irrevocably guaranteesguarantees the Notes and obligations of the Issuers hereunder and thereunder, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder of the Notes a Note authenticated and delivered by the Trustee and to the due and punctual payment Trustee on behalf of such Holder, that: (i) the principal of (and premium, if any) any and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes shall be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender call for repayment at redemption or otherwise (including, without limitation, the option amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), together with interest on the overdue principal, if any, and interest on any Holder or otherwiseoverdue interest, according to the terms thereof and of this Indenture extent lawful, and all other obligations of the Company with respect Issuers to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto thereunder shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
thereof; and (d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification of any . Each of the terms Note Guarantees shall be a guarantee of payment and not of collection.
(b) Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or provisions enforceability of the Notes or this Indenture, the Notes 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 agreement; circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(dc) Each Guarantor hereby waives the release benefits of any security held by any Holder diligence, presentment, demand for payment, filing of claims with a court in the Guarantor Obligations; (e) event of insolvency or bankruptcy of the failure of any Holder to exercise Company, any right to require a proceeding first against the Company or remedy any other Person, protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note and such Note Guarantee or as provided for in this Indenture. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal or premium, if any or interest on such Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce such Guarantor’s Note Guarantee without first proceeding against the Company or 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) . Each Guarantor agrees that its if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuers or any Guarantor, any amount paid by any of them to the Trustee or such Holder, the Note Guarantee herein of each of the Guarantors, to the extent theretofore discharged, shall remain be reinstated in full force and effect until payment effect. This paragraph (d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in full of all the Guarantor Obligations or reliance upon such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note Guarantee herein shall continue amount required to be effective or be reinstated, as returned. This paragraph (d) shall survive the case may be, if at any time payment, or any part thereof, termination of principal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwisethis Indenture.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(ke) Each Guarantor further agrees that, as between such each Guarantor, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI for the purposes of its the Note Guarantee hereinof such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article VI, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Guarantor for the purposes purpose of this the Note GuaranteeGuarantee of such Guarantor.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Indenture (Ryerson Holding Corp), Indenture (Ryerson International Material Management Services, Inc.)
Note Guarantees. (a) Subject If any Restricted Subsidiary (including any Restricted Subsidiary formed or acquired after the Issue Date) shall become a borrower or guarantor under any U.S. Credit Facility, then such Restricted Subsidiary shall (i) execute and deliver to the provisions of this Section 10, each Guarantor hereby fully, Trustee a supplemental indenture in form and substance satisfactory to the Trustee pursuant to which such Restricted Subsidiary shall unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, to each Holder Guarantee all of the Company’s obligations under the Securities and this Indenture on the terms set forth in Article Twelve and (ii) deliver to the Trustee an Opinion of Counsel that such supplemental indenture has been duly authorized, executed and delivered by such Restricted Subsidiary and constitutes a legal, valid, binding and enforceable obligation of such Subsidiary; provided, however, that if, at any time, the 9.5% Notes are not outstanding, all references in the Indenture and the Trustee the due Securities to “Restricted Subsidiary” or “Restricted Subsidiaries” shall be changed to, and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required deemed to be paid according to the terms of the Notes)a reference to, if any, on the Notes, when “Subsidiary” and “Subsidiaries,” as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claimsapplicable.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of Notwithstanding the foregoing, each Guarantee by a Guarantor of the Guarantor Obligations Securities shall provide by its terms that it shall be automatically and unconditionally released and discharged upon (i) any sale, exchange or transfer, to any Person not an Affiliate of each Guarantor herein shall not be discharged the Company, of all of the Company’s Capital Stock in, or impaired all or otherwise affected by (a) substantially all the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indentureassets of, the Notes or any other agreement or otherwise; (b) such Guarantor, which transaction is in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance compliance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder Indenture and pursuant 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or transaction such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premiumall guarantees, if any, or interest on any by it of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization other Indebtedness of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption its Subsidiaries or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only Subsidiary ceasing to the extent not prohibited by law) (including interest accruing after the filing of be a borrower or guarantor under any petition in bankruptcy U.S. Credit Facility or the commencement 9.5% Notes (other than by reason of a payment under a guarantee by any insolvencySubsidiary), reorganization or like proceeding relating (iii) such Subsidiary ceasing to the Company or any Guarantor whether or not be a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity wholly owned Subsidiary of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note GuaranteeCompany.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Indenture (Diversified Contractors Inc), Indenture (General Cable Corp /De/)
Note Guarantees. (a) Subject to As promptly as practicable and in any event within 60 days of the provisions Issue Date (the “60 Day Post-Closing Period”), Holdings and each of this Section 10its Restricted Subsidiaries (other than the Issuers) that are borrowers or guarantors under the Credit Agreement, each Guarantor hereby fullyexcluding certain entities that would trigger a Rule 3-10 release as reasonably determined by Holdings, will jointly and severally irrevocably and unconditionally and irrevocably guaranteesguarantee, as primary obligor a guarantor and not merely as a surety, on a joint and several basis, to each Holder of the Notes and the Trustee the due performance and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder by acceleration or otherwise, according to of all obligations of the terms thereof and of Issuers under this Indenture and the Securities, whether for payment of principal of, premium, if any, or interest or additional interest on the Securities, expenses, indemnification or otherwise (all other such obligations of guaranteed by such Note Guarantors being herein called the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder“Guaranteed Obligations”). Each Note Guarantor further agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Note Guarantor, and that it will each such Note Guarantor shall remain bound under this Section 10.01 Article 11 notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(fb) Each Note Guarantor waives presentation to, demand of payment from and protest to the Company Issuers of any of the Guarantor Guaranteed Obligations and also waives notice of protest for nonpayment. Each Note Guarantor waives notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of each Note 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 Issuers or any other Person under this Indenture, the Securities or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Securities or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (iv) the release of any security, if any, held by any Holder or the Trustee for the Guaranteed Obligations or any Note 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 such Note Guarantor, except as provided in Section 11.02(b).
(gc) Except as otherwise provided herein, each Note Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Note Guarantors, such that such Note Guarantor’s obligations would be less than the full amount claimed. Each Note Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuers first be used and depleted as payment of the Issuers’ or such Note Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Note Guarantor hereunder. Each Note Guarantor hereby waives any right to which it may be entitled to require that the Issuers be sued prior to an action being initiated against such Note Guarantor.
(d) Each Note Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment 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 Guarantor Guaranteed Obligations.
(he) Except as expressly set forth in Section 10.04Sections 8.01 and 11.02, the obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)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 Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations obligations of each Note Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes Securities or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturityagreement, by acceleration or otherwise; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations obligations, or (h) 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 Note Guarantor or would otherwise operate as a discharge of such any Note Guarantor as a matter of law or equity.
(if) Each Except as set forth in Sections 8.01 and 11.02, each Note Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guaranteed Obligations. Except as set forth in Sections 8.01 and 11.02, each Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company Issuers or otherwise.
(jg) 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 Note Guarantor by virtue hereof, upon the failure of the Company Issuers to pay the principal of or interest on any of the Guarantor Obligations 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 Note Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating Issuers to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed Holders and the Trustee and the Collateral Agent in such proceeding)respect of the Guaranteed Obligations.
(kh) Each Note 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 Note Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its any Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Note Guarantor for the purposes of this Note GuaranteeSection 11.01.
(li) Each Note Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee Trustee, the Collateral Agent or the Holders any Holder in enforcing any rights under this Section 10.0111.01.
(j) Upon request of the Trustee, each Note 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.
(k) Any Note Guarantee given by any direct or indirect parent of Holdings may be released and discharged from all obligations under this Article 11 at any time upon written notice to the Trustee from such direct or indirect parent of Holdings.
Appears in 2 contracts
Sources: Indenture (Gates Global Inc.), Indenture (Gates Engineering & Services FZCO)
Note Guarantees. (a) Subject to the provisions of this Section Article 10, each Guarantor hereby fully, unconditionally and irrevocably guaranteesof the Guarantors hereby, as primary obligor and not merely as a surety, jointly and severally, unconditionally and on a joint and several basis, senior basis guarantees to each Holder authenticated and delivered by the Trustee (or the Authenticating Agent), to the Trustee and its successors and assigns and to the Notes Security Agent (on behalf of and for the benefit of the Holders, for the purpose of this Article 10, and not in its individual capacity, but solely in its role as representative of the Holders in holding and enforcing the Notes Collateral and the Trustee the due and punctual payment Notes Security Documents), irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that:
(1) the principal of (of, and premium, if any) , and interest (includingon, the Notes will be promptly paid in case of defaultfull when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal andof and interest, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)premium, if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that and all other obligations of the Guarantor Obligations may Issuer to the Holders or the Trustee or the Notes Security Agent hereunder or thereunder will be extended promptly paid in full or renewedperformed, all in whole or in part, without notice or further assent from it, accordance with the terms hereof and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.thereof; and
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when 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. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) Each Guarantor hereby agrees that its obligations hereunder are unconditional, irrespective of the terms validity, regularity or provisions enforceability of the Notes or this Indenture, the absence of any action or any delay or omission to assert any claim or to demand or enforce any remedy hereunder or thereunder, any waiver, surrender, release or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other agreement; circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor (d) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until than payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofof the Issuer hereunder and under the Notes). Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cashwaives, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the fullest extent not prohibited permitted by law) (including interest accruing after the , diligence, presentment, demand of payment, filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not claims with a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) court in the event of insolvency or bankruptcy of the Issuer, any such declaration right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that this Note Guarantee will not be discharged except by complete performance of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether the obligations contained in the Notes and this Indenture or not due and payable) shall forthwith become due and payable by such Guarantor for release in accordance with the purposes provisions of this Note GuaranteeIndenture.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Indenture (Altice USA, Inc.), Indenture
Note Guarantees. (a) Subject to the provisions of this Section 10Article Twelve, each Subsidiary Guarantor hereby fully, irrevocably and unconditionally and irrevocably guarantees, as primary obligor jointly and not merely as suretyseverally, on a joint and several basis, senior basis to each Holder and to the Trustee, on behalf of the Notes and the Trustee Holders, (i) the due and punctual payment of the principal of (and of, premium, if any) , and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)Liquidated Damages, if any, on the Noteseach Note, when and as the same shall become due and payable, whether at Stated MaturityMaturity or purchase upon a Change of Control Triggering Event or Asset Sale Offer, upon redemption, upon and whether by declaration of acceleration, upon tender a Change of Control Triggering Event, Asset Sale Offer, call for repayment at the option of any Holder redemption or otherwise, according the due and punctual payment of interest on the overdue principal of, premium, if any, and interest and Liquidated Damages, if any, on the Notes, to the terms thereof extent lawful, and the due and punctual performance of this Indenture and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that all in accordance with the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation terms of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on and this Indenture and (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (bii) in the case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated MaturityMaturity or purchase upon a Change of Control Triggering Event or Asset Sale Offer, and whether by acceleration declaration of acceleration, a Change of Control Triggering Event, Asset Sale Offer, call for redemption or otherwise; otherwise (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 for the Guarantor Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change obligations in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
clauses (i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all (ii) hereof being the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof"Guaranteed Obligations"). Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as Without limiting the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any generality of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization foregoing, each Subsidiary Guarantor's liability shall extend to all amounts that constitute part of the Company or otherwise.
(j) In furtherance of the foregoing Guaranteed Obligations and not in limitation of any other right which any Holder has at law or in equity against any Guarantor would be owed by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of under the Holders an amount equal Notes and the Indenture but for the fact that they are unenforceable or not allowable due to the sum existence of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvencya bankruptcy, reorganization or like similar proceeding relating involving the Company. The Subsidiary Guarantors hereby agree that their obligations hereunder shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any such Note or this Indenture, any failure to enforce the provisions of any such Note or this Indenture, any waiver, modification or indulgence granted to the Company with respect thereto, by any Holder or any Guarantor whether other circumstances which may otherwise constitute a legal or equitable discharge or defense of the Company or a surety or guarantor. The Subsidiary Guarantors hereby waive diligence, presentment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company, the benefit of discussion, protest or notice with respect to any such Note or the Indebtedness evidenced thereby and all demands whatsoever (except as specified above), and covenant that the Guaranteed Obligations will not a claim for postfiling or post-petition interest is allowed be discharged as to any such Note except by payment in full of such proceeding).
(k) Guaranteed Obligations and as provided in Sections 401, 1102, 1205 and 1206. Each Subsidiary Guarantor further agrees that, as between such Guarantor, on the one hand, Subsidiary Guarantor and the Holders, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee hereinArticle Five, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Company or any other Subsidiary Guarantor Obligations guaranteed hereby in respect of the Guaranteed Obligations, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article Five, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by each Subsidiary Guarantor. In addition, without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article Five, the Trustee shall promptly make a demand for payment on any Notes in respect of which the Guaranteed Obligations provided for in this Article Twelve are not discharged. Each Subsidiary Guarantor hereby irrevocably waives any claim or other rights that it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of such Subsidiary Guarantor's obligations under this Indenture, or any other document or instrument including, without limitation, any right of reimbursement, exoneration, contribution, indemnification, any right to participate in any claim or remedy of the Holders against the Company, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, directly or indirectly, in cash or other property or in any other manner, payment or security on account of such claim or other rights. Each Subsidiary Guarantor shall be subrogated to all rights of the Holders of the Notes pursuant to any Note Guarantee against the Company in respect of any amounts paid by such Subsidiary Guarantor on account of such Note pursuant to the provisions of this Indenture; PROVIDED, HOWEVER, that no Subsidiary Guarantor shall be entitled to enforce or to receive any payment arising out of, or based upon such right of subrogation until the principal of (and premium, if any) and interest on all Notes issued hereunder shall have been paid in full to the Holders entitled thereto. If any amount shall be paid to any Subsidiary Guarantor in violation of this paragraph and the Guaranteed Obligations shall not have been paid in full, such amount shall be deemed to have been paid to such Subsidiary Guarantor for the purposes benefit of, and held in trust for the benefit of, the Holders, and shall forthwith be paid to the Trustee. Each Subsidiary Guarantor acknowledges that it shall receive direct and indirect benefits from the issuance of this Note Guarantee.
(l) Each Guarantor also agrees to pay any the Notes and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by that the Trustee or the Holders waiver set forth in enforcing any rights under this Section 10.011201 is knowingly made in contemplation of such benefits.
Appears in 2 contracts
Sources: Indenture (Fleming Companies Inc /Ok/), Indenture (Fleming Companies Inc /Ok/)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Guarantor hereby fullyjointly and severally, unconditionally and irrevocably guaranteesguarantees the Notes and obligations of the Issuer hereunder and thereunder, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder of the Notes a Note authenticated and delivered by the Trustee and to the due and punctual payment Trustee on behalf of such Holder, that: (i) the principal of (and premium, if any) any and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes shall be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender call for repayment at redemption or otherwise (including the option amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), together with interest on the overdue principal, if any, and interest on any Holder or otherwiseoverdue interest, according to the terms thereof and of this Indenture extent lawful, and all other obligations of the Company with respect Issuer to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto thereunder shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
thereof; and (d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification of any . Each of the terms Note Guarantees shall be a guarantee of payment and not of collection.
(b) Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or provisions enforceability of the Notes or this Indenture, the Notes 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 Issuer, any action to enforce the same or any other agreement; circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(dc) Each Guarantor hereby waives the release benefits of any security held by any Holder diligence, presentment, demand for payment, filing of claims with a court in the Guarantor Obligations; (e) event of insolvency or bankruptcy of the failure of any Holder to exercise Issuer, any right to require a proceeding first against the Issuer or remedy any other Person, protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note and such Note Guarantee or as provided for in this Indenture. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal or premium, if any or interest on such Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce such Guarantor’s Note Guarantee without first proceeding against the Issuer or 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) . Each Guarantor agrees that its if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or any Guarantor, any amount paid by any of them to the Trustee or such Holder, the Note Guarantee herein of each of the Guarantors, to the extent theretofore discharged, shall remain be reinstated in full force and effect until payment effect. This paragraph (d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in full of all the Guarantor Obligations or reliance upon such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note Guarantee herein shall continue amount required to be effective or be reinstated, as returned. This paragraph (d) shall survive the case may be, if at any time payment, or any part thereof, termination of principal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwisethis Indenture.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(ke) Each Guarantor further agrees that, as between such each Guarantor, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI hereof for the purposes of its the Note Guarantee hereinof such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article VI hereof, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Guarantor for the purposes purpose of this the Note GuaranteeGuarantee of such Guarantor.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Indenture (Carrols Restaurant Group, Inc.), Indenture (Carrols Restaurant Group, Inc.)
Note Guarantees. (a) Subject to the provisions of this Section 10Article 11, each Guarantor hereby fullyof the Subsidiary Guarantors hereby, jointly and severally, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, 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 or the Trustee the due and punctual payment obligations of the Company hereunder or thereunder, that:
(1) the principal of (and of, premium, if any) , on, and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)interest, if any, on the Notes, Notes will be promptly paid in full when and as the same shall become due and payabledue, whether at Stated Maturitymaturity, upon redemption, upon by acceleration, upon tender for repayment at the option of any Holder redemption or otherwise, according to and interest on the terms thereof overdue principal of, premium on, if any, and of this Indenture interest, if any, on, the Notes, if lawful, and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that thereunder will be promptly paid in full or performed, all in accordance with the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, terms hereof and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.thereof; and
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Subsidiary Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the terms validity, regularity or provisions enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other agreement; (d) the release circumstance which might otherwise constitute a legal or equitable discharge or defense of any security held by any Holder for the a guarantor. Each Subsidiary Guarantor Obligations; (e) the failure hereby waives diligence, presentment, demand of any Holder to exercise any right or remedy against any other Guarantor; (f) any change payment, filing of claims with a court in the ownership event of insolvency or bankruptcy of the Company; (g) , any defaultright to require a proceeding first against the Company, failure or delayprotest, willful or otherwise, in the notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged except by complete performance of the Guarantor Obligations or (h) any other act or thing or omission or delay to do any other act or thing which may or might obligations contained in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equityNotes and this Indenture.
(ic) Each Guarantor agrees that its If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this Note Guarantee herein shall remain Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect effect.
(d) Each Subsidiary Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Subsidiary Guarantor further agrees that, as between such Guarantorthe Subsidiary Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x1) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 hereof for the purposes of its this Note Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y2) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article 6 hereof, such Guarantor Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by such Guarantor the Subsidiary Guarantors for the purposes purpose of this Note Guarantee.
(l) Each . The Subsidiary Guarantors will have the right to seek contribution from any non-paying Subsidiary Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by so long as the Trustee or exercise of such right does not impair the rights of the Holders in enforcing any rights under this Section 10.01the Note Guarantee.
Appears in 2 contracts
Sources: Indenture (Hc2 Holdings, Inc.), Indenture (HC2 Holdings, Inc.)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Guarantor hereby jointly and severally, fully, unconditionally and irrevocably guaranteesguarantees the Notes and obligations of the Issuer hereunder and thereunder, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder of the Notes a Note authenticated and delivered by the Trustee and to the due and punctual payment Trustee on behalf of such Holder, that: (i) the principal of (and premium, if any) any and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes shall be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender call for repayment at redemption or otherwise (including, without limitation, the option amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), together with interest on the overdue principal, if any, and interest on any Holder or otherwiseoverdue interest, according to the terms thereof and of this Indenture extent lawful, and all other obligations of the Company with respect Issuer to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto thereunder shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
thereof; and (d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification of any . Each of the terms Note Guarantees shall be a guarantee of payment and not of collection.
(b) Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or provisions enforceability of the Notes or this Indenture, the Notes 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 Issuer, any action to enforce the same or any other agreement; circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(dc) Each Guarantor hereby waives the release benefits of any security held by any Holder diligence, presentment, demand for payment, filing of claims with a court in the Guarantor Obligations; (e) event of insolvency or bankruptcy of the failure of any Holder to exercise Issuer, any right to require a proceeding first against the Issuer or remedy any other Person, protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note and such Note Guarantee or as provided for in this Indenture. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal or premium, if any or interest on such Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce such Guarantor’s Note Guarantee without first proceeding against the Issuer or 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) . Each Guarantor agrees that its if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or any Guarantor, any amount paid by any of them to the Trustee or such Holder, the Note Guarantee herein of each of the Guarantors, to the extent theretofore discharged, shall remain be reinstated in full force and effect until payment effect. This paragraph (d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in full of all the Guarantor Obligations or reliance upon such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note Guarantee herein shall continue amount required to be effective or be reinstated, as returned. This paragraph (d) shall survive the case may be, if at any time payment, or any part thereof, termination of principal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwisethis Indenture.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(ke) Each Guarantor further agrees that, as between such each Guarantor, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Section 6.2 for the purposes of its the Note Guarantee hereinof such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Section 6.2, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Guarantor for the purposes purpose of this the Note GuaranteeGuarantee of such Guarantor.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Indenture (Spirit AeroSystems Holdings, Inc.), Indenture (Spirit AeroSystems Holdings, Inc.)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Note Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint jointly and several basisseverally with each other Note Guarantor, to each Holder of the Notes and the Trustee the due full and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payabledue, whether at Stated Maturitymaturity, upon redemption, upon by acceleration, upon tender for repayment at the option of any Holder by redemption or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to Obligations (such guaranteed Obligations, the Notes to any Holder or the Trustee hereunder or thereunder"Guaranteed Obligations"). Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 Article X notwithstanding any extension or renewal of any Obligation. Each Note Guarantor Obligationhereby agrees to pay, in addition to the amounts stated above, any and all expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under any Note Guarantee.
(fb) Each Note Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Note Guarantor waives notice of any default under the Notes or the Obligations. The obligations of each Note Guarantor Obligationshereunder shall not be affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (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 Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Note Guarantor; or (vi) any change in the ownership of the Company.
(gc) Each Note Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(hd) Except as set forth in Section 10.04, the The obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations obligations of each Note Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturityagreement, by acceleration or otherwise; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations Obligations, or (h) 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 such Note Guarantor or would otherwise operate as a discharge of such Note Guarantor as a matter of law or equity.
(ie) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, of or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(jf) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any each Note Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Note Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of of:
(i) the unpaid amount of such Guarantor Obligations then due and owing and owing; and
(ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(kg) Each Note Guarantor further agrees that, as between such Note Guarantor, on the one hand, and the Holders, on the other hand, :
(xi) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and hereby; and
(yii) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Note Guarantor for the purposes of this its Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Indenture (Baron Wire & Cable Corp.), Indenture (CCI International, Inc.)
Note Guarantees. (a) Subject Notwithstanding any provision of this ARTICLE X to the contrary, the provisions of this ARTICLE X will be applicable only to, and inure solely to the benefit of, the Notes of any Series designated, pursuant to Section 102.02(r), as entitled to the benefits of the Note Guarantee of each Guarantor identified in such designation.
(b) Subject to this ARTICLE X, each Guarantor hereby fullyof the Guarantors hereby, jointly and severally, unconditionally guarantees to the Holders of each Series of Notes authenticated and irrevocably guaranteesdelivered by the Trustee and to the Trustee and its successors and assigns, as primary obligor and not merely as surety, on a joint and several basis, to each Holder irrespective of the validity and enforceability of this Indenture, the Notes and or the Trustee the due and punctual payment obligations of the Issuer hereunder or thereunder, that:
(1) the principal of (and of, premium, if any) , and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, Notes of such Series will be promptly paid in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender for repayment at the option of any Holder redemption or otherwise, according to and interest on the terms thereof overdue principal of and of this Indenture interest on such Notes, if any, if lawful, and all other obligations of the Company with respect Issuer to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that thereunder will be promptly paid in full or performed, all in accordance with the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, terms hereof and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.thereof; and
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b2) in case of any extension of time of payment or renewal of any such Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration acceleration, redemption or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when 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. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(a) The Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the terms validity, regularity or provisions enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other agreement; (d) 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 release event of any security held by any Holder for insolvency or bankruptcy of the Guarantor Obligations; (e) the failure of any Holder to exercise Issuer, any right or remedy to require a proceeding first against any other Guarantor; (f) any change in the ownership of the Company; (g) any defaultIssuer, failure or delayprotest, willful or otherwise, in the notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged except by complete performance of the Guarantor Obligations or (h) any other act or thing or omission or delay to do any other act or thing which may or might obligations contained in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equityNotes and this Indenture.
(ib) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid by either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(c) Each Guarantor agrees that its Note Guarantee herein shall remain it will not be entitled to any right of subrogation in full force and effect relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantorthe Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x1) the maturity Maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture ARTICLE VI hereof for the purposes of its this Note Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y2) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in ARTICLE VI hereof, such Guarantor Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by such Guarantor the Guarantors for the purposes purpose of this Note Guarantee.
(l) Each . The Guarantors will have the right to seek contribution from any non-paying Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by so long as the Trustee or exercise of such right does not impair the rights of the Holders in enforcing any rights under this Section 10.01the Note Guarantee.
Appears in 2 contracts
Sources: Indenture (T-Mobile Innovations LLC), Indenture (T-Mobile US, Inc.)
Note Guarantees. (a) Subject to the provisions of this limitations set forth in Section 1016.05, each Guarantor hereby fullythe Guarantors hereby, jointly and severally, unconditionally and irrevocably guaranteesGuarantee, as primary obligor and not merely as surety, on a joint and several basis, to each Holder Holder, the Trustee, the Collateral Agent and their respective successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes and or the Trustee Obligations of the due and punctual payment of Company hereunder or thereunder, that: (a) the principal of (and premium, if any) , and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)interest, if any, on the NotesNotes (including interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceedings), shall be promptly paid in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon by acceleration, redemption, upon acceleration, upon tender for repayment at the option of any Holder required purchase or repurchase or otherwise, according to and interest on the terms thereof overdue principal of and of this Indenture interest on premium, if any, and interest, if any, if lawful, and all other obligations of the Company with respect to the Notes to any Holder or Holders, the Trustee and the Collateral Agent hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto thereunder shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain promptly paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, thereof; and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration acceleration, redemption, required purchase or repurchase or otherwise; (c) . Failing payment when due, subject to any rescissionapplicable grace period, waiver, amendment or modification of any amount so Guaranteed or any performance so Guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the terms validity, legality, regularity or provisions enforceability of the Notes or this Indenture, the Notes 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 or any Guarantor, any action to enforce the same or any other agreement; (d) circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives, to the release fullest extent permitted by applicable law, diligence, presentment, demand of any security held by any Holder for the Guarantor Obligations; (e) the failure payment, filing of any Holder to exercise any right or remedy against any other Guarantor; (f) any change claims with a court in the ownership event of insolvency or bankruptcy of the Company; (g) , any defaultright to require a proceeding first against the Company or another Guarantor, failure protest, notice and all demands whatsoever and covenant that the Note Guarantees shall not be discharged except by payment in full or delay, willful or otherwise, conversion in the performance full of the Guarantor Obligations Notes in accordance with this Indenture. If any Holder or (h) the Trustee is required by any court or otherwise to return to the Company or any of the Guarantors, or any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law or other act similar official acting in relation to either the Company or thing or omission or delay any of the Guarantors, any amount paid either to do any other act or thing which may or might in any manner the Trustee or to any such Holder, the Note Guarantees, to the extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that its Note Guarantee herein it shall remain not be entitled to any right of subrogation in full force and effect relation to the Holders in respect of any obligations Guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations Guaranteed hereby. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantorthe Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed obligations Guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its the Note Guarantee hereinGuarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed obligations Guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article 6, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor the Guarantors for the purposes purpose of this the Note Guarantee.
(l) Each Guarantees. The Guarantors shall have the right to seek contribution from any non-paying Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by so long as the exercise of such right does not impair the rights of the Trustee or the Holders in enforcing any rights under this Section 10.01the Note Guarantees.
Appears in 2 contracts
Sources: Indenture (Bloom Energy Corp), Indenture (Bloom Energy Corp)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Note Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint jointly and several basisseverally with each other Note Guarantor, to each Holder of the Notes and the Trustee (i) the due and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Noteseach Note, when and as the same shall become due and payable, whether at Stated Maturitymaturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder by acceleration or otherwise, according the due and punctual payment of interest on the overdue principal of and interest on the Notes, to the extent lawful, and the due and punctual payment of all other obligations and due and punctual performance of all obligations of the Issuers to the Holders or the Trustee all in accordance with the terms thereof and of such Note, this Indenture and all other obligations of the Company any Registration Rights Agreement with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other IndebtednessNote, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(bii) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf any extension of time of payment or renewal of any Notes or any of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees other obligations, that its Note Guarantee set forth in this Section 10.01 hereof shall remain the same will be promptly paid in full force and effect notwithstanding when due or performed in accordance with the absence terms of the endorsement of any notation of such extension or renewal, at stated maturity, by acceleration or otherwise (the “Guaranteed Obligations”). Each Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 Article X notwithstanding any extension or renewal of any Guaranteed Obligation. Each Note Guarantor Obligationhereby agrees to pay, in addition to the amounts stated above, any and all expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under any Note Guarantee.
(fb) Each Note Guarantor waives presentation to, demand of payment from and protest to the Company Issuers of any of the Guarantor Guaranteed Obligations and also waives notice of protest for nonpayment. Each Note Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Note Guarantor Obligationshereunder shall not be affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (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 any of them; (v) the failure of any Holder to exercise any right or remedy against any other Note Guarantor; or (vi) any change in the ownership of the Issuers.
(gc) Each Note Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Guaranteed Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Indenture (Elan Corp PLC), Indenture (Elan Corp PLC)
Note Guarantees. (a) Subject to the provisions of this Section 10Article Twelve, each Guarantor hereby fullyjointly and severally, unconditionally and irrevocably guaranteesguarantees the Notes and obligations of the Issuer hereunder and thereunder, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder of a Note authenticated and delivered by the Notes Trustee, and to the Trustee the due for itself and punctual payment on behalf of such Holder, that: (1) the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes will be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemptionby acceleration or otherwise (including the amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Law), upon accelerationtogether with interest on the overdue principal, upon tender for repayment at the option of if any, and interest on any Holder or otherwiseoverdue interest, according to the terms thereof and of this Indenture extent lawful, and all other obligations of the Company with respect Issuer to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations thereunder will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
thereof; and (d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b2) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; , subject, however, in the case of clauses (c1) any rescissionand (2) above, waiverto the limitation set forth in Section 12.04 hereof. Each Guarantor hereby agrees (to the extent permitted by applicable law) that its obligations hereunder shall be unconditional, amendment or modification of any irrespective of the terms validity, regularity or provisions enforceability of the Notes or this Indenture, the Notes absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the Issuer, any action to enforce the same or any other agreement; circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives (dto the extent permitted by law) the release benefits of diligence, presentment, demand for payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer or any other Person, protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note, this Indenture and such Note Guarantee. Each Guarantor acknowledges that the Note Guarantee is a guarantee of payment, performance and compliance when due and not of collection. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal (or premium, if any) or interest on such Note or in payment of any security held other obligations hereunder, whether at its Stated Maturity, by any acceleration, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of itself or on behalf of, or by, the Holder for of such Note, subject to the Guarantor Obligations; (e) terms and conditions set forth in this Indenture, directly against each of the failure of any Holder Guarantors to exercise any right enforce such Guarantor’s Note Guarantee without first proceeding against the Issuer 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) . Each Guarantor agrees that its if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the Maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holder, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders. If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or any Guarantor, any amount paid by any of them to the Trustee or such Holder, the Note Guarantee herein of each of the Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor further agrees that, as between each Guarantor, on the one hand, and the Holders and the Trustee on the other hand, (1) subject to this Article Twelve, the Maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the purposes of the Note Guarantee of such Guarantor notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any acceleration of such obligation as provided in Article Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purpose of the Note Guarantee of such Guarantor. Each Note Guarantee shall remain in full force and effect until payment in full and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note Guarantee herein shall Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time paymentpayment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes, whether as a “voidable preference”, “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, of principal ofis rescinded, premiumreduced, if anyrestored or returned, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cashNotes shall, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the fullest extent not prohibited permitted by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, be reinstated and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable deemed reduced only by such Guarantor for the purposes of this Note Guaranteeamount paid and not so rescinded, reduced, restored or returned.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Indenture (Ww International, Inc.), Indenture (Weight Watchers International Inc)
Note Guarantees. (ai) Subject to this Article X, the provisions of this Section 10Intercreditor Agreement and the ABL Intercreditor Agreement, each Guarantor hereby fully, unconditionally and irrevocably guaranteesGuarantor, as primary obligor and not merely as a surety, jointly and severally, unconditionally, on a joint senior basis and several basissubject to any limitations set out in any supplemental indenture, guarantees to each Holder of a Note authenticated and delivered by the Trustee (or the Authenticating Agent), to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes and or the Trustee the due and punctual payment obligations of the Issuers hereunder or thereunder, that:
A. the principal of (of, Additional Amounts and premium, if any) , and interest (includingon, the Notes will be promptly paid in case of defaultfull when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal andof and interest, to the extent permitted by applicable law, on overdue interest Additional Amounts and including any additional interest required to be paid according to the terms of the Notes)premium, if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that and all other obligations of the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest Issuers to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes Holders or the Guarantor Obligations.Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise▇. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in ▇▇ case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any of the terms amount so guaranteed or provisions of this Indentureany performance so guaranteed for whatever reason, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force Guarantors will be jointly and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company severally obligated to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.same
Appears in 2 contracts
Sources: Indenture (Ferroglobe PLC), Indenture (Ferroglobe PLC)
Note Guarantees. (a) Subject Pursuant to the provisions of this Section 10Note Guarantees, each Guarantor the Subsidiary Guarantors hereby fully, fully and unconditionally and irrevocably guarantees, as primary obligor and not merely as suretyguarantee, on a an unsecured, senior, joint and several basis, to each Holder of the Notes and to the Trustee and its successors and assign on behalf of each Holder, the due and punctual full payment of the principal of (and of, premium, if any) , and interest (includingon, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other monetary obligations of the Company under this Indenture and the Notes (including obligations to the Trustee) with respect to the Notes to any Holder or each Note authenticated and delivered by the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally its agent pursuant to and in right of payment accordance with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligationsthis Indenture, in which case accordance with the obligations terms of the this Indenture. The Subsidiary Guarantors under further agree that the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, the Subsidiary Guarantors and that it will the Subsidiary Guarantors shall remain bound under this Section 10.01 Article 10 notwithstanding any extension or renewal of any Guarantor ObligationNote Guarantee. All payments under such Note Guarantee shall be made in U.S. dollars.
(fb) Each Guarantor waives presentation toThe Subsidiary Guarantors hereby agree that their obligations hereunder shall be as if they were principal debtor and not merely surety, unaffected by, and irrespective of, any validity, irregularity or unenforceability of any Note or this Indenture, any failure to enforce the provisions of any Note or this Indenture, any waiver, modification or indulgence granted to the Company with respect thereto by the Holders or the Trustee, or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor (except payment in full); provided, however, that, notwithstanding the foregoing, no such waiver, modification, indulgence or circumstance shall without the written consent of the Subsidiary Guarantors increase the principal amount of a Note or the interest rate thereon or change the currency of payment with respect to any Note, or alter the Stated Maturity thereof. The Subsidiary Guarantors hereby waive diligence, presentment, demand of payment from and protest to payment, filing of claims with a court in the Company event of any merger or bankruptcy of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives Company, any right to require that the Trustee pursue or exhaust its legal or equitable remedies against the Company prior to exercising its rights under the Note Guarantee (including, for the avoidance of doubt, any resort be had by right which the Subsidiary Guarantors may have to require the seizure and sale of the assets of the Company to satisfy the outstanding principal of, interest on or any Holder other amount payable under each Note prior to recourse against the Subsidiary Guarantors or their assets), protest or notice with respect to any security held for payment of Note or the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromiseIndebtedness evidenced thereby and all demands whatsoever, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of covenant that the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein Note Guarantee shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 respect to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until except by payment in full of all the Guarantor Obligations principal thereof and interest thereon or such Guarantor is released from its Note Guarantee as otherwise provided in compliance with Section 5.01 or Section 8.01 hereofthis Indenture, including Sections 10.3 and 10.5. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if If at any time payment, or any part thereof, payment of principal of, premium, if any, or interest interest, if any, on any of the Guarantor Obligations such Note is rescinded or must be otherwise be restored by any Holder or returned upon the insolvency, bankruptcy or reorganization of the Company or otherwise, the Subsidiary Guarantors’ obligations hereunder with respect to such payment shall be reinstated as of the date of such rescission, restoration or returns as though such payment had become due but had not been made at such times.
(jc) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor The Subsidiary Guarantors also agrees agree to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or the Holders any Holder in enforcing any rights under this Section 10.0110.1.
Appears in 2 contracts
Sources: Indenture (Sealed Air Corp/De), Indenture (Sealed Air Corp/De)
Note Guarantees. (a) Subject to this Article 11, the provisions of this Section 10Intercreditor Agreement, any Additional Intercreditor Agreement and the Agreed Security Principles, each Guarantor hereby fullyof the Guarantors hereby, jointly and severally, irrevocably and unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, 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 or the Trustee the due and punctual payment obligations of the Issuer hereunder or thereunder (such Guarantee, a “Note Guarantee”), that:
(1) the principal of (and premiumof, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)premium on, if any, interest and Additional Amounts, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium on, if any, interest and Additional Amounts, if any, on, the Notes, when and as the same shall become due and payableif lawful, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect Issuer to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that thereunder will be promptly paid in full or performed, all in accordance with the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, terms hereof and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.thereof; and
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewalextension, whether at Stated Maturitystated maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when 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. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) Subject to this Article 11, the Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the terms validity, regularity or provisions enforceability of the Notes or this Indenture, the Notes 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 Issuer, any action to enforce the same or any other agreement; (d) 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 release event of any security held by any Holder for insolvency or bankruptcy of the Guarantor Obligations; (e) the failure of any Holder to exercise Issuer, any right or remedy to require a proceeding first against any other Guarantor; (f) any change in the ownership of the Company; (g) any defaultIssuer, failure or delayprotest, willful or otherwise, in the notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged except by complete performance of the Guarantor Obligations or (h) any other act or thing or omission or delay to do any other act or thing which may or might obligations contained in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equityNotes and this Indenture.
(ic) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid by either to the Trustee or the Security Agent or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) Each Guarantor agrees that its Note Guarantee herein shall remain it will not be entitled to any right of subrogation in full force and effect relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantorthe Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x1) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 hereof for the purposes of its this Note Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y2) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article 6 hereof, such Guarantor Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by such Guarantor the Guarantors for the purposes purpose of this Note Guarantee.
(l) Each . The Guarantors will have the right to seek contribution from any non-paying Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by so long as the Trustee or exercise of such right does not impair the rights of the Holders in enforcing any rights under this Section 10.01the Note Guarantee.
Appears in 2 contracts
Sources: Indenture (Intrum ZRT), Indenture (Intrum ZRT)
Note Guarantees. (a) Subject to the provisions of this Section Article 10, each Guarantor hereby fullyof the Guarantors hereby, jointly and severally, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, 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 or the Trustee the due and punctual payment obligations of the Company hereunder or thereunder, that: (a) the principal of (and premiumof, if any) premium and interest (includingon the Notes shall be promptly paid in full when due, in case of defaultwhether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal andof, to the extent permitted by applicable law, premium and interest on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notesif lawful, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in and the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto Notes shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain promptly paid in full force or performed, all in accordance with the terms of this Indenture and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, ; and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the terms validity, regularity or provisions enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of this Indenture and the Notes, the recovery of any judgment against the Company, any action to enforce the same or any other agreement; (d) the release circumstance which might otherwise constitute a legal or equitable discharge or defense of any security held by any Holder for the a Guarantor. Each Guarantor Obligations; (e) the failure hereby waives diligence, presentment, demand of any Holder to exercise any right or remedy against any other Guarantor; (f) any change payment, filing of claims with a court in the ownership event of insolvency or bankruptcy of the Company; (g) , any defaultright to require a proceeding first against the Company, failure or delayprotest, willful or otherwise, in notice and all demands whatsoever and covenant that the Note Guarantees shall not be discharged except by complete performance of the Guarantor Obligations obligations contained in the Notes and this Indenture. The Notes also shall be guaranteed in the future as required by Section 4.14. If any Holder or (h) the Trustee is required by any court or otherwise to return to the Company or Guarantors, or any Custodian, Trustee, liquidator or other act similar official acting in relation to the Company or thing any of the Guarantors, any amount paid by either to the Trustee or omission or delay such Holder, these Guarantees, to do any other act or thing which may or might the extent theretofore discharged, shall be reinstated in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) full force and effect. Each Guarantor agrees that its Note Guarantee herein it shall remain not be entitled to any right of subrogation in full force and effect relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantorthe Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 hereof for the purposes of its these Note Guarantee hereinGuarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article 6 hereof, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor the Guarantors for the purposes purpose of this these Note Guarantee.
(l) Each Guarantees. The Guarantors shall have the right to seek contribution from any non-paying Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by so long as the Trustee or exercise of such right does not impair the rights of the Holders in enforcing any rights under this Section 10.01these Note Guarantees.
Appears in 2 contracts
Note Guarantees. (a) Subject to Section 8.04, each of the provisions Guarantors hereby, jointly and severally, unconditionally guarantees to the Lender and its successors and assigns, irrespective of the validity and enforceability of this Section 10Agreement, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, to each Holder of the Notes and the Trustee obligations of the due Borrower hereunder and punctual payment of thereunder, that: (a) the principal of (and premiumthe interest on the Notes will be promptly paid in full when due, if any) subject to any applicable grace period, whether at maturity, by acceleration, redemption or otherwise, and interest (including, in case of default, on the overdue principal and interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)interest, if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other payment obligations of the Company with respect Borrower to the Notes to any Holder or the Trustee Lender hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations thereunder will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain promptly paid in full force and effect notwithstanding performed, all in accordance with the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, terms hereof and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from thereof; and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 subject to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become dueapplicable grace period, whether at stated maturity, by acceleration, by redemption or otherwise. An Event of Default under this Agreement or the Notes shall constitute an event of default under the Note Guarantees, each and shall entitle the Lender to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the obligations of the Borrower. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Agreement, the absence of any action to enforce the same, any waiver or consent by the Lender with respect to any provisions hereof or thereof, the recovery of any judgment against the Borrower, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. The parties agree that the Note Guarantees are guarantees of payment and not of collection. Each Guarantor hereby promises waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Borrower, any right to require a proceeding first against the Borrower, protest, notice and willall demands whatsoever and covenants that the Note Guarantees will not be discharged except by complete performance of the obligations contained in the Notes and this Agreement. If the Lender is required by any court or otherwise to return to the Borrower, upon receipt of written demand by the Trustee, forthwith payGuarantors, or cause liquidator or other similar official acting in relation to be paideither the Borrower or the Guarantors, in cashany amount paid to the Lender, the Note Guarantees, to the Holders or the Trustee on behalf 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 the Holders an amount equal subrogation in relation to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing Lender in respect of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) obligations guaranteed hereby. Each Guarantor further agrees that, as between such Guarantorthe Guarantors, on the one hand, and the HoldersLender, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article V for the purposes of its the Note Guarantee hereinGuarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article V, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor the Guarantors for the purposes purpose of this the Note GuaranteeGuarantees. 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 Lender under the Note Guarantees.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Credit Agreement (J Crew Group Inc), Credit Agreement (J Crew Group Inc)
Note Guarantees. (a) Subject Each of the Note Guarantors, jointly and severally, hereby unconditionally Guarantees (and subject in each case to the provisions Agreed Guarantee Principles set forth in any notation of this Note Guarantee, supplemental indenture, or as contemplated by Section 10, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, 4.15(b) hereof) 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 or the Trustee obligations of the Company hereunder or thereunder that: (i) the due and punctual payment of principal, premium and interest on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, (ii) the due and punctual payment of interest on the overdue principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notesif lawful, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to promptly paid in full or performed, all in accordance with the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from itterms hereof and thereof, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (biii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration pursuant to Section 6.2 hereof or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Note Guarantors shall be jointly and severally obligated to pay the same immediately. Each Note Guarantor shall agree that this is a Guarantee of payment and not a Guarantee of collection.
(b) Each of the terms Note Guarantors hereby agrees that its obligations with regard to its Guarantee shall be joint and several, unconditional, irrespective of the validity or provisions enforceability of the Notes or the obligations of the Company under this Indenture, the absence of any action to enforce the same, the recovery of any judgment against the Company or any other obligor with respect to this Indenture, the Notes or the obligations of the Company under this Indenture or the Notes, any action to enforce the same or any other agreement; circumstances (dother than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Note Guarantor. Each Note Guarantor further, to the release extent permitted by law, hereby waives and relinquishes all claims, rights and remedies accorded by applicable law to guarantors and agrees not to assert or take advantage of any such claims, rights or remedies, including but not limited to: (i) any right to require any of the Trustee, the Holders or the Company (each a “Benefited Party”), as a condition of payment or performance by such Note Guarantor, to (A) proceed against the Company, any other guarantor (including any other Note Guarantor) of the obligations under the Note Guarantees or any other person, (B) proceed against or exhaust any security held by from the Company, any Holder for such other guarantor or any other person, (C) proceed against or have resort to any balance of any deposit account or credit on the Guarantor Obligationsbooks of any Benefited Party in favor of the Company or any other person, or (D) pursue any other remedy in the power of any Benefited Party whatsoever; (eii) any defense arising by reason of the failure incapacity, lack of authority or any Holder to exercise disability or other defense of the Company including any right defense based on or remedy against arising out of the lack of validity or the unenforceability of the obligations under the Note Guarantees or any agreement or instrument relating thereto or by reason of the cessation of the liability of the Company from any cause other Guarantorthan payment in full of the obligations under the Note Guarantees; (fiii) any change defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (iv) any defense based upon any Benefited Party’s errors or omissions in the ownership administration of the Companyobligations under the Note Guarantees, except behavior which amounts to bad faith; (gv)
(A) any defaultprinciples or provisions of law, failure or delay, willful statutory or otherwise, which are or might be in conflict with the performance terms of the Guarantor Obligations Note Guarantees and any legal 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 equitable discharge of such Note Guarantor’s obligations hereunder and under its Note Guarantee, (B) the benefit of any statute of limitations affecting such Note Guarantor’s liability hereunder and under its Note Guarantee or the enforcement hereof and thereof, (C) any rights to set-offs, recoupments and counterclaims and (D) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (vi) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Note Guarantees, notices of default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification of the obligations under the Note Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (vii) to the extent permitted under applicable law, the benefits of any “One Action” rule; and (viii) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the Note Guarantees. Except as set forth in Section 10.5 hereof, each Note Guarantor as a matter of law or equity.
(i) Each Guarantor agrees covenants that its Note Guarantee herein shall remain not be discharged except by complete performance of the obligations contained in its Note Guarantee and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Note Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Note Guarantors, any amount paid to either the Trustee or such Holder, any Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect effect.
(d) Each Note Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Note Guarantor shall further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees agree that, as between such Guarantorthe Note Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (xi) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Section 6.2 hereof for the purposes of its Note Guarantee hereinany Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby and (yii) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Section 6.2 hereof, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor the Note Guarantors for the purposes purpose of this any such Guarantee. The Note Guarantors shall have the right to seek contribution from any non-paying Note Guarantor so long as the exercise of such right does not impair the rights of the Holders under the applicable Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Indenture (Bausch Health Companies Inc.), Indenture (Bausch Health Companies Inc.)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Note Guarantor hereby fullyjointly and severally, irrevocably and unconditionally and irrevocably guarantees, on a senior secured basis, as a primary obligor and not merely as a surety, on a joint and several basis, to each Holder of the Notes and Holder, to the Trustee and to the due Priority Lien Collateral Trustee and its successors and assigns (i) the performance and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder by acceleration or otherwise, according to of all obligations of the terms thereof Issuer under this Indenture, the Notes and the Priority Lien Security Documents, whether for payment of principal of premium, if any, or interest on the Notes and all other monetary obligations of the Issuer under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company with respect to Issuer whether for fees, expenses, indemnification or other amounts owed by the Issuer under this Indenture, the Notes to any Holder or and the Trustee hereunder or thereunderPriority Lien Security Documents (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Note Guarantor further agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from itany Note Guarantor, and that it will each Note Guarantor shall remain bound under this Section 10.01 Article XII notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(fb) Each Note Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guarantor Guaranteed Obligations and also waives notice of protest for nonpayment. Each Note Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Note Guarantor hereunder shall not be affected by (i) the failure of any Holder, the Trustee or the Priority Lien Collateral Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes, the Priority Lien Security Documents or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes, the Priority Lien Security Documents or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, the Priority Lien Security Documents or any other agreement; (iv) the release of any security held by any Holder, the Trustee or the Priority Lien Collateral Trustee for the Guaranteed Obligations or each Subsidiary Guarantor; (v) the failure of any Holder, the Trustee or the Priority Lien Collateral Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of each Subsidiary Guarantor, except as provided in Section 12.02(b). Each Note Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Note Guarantors such that such Note Guarantor’s obligations would be less than the full amount claimed.
(gc) Each Note 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 such Note Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Note Guarantor hereunder. Each Note 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 such Note Guarantor.
(d) Each Note Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment 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 Holder, the Trustee or the Priority Lien Collateral Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(he) The Note Guarantee of each Note Guarantor is, to the extent and in the manner set forth in Article XII, equal in right of payment to all existing and future Priority Lien Obligations and all other senior Indebtedness of such Note Guarantor (including the ABL Lien Obligations), senior in right of payment to all existing and future subordinated Indebtedness of such Note Guarantor.
(f) Except as expressly set forth in Section 10.04Sections 8.01(b), 12.02 and 12.06, the obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)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 Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations obligations of each Note Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder Holder, the Trustee or the Priority Lien Collateral 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 Notes, the Priority Lien Security Documents or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturityagreement, by acceleration or otherwise; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations obligations, or (h) 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 Note Guarantor or would otherwise operate as a discharge of such any Note Guarantor as a matter of law or equity.
(ig) Each Note Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofGuaranteed Obligations. Each Note Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstatedreinstated (together with any security interest securing such Subsidiary Guarantee), as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder Holder, the Trustee or the Priority Lien Collateral Trustee upon the bankruptcy or reorganization of the Company Issuer or such Note Guarantor or otherwise.
(jh) In furtherance of the foregoing and not in limitation of any other right which any Holder Holder, the Trustee or the Priority Lien Collateral Trustee has at law or in equity against any Note Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or interest on any of the Guarantor Obligations 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 Note Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders Holders, the Trustee or the Priority Lien Collateral Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating Issuer to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding)Holders, the Trustee and the Priority Lien Collateral Trustee.
(ki) Each Note 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 Note Guarantor further agrees that, as between such Guarantorit, on the one hand, and the Holders, the Trustee and the Priority Lien Collateral Trustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI for the purposes of its the Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article VI, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such the Note Guarantor for the purposes of this Note GuaranteeSection 12.01.
(lj) Each Note Guarantor also agrees agree to pay any and all fees, costs and expenses (including reasonable out-of-pocket attorneys’ fees and expenses) incurred by the Trustee, the Priority Lien Collateral Trustee or the Holders any Holder in enforcing any rights under this Section 10.0112.01.
(k) Upon request of the Trustee or the Priority Lien Collateral Trustee, each Note 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.
Appears in 2 contracts
Sources: Indenture (Coronado Global Resources Inc.), Indenture (Coronado Global Resources Inc.)
Note Guarantees. (a) Subject The Guarantors, either by execution of this Indenture or a Supplemental Indenture, fully and, subject to the provisions of limitations on the effectiveness and enforceability set forth in this Section 10Indenture or such Supplemental Indenture, each Guarantor hereby fullyas applicable, unconditionally and irrevocably guarantees, as primary obligor and not merely as suretyguarantee, on a joint and several basis, basis to each Holder of the Notes and to the Trustee and its successors and assigns on behalf of each Holder, the due and punctual full payment of the principal of (and of, premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)interest, if any, on and Additional Amounts, if any, on, and all other monetary obligations of the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of Issuer under this Indenture and all other the Notes (including obligations of to the Company Trustee and the Security Agent and the obligations to pay Additional Amounts, if any) with respect to the Notes to any Holder or to, each Note authenticated and delivered by the Trustee hereunder or thereunderits agent pursuant to and in accordance with this Indenture, in accordance with the terms of this Indenture. Each Guarantor agrees The Guarantors further agree that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, the Guarantors and that it will the Guarantors shall remain bound under this Section 10.01 Article Ten notwithstanding any extension or renewal of any Guarantor Note Obligation. All payments under each Note Guarantee will be made in U.S. dollars.
(fb) Each Guarantor waives presentation toThe Guarantors hereby agree that their obligations hereunder shall be as if they were each principal debtor and not merely surety, unaffected by, and irrespective of, any invalidity, irregularity or unenforceability of any Note or this Indenture, any failure to enforce the provisions of any Note or this Indenture, any waiver, modification or indulgence granted to the Issuer with respect thereto by the Holders or the Trustee, or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor (except payment in full); provided that notwithstanding the foregoing, no such waiver, modification, indulgence or circumstance shall, without the written consent of the Guarantors, increase the principal amount of a Note or the interest rate thereon or change the currency of payment with respect to any Note, or alter the Stated Maturity thereof. The Guarantors hereby waive diligence, presentment, demand of payment from and protest to payment, filing of claims with a court in the Company event of any merger or bankruptcy of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives Issuer, any right to require that the Trustee pursue or exhaust its legal or equitable remedies against the Issuer prior to exercising its rights under a Note Guarantee (including, for the avoidance of doubt, any resort be had by any Holder right which a Guarantor may have to any security held for payment require the seizure and sale of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment assets of the Issuer to satisfy the outstanding principal of, interest on, or any other amount payable under, each Note prior to recourse against such Guarantor Obligations in fullor its assets), including protest or notice with respect to, any claim of waiver, release, surrender, alteration Note or compromisethe Indebtedness evidenced thereby and all demands whatsoever, 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall covenant that their Note Guarantee will not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 respect to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until except by payment in full of all the Guarantor Obligations principal thereof and interest thereon or such Guarantor is released from its Note Guarantee as otherwise provided in compliance with Section 5.01 or Section 8.01 hereofthis Indenture, including Section 10.04. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if If at any time payment, or any part thereof, payment of principal of, premium, if any, interest, if any, or interest on any of the Guarantor Obligations Additional Amounts, if any, on, such Note is rescinded or must be otherwise be restored by any Holder or returned upon the insolvency, bankruptcy or reorganization of the Company Issuer, the Guarantors’ obligations hereunder with respect to such payment shall be reinstated as of the date of such rescission, restoration or otherwisereturns as though such payment had become due but had not been made at such times.
(jc) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor The Guarantors also agrees agree to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or the Holders any Holder in enforcing any rights under this Section Section 10.01.
Appears in 2 contracts
Sources: Indenture (Norwegian Cruise Line Holdings Ltd.), Indenture (Norwegian Cruise Line Holdings Ltd.)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Guarantor hereby jointly and severally, fully, unconditionally and irrevocably guaranteesguarantees the Notes and obligations of the Issuer hereunder and thereunder, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder of the Notes a Note authenticated and delivered by the Trustee and to the due Trustee and punctual payment its successors and assigns, on behalf of such Holder, that: (i) the principal of (and premium, if any) any and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes shall be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender call for repayment at redemption or otherwise (including, without limitation, the option amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Law), together with interest on the overdue principal, if any, and interest on any Holder or otherwiseoverdue interest, according to the terms thereof and of this Indenture extent lawful, and all other obligations of the Company with respect Issuer to the Notes to any Holder Holders, the Trustee or the Collateral Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto thereunder shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
thereof; and (d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification of any . Each of the terms Note Guarantees shall be a guarantee of payment and not of collection.
(b) Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or provisions enforceability of the Notes or this Indenture, the Notes 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 agreement; circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(dc) Each Guarantor hereby waives the release benefits of any security held by any Holder diligence, presentment, demand for payment, filing of claims with a court in the Guarantor Obligations; (e) event of insolvency or bankruptcy of the failure of any Holder to exercise Company, any right to require a proceeding first against the Company or remedy any other Person, protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note and such Note Guarantee or as provided for in this Indenture. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal or premium, if any or interest on such Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee and/or the Collateral Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce such Guarantor’s Note Guarantee without first proceeding against the Company or 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) . Each Guarantor agrees that its if, after the occurrence and during the continuance of an Event of Default, the Trustee, the Collateral Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee and/or the Collateral Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee, the Collateral Trustee or any of the Holders.
(d) If any Holder, the Trustee or the Collateral Trustee is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or any Guarantor, any amount paid by any of them to the Trustee, the Collateral Trustee or such Holder, the Note Guarantee herein of each of the Guarantors, to the extent theretofore discharged, shall remain be reinstated in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofeffect. Each Guarantor further agrees that its Note Guarantee herein This paragraph (d) shall continue to remain effective notwithstanding any contrary action which may be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand taken by the Trustee, forthwith pay, the Collateral Trustee or cause any Holder in reliance upon such amount required to be paid, in cash, to returned. This paragraph (d) shall survive the Holders or the Trustee on behalf termination of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding)this Indenture.
(ke) Each Guarantor further agrees that, as between such each Guarantor, on the one hand, and the Holders, the Trustee and the Collateral Trustee, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI hereof for the purposes of its the Note Guarantee hereinof such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article VI hereof, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Guarantor for the purposes purpose of this the Note GuaranteeGuarantee of such Guarantor.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Indenture (Triumph Group Inc), Indenture (Triumph Group Inc)
Note Guarantees. (a) Subject to the provisions of this Section 101204 hereof, each Guarantor hereby jointly and severally, fully, unconditionally and irrevocably guaranteesguarantees the Notes and obligations of the Company hereunder and thereunder, as primary obligor and not merely as suretythe obligations of each other Guarantor hereunder and thereunder, on a joint and several basis, guarantees to each Holder of the Notes a Note authenticated and delivered by the Trustee to the due and punctual payment Trustee on behalf of such Holder, that: (a) the principal of (and premiumpremium and Additional Interest, if any) and interest (including, in case of default, the interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes will be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender call for repayment at redemption or otherwise (including, without limitation, the option amount that would become due but for the operation of the automatic stay for the operation of the automatic stay under Section 362(a) of the Federal Bankruptcy Code), together with interest on the overdue principal, if any, and interest on any Holder or otherwiseoverdue interest, according to the terms thereof and of this Indenture extent lawful, and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that thereunder will be paid in full or performed, all in accordance with the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtednessterms hereof and thereof, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification of any . Each of the terms Note Guarantees shall be a guarantee of payment and not of collection. Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or provisions enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other agreement; (d) circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives the release benefits of any security held by any Holder diligence, presentment, demand for payment, filing of claims with a court in the Guarantor Obligations; (e) event of insolvency or bankruptcy of the failure of any Holder to exercise Company, any right to require a proceeding first against the Company or remedy any other Person, protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Guarantor will not be discharged as to any Note except by complete performance of the obligations contained in such Note and such Note Guarantee or as provided for in this Indenture. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal (or premium or Additional Interest, if any) or interest on such Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce such Guarantor's Note Guarantee without first proceeding against the Company or 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) . Each Guarantor agrees that its Note Guarantee herein shall remain in full force if, after the occurrence and effect until payment in full during the continuance of all an Event of Default, the Guarantor Obligations Trustee or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored Holders are prevented by any Holder upon applicable law from exercising their respective rights to accelerate the bankruptcy or reorganization maturity of the Company Notes, to collect interest on the Notes, or otherwise.
(j) In furtherance of the foregoing and not in limitation of to enforce or exercise any other right which any Holder has at law or in equity against any remedy with respect to the Notes, such Guarantor by virtue hereofwill pay to the Trustee for the account of the Holders, upon demand therefor, the failure of amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Company to pay Trustee or any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders Holders. If any Holder or the Trustee on behalf of the Holders an amount equal is required by any court or otherwise to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating return to the Company or any Guarantor whether Guarantor, or not a claim for postfiling any custodian, trustee, liquidator or post-petition interest is allowed other similar official acting in relation to either the Company or any Guarantor, any amount paid by any of them to the Trustee or such proceeding).
(k) Holder, the Note Guarantee of each of the Guarantors, to the extent theretofore at, as discharged, shall be reinstated in full force and effect. Each Guarantor further agrees that, as between such each Guarantor, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x1) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article V hereof for the purposes of its the Note Guarantee hereinof such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y2) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article V hereof, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Guarantor for the purposes purpose of this the Note GuaranteeGuarantee of such Guarantor.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Indenture (380 Development, LLC), Indenture (380 Development, LLC)
Note Guarantees. (a) Subject to the provisions of this Section 10Each Guarantor hereby, each Guarantor hereby jointly and severally, fully, unconditionally and irrevocably guaranteesguarantees the Notes and obligations of the Company hereunder and thereunder, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder of the Notes a Note authenticated and delivered by the Trustee and to the due and punctual payment Trustee on behalf of such Holder, that: (i) the principal of (and premium, if any) any and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes shall be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender call for repayment at redemption or otherwise (including the option amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), together with interest on the overdue principal, if any, and interest on any Holder or otherwiseoverdue interest, according to the terms thereof and of this Indenture extent lawful, and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto thereunder shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
thereof; and (d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (bii) in case of any extension of time of payment or renewal of any the Notes or of any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification of any . Each of the terms Note Guarantees shall be a guarantee of payment and not of collection.
(b) Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or provisions enforceability of the Notes or this Indenture, the Notes 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 agreement; circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(dc) Each Guarantor hereby waives the release benefits of any security held by any Holder diligence, presentment, demand for payment, filing of claims with a court in the Guarantor Obligations; (e) event of insolvency or bankruptcy of the failure of any Holder to exercise Company, any right to require a proceeding first against the Company or remedy any other Person, protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note and such Note Guarantee or as provided for in this Indenture. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal or premium, if any or interest on such Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce such Guarantor’s Note Guarantee without first proceeding against the Company or 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) . Each Guarantor agrees that its Note Guarantee herein shall remain in full force if, after the occurrence and effect until payment in full during the continuance of all an Event of Default, the Guarantor Obligations Trustee or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored Holders are prevented by any Holder upon applicable law from exercising their respective rights to accelerate the bankruptcy or reorganization maturity of the Company Notes, to collect interest on the Notes, or otherwiseto enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
(jd) In furtherance of the foregoing and not in limitation of any other right which If any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal is required by any court or otherwise to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating return to the Company or any Guarantor whether Guarantor, or not a claim for postfiling any custodian, trustee, liquidator or post-petition interest is allowed other similar official acting in relation to the Company or any Guarantor, any amount paid by any of them to the Trustee or such proceeding)Holder, the Note Guarantee of each of the Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect. This paragraph (d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in reliance upon such amount required to be returned. This paragraph (d) shall survive the termination of this Indenture.
(ke) Each Guarantor further agrees that, as between such each Guarantor, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Section 6.02 for the purposes of its the Note Guarantee hereinof such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Section 6.02, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Guarantor for the purposes purpose of this the Note GuaranteeGuarantee of such Guarantor.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 2 contracts
Sources: Intercreditor Agreement (Babcock & Wilcox Enterprises, Inc.), Indenture (B. Riley Financial, Inc.)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Subsidiary Guarantor hereby fullyjointly and severally, fully and unconditionally guarantees the Notes and irrevocably guaranteesobligations of the Issuers hereunder and thereunder, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder of the Notes a Note authenticated and delivered by the Trustee and to the due and punctual payment of Trustee, that: (i) the principal of (and premium, if any) , and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes shall be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender call for repayment at the option of any Holder redemption or otherwise, according together with interest on the overdue principal, if any, and interest on any overdue interest, to the terms thereof and of this Indenture extent lawful, and all other obligations of the Company with respect Issuers to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto Notes shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
thereof; and (d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) Each Subsidiary Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the terms validity, regularity or provisions enforceability of the Notes or this Indenture, the Notes 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 Issuers, any action to enforce the same or any other agreement; circumstance which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor.
(dc) Each Subsidiary Guarantor hereby waives the release benefits of diligence, presentment, demand for payment, filing of claims with a court in the event of insolvency or bankruptcy of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder to exercise Issuer, any right to require a proceeding first against the Issuers or remedy against any other Guarantor; (f) Person, protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Subsidiary Guarantor shall not be discharged as to any change in the ownership Note or this Indenture except by complete performance of the Company; (g) any default, failure or delay, willful or otherwiseobligations contained in such Note and this Indenture and such Note Guarantee. Each of the Subsidiary Guarantors hereby agrees that, in the performance event of the Guarantor Obligations or (h) any other act or thing or omission or delay to do any other act or thing which may or might a Default in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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 premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become dueNote, whether at maturityits Stated Maturity, by acceleration, by redemption call for redemption, purchase or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand legal proceedings may be instituted by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Subsidiary Guarantors to enforce each such Subsidiary Guarantor’s Note Guarantee without first proceeding against the Issuers or any other Subsidiary Guarantor. Each Subsidiary Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders an amount equal are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the sum Notes, such Subsidiary Guarantor shall pay to the Trustee for the account of (i) the unpaid Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of such Guarantor Obligations then the Holders and any other amounts due and owing and to the Trustee under this Indenture.
(iid) accrued and unpaid interest on If any Holder or the Trustee is required by any court or otherwise to return to any Issuer or any Subsidiary Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to any Issuer or any Subsidiary Guarantor, any amount paid by any of them to the Trustee or such Guarantor Obligations then due and owing (but only Holder, the Note Guarantee of each of the Subsidiary Guarantors, to the extent not prohibited theretofore discharged, shall be reinstated in full force and effect. This paragraph (d) shall remain effective notwithstanding any contrary action which may be taken by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company Trustee or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed Holder in reliance upon such proceeding)amount required to be returned. This paragraph (d) shall survive the termination of this Indenture.
(ke) Each Subsidiary Guarantor further agrees that, as between such each Subsidiary Guarantor, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI for the purposes of its the Note Guarantee hereinof such Subsidiary Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article VI, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Subsidiary Guarantor for the purposes purpose of this the Note GuaranteeGuarantee of such Subsidiary Guarantor.
(lf) Each Subsidiary Guarantor also agrees to pay any and that makes a payment for distribution under its Note Guarantee is entitled upon payment in full of all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights guaranteed obligations under this Section 10.01Indenture to seek contribution from each other Subsidiary Guarantor in a pro rata amount of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment in accordance with GAAP.
Appears in 2 contracts
Sources: Indenture (American Finance Trust, Inc), Indenture (Global Net Lease, Inc.)
Note Guarantees. (a) Subject to the provisions of this Section Article 10, each Guarantor hereby fully, unconditionally and irrevocably guaranteeshereby, as primary obligor and not merely as a surety, jointly and severally, unconditionally and on a joint and several basis, senior basis guarantees to each Holder authenticated and delivered by the Trustee (or the Authenticating Agent), to the Trustee and the Notes Collateral Agent and their successors and assigns (on behalf of and for the benefit of the Holders, for the purpose of this Article 10, and not in its individual capacity, but solely in its role as representative of the Holders in holding and enforcing the Notes Collateral and the Trustee the due and punctual payment Notes Security Documents), irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (1) the principal of (of, and premium, if any) , and interest (includingon, the Notes will be promptly paid in case of defaultfull when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal andof and interest, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)premium, if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that and all other obligations of the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest Issuer to the Company of any of Holders or the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under Trustee or the Notes Collateral Agent hereunder or thereunder will be promptly paid in full or performed, all in accordance with the Guarantor Obligations.
terms hereof and thereof; and (g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any of the terms amount so guaranteed or provisions of this Indentureany performance so guaranteed for whatever reason, the Notes or any other agreement; (d) Guarantors will be jointly and severally obligated to pay the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) same immediately. Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until this is a guarantee of payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation a guarantee of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding)collection.
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Sources: Indenture (Sothebys)
Note Guarantees. (a) Subject Notwithstanding any provision of this ARTICLE X to the contrary, the provisions of this ARTICLE X will be applicable only to, and inure solely to the benefit of, the Notes of any Series designated, pursuant to Section 102.02(t), as entitled to the benefits of the Note Guarantee of each Guarantor identified in such designation.
(b) Subject to this ARTICLE X, each Guarantor hereby fullyof the Guarantors hereby, jointly and severally, unconditionally guarantees to the Holders of each Series of Notes authenticated and irrevocably guaranteesdelivered by the Trustee and to the Trustee and its successors and assigns, as primary obligor and not merely as surety, on a joint and several basis, to each Holder irrespective of the validity and enforceability of this Indenture, the Notes and or the Trustee the due and punctual payment obligations of the Company hereunder or thereunder, that:
(1) the principal of (and of, premium, if any) , and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, Notes of such Series will be promptly paid in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender for repayment at the option of any Holder redemption or otherwise, according to and interest on the terms thereof overdue principal of and of this Indenture interest on such Notes, if any, if lawful, and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that thereunder will be promptly paid in full or performed, all in accordance with the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, terms hereof and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.thereof; and
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b2) in case of any extension of time of payment or renewal of any such Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration acceleration, redemption or otherwise; . Failing payment when 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. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(c) any rescissionThe Guarantors hereby agree that their obligations hereunder are unconditional, waiver, amendment or modification of any irrespective of the terms validity, regularity or provisions enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other agreement; 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 covenant that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.
(d) If any Holder or the release of any security held Trustee is required by any Holder for the Guarantor Obligations; (e) the failure of any Holder court or otherwise to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of return to the Company; (g) , the Guarantors or any defaultcustodian, failure trustee, liquidator or delayother similar official acting in relation to either the Company or the Guarantors, willful any amount paid by either to the Trustee or otherwisesuch Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in the performance of the Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equityfull force and effect.
(ie) Each Guarantor agrees that its Note Guarantee herein shall remain it will not be entitled to any right of subrogation in full force and effect relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantorthe Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x1) the maturity Maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture ARTICLE VI hereof for the purposes of its this Note Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y2) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in ARTICLE VI hereof, such Guarantor Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by such Guarantor the Guarantors for the purposes purpose of this Note Guarantee.
(l) Each . The Guarantors will have the right to seek contribution from any non-paying Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by so long as the Trustee or exercise of such right does not impair the rights of the Holders in enforcing any rights under this Section 10.01the Note Guarantee.
Appears in 1 contract
Sources: Indenture (T-Mobile US, Inc.)
Note Guarantees. (a) Subject to the provisions The Company shall not cause any future wholly owned Domestic Subsidiary, other than a Guarantor or any other Subsidiary with a Consolidated Equity of this Section 10less than $100,000, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basisdirectly or indirectly, to each Holder of the Notes and the Trustee the due and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, become a guarantor or an obligor with respect to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations Indebtedness of the Company or any Subsidiary thereof incurred in the United States unless such Subsidiary (a "Future Guarantor") becomes a Guarantor under this Indenture at the times set forth below except that (i) if such Indebtedness is by its terms Senior Debt, any such assumption, guarantee or other liability of such Subsidiary with respect to such Indebtedness shall be senior to such Subsidiary's Guarantee of the Notes Securities to the same extent as such Senior Debt is senior to the Securities; and (ii) if such Indebtedness is by its terms expressly subordinated to the Securities, any Holder such assumption, guarantee or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness liability of such Guarantor, except Subsidiary with respect to such Indebtedness shall be subordinated to such Subsidiary's Guarantee of the Securities at least to the same extent as such other Indebtedness is subordinate subordinated to the Guarantor ObligationsSecurities; provided, in which case however, that, so long as the obligations Company shall be required by the Registration Rights Agreement to maintain an effective shelf registration statement covering resales by Holders of Securities and the Common Stock issuable upon conversion of Securities, the Company shall not be required to cause any Future Guarantors to become Guarantors until the earlier of such time as (A) the aggregate Consolidated Equity of all such future wholly owned Domestic Subsidiaries who have not become Guarantors equals or exceeds $50.0 million and (B) twelve months shall have elapsed since the Company last caused Future Guarantors to become Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claimsthis Indenture.
(b) To evidence its Note Guarantee set forth in this Section 10.01Once each fiscal quarter, the Company shall cause each Subsidiary thereof who is to become a Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i5.11(a) hereof, a supplement to (i) execute and deliver to the Note GuaranteeTrustee a supplemental indenture in a form reasonably satisfactory to the Trustee pursuant to which such Subsidiary shall become a party to the Indenture and thereby unconditionally guarantee all of the Company's obligations under the Securities and the Indenture on the terms set forth therein and (ii) deliver to the Trustee an Opinion of Counsel that such supplemental indenture has been duly authorized, substantially in executed and delivered by such Subsidiary of the form attached as Exhibit E hereto shall be executed on behalf Company and constitutes a valid, binding and enforceable obligation of such Guarantor by an Officer of such Guarantor.
Subsidiary (c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations which opinion may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reductioncustomary assumptions and qualifications). Thereafter, limitation, impairment or termination for any reason (other than payment such Subsidiary of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and Company 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed unless released in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; this Indenture) be a Guarantor for all purposes of this Indenture.
(c) Notwithstanding the foregoing, each Guarantee by a Guarantor of the Securities shall provide by its terms that it shall be automatically and unconditionally released and discharged upon (i) any rescissionsale, waiverexchange or transfer, amendment to any Person not an Affiliate of the Company, of all of the Company's Capital Stock in, or modification all or substantially all the assets of, such Guarantor, which transaction is in compliance with the terms of this Indenture and pursuant to which transaction such Guarantor is released from all guarantees, if any, by it of other Indebtedness of the Company or any of the terms its Subsidiaries or provisions of this Indenture, the Notes or any other agreement; (dii) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership holders of the Company; (g) any default, failure or delay, willful or otherwise, in the performance other Indebtedness of the Guarantor Obligations or Company of their guarantee of Indebtedness by such Subsidiary (h) including 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 such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until deemed release upon payment in full of all obligations under such Indebtedness), at such time as (A) no other Indebtedness of the Guarantor Obligations or Company has been guaranteed by such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time paymentSubsidiary, or any part thereof, (B) the holders of principal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization all such other Indebtedness of the Company or otherwise.
another Subsidiary which is guaranteed by such Subsidiary also release their guarantee by such Subsidiary (jincluding any deemed release upon payment in full of all obligations under such Indebtedness) In furtherance or (iii) such Subsidiary ceasing to be a wholly owned Subsidiary of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding)Company.
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Sources: Indenture (United Auto Group Inc)
Note Guarantees. (a) Subject to this Article X, the provisions Parent Guarantor and each Person that becomes a Subsidiary Guarantor, by execution of a supplemental indenture to this Indenture in accordance with Section 104.15, each Guarantor hereby fullyjointly and severally, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, 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 or the Trustee the due and punctual payment obligations of the Company hereunder or thereunder, that: (1) the principal of (and premiumof, premium on, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)Additional Amounts, if any, on the Notes, Notes will be promptly paid in full when and as the same shall become due and payabledue, whether at Stated Maturitystated maturity, upon redemption, upon by acceleration, upon tender for repayment at the option of any Holder redemption or otherwise, according to and interest on the terms thereof overdue principal of and of this Indenture interest on the Notes, if any, if lawful, and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations thereunder will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain promptly paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
thereof; and (d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when 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. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the terms validity, regularity or provisions enforceability of the Notes or this Indenture, the Notes absence of any action to enforce the same, any waiver or consent by any Holder or the Trustee 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 agreement; (d) the release circumstance which might otherwise constitute a legal or equitable discharge or defense of any security held by any Holder for the a Guarantor. Each Guarantor Obligations; (e) the failure hereby waives diligence, presentment, demand of any Holder to exercise any right or remedy against any other Guarantor; (f) any change payment, filing of claims with a court in the ownership event of insolvency or bankruptcy of the Company; , any right to require a proceeding first against the Company, protest, 128 KE 79433857.6
(gc) If any defaultHolder or the Trustee is required by any court or otherwise to return to the Company, failure the Guarantors or delayany custodian, willful trustee, liquidator or otherwiseother similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, each Guarantee, to the extent theretofore discharged, will be reinstated in the performance of the Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equityfull force and effect.
(id) Each Guarantor agrees that its Note Guarantee herein shall remain it will not be entitled to any right of subrogation in full force and effect relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantorthe Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x1) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI for the purposes of its Note Guarantee hereinthis Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y2) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article VI, such Guarantor Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by such Guarantor each of the Guarantors for the purposes purpose of this Note its Guarantee.
(l) Each . The Guarantors will have the right to seek contribution from any nonpaying Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by so long as the Trustee or exercise of such right does not impair the rights of the Holders in enforcing any rights under this Section 10.01the Guarantees.
Appears in 1 contract
Sources: Supplemental Indenture (Altera Infrastructure L.P.)
Note Guarantees. (a) Subject to the provisions of this Section Article 10, each Guarantor hereby fully, unconditionally and irrevocably guaranteesof the Guarantors hereby, as primary obligor and not merely as a surety, jointly and severally, unconditionally and on a joint and several basis, senior basis guarantees to each Holder authenticated and delivered by the Trustee (or the Authenticating Agent), to the Trustee and its successors and assigns and to the Notes Security Agent (on behalf of and for the benefit of the Holders, for the purpose of this Article 10, and not in its individual capacity, but solely in its role as representative of the Holders in holding and enforcing the Notes Collateral and the Trustee the due and punctual payment Notes Security Documents), irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that:
(1) the principal of (of, and premium, if any) , and interest (includingon, the Notes will be promptly paid in case of defaultfull when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal andof and interest, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)premium, if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that and all other obligations of the Guarantor Obligations may Issuer to the Holders or the Trustee or the Notes Security Agent hereunder or thereunder will be extended promptly paid in full or renewedperformed, all in whole or in part, without notice or further assent from it, accordance with the terms hereof and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.thereof; and
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration or otherwise; . Failing payment when 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. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(cb) Each Guarantor hereby agrees that its obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any rescissionaction or any delay or omission to assert any claim or to demand or enforce any remedy hereunder or thereunder, any waiver, amendment surrender, release or modification consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor (other than payment in full of all the Obligations of the terms Issuer hereunder and under the Notes). Each Guarantor hereby waives, to the fullest extent permitted by law, diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture or by release in accordance with the provisions of this Indenture.
(c) If any Holder, the Trustee, or the Notes Security Agent is required by any court or otherwise to return to or for the benefit of the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid by either the Issuer or the Guarantors to the Trustee, the Notes Security Agent, or any other agreement; such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) Until terminated in accordance with Section 10.06 hereof, each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the release Holders in respect of any security held by any Holder obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each 124 Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders, the Notes Security Agent, and the Trustee, on the other hand,
(1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and
(2) 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) will forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor Obligations; so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.
(e) Each Guarantor also agrees to pay any and all costs and expenses (including attorneys’ fees and expenses) incurred by the failure of Trustee or the Notes Security Agent in enforcing any Holder to exercise any right or remedy against any other Guarantor; rights under this Section 10.01.
(f) any change in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note Guarantee herein shall Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time paymentpayment of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment had not been made. In the event that any payment or any part thereof, of principal ofis rescinded, premiumreduced, if anyrestored or returned, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cashNotes shall, to the Holders fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the Trustee on behalf validity, legality, and enforceability of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent remaining provisions shall not prohibited by law) (including interest accruing after the filing of in any petition in bankruptcy way be affected or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding)impaired thereby.
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Sources: Indenture (Altice USA, Inc.)
Note Guarantees. Section 11.01 The Note Guarantee and Future Note Guarantees.
(a) Subject to the provisions of this Section 10Article 11, each Guarantor hereby fullyany and all Guarantors hereby, jointly and severally, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basisguarantee, to each Holder of a Note authenticated and delivered by the Authenticating Agent and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes and or the Trustee the due and punctual payment obligations of the Issuer hereunder or thereunder, that:
(1) the principal of (and premiumof, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)premium on, if any, interest and Additional Amounts, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium on, if any, interest and Additional Amounts, if any, on, the Notes, when and as the same shall become due and payableif lawful, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect Issuer to the Notes to any Holder Holders or the Trustee and the Security Agent hereunder or thereunder. Each Guarantor agrees that thereunder will be promptly paid in full or performed, all in accordance with the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, terms hereof and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.thereof; and
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, any and all Guarantors will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) Subject to this Article 11, any and all Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the terms validity, regularity or provisions enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other agreement; (d) 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 release event of any security held by any Holder for insolvency or bankruptcy of the Guarantor Obligations; (e) the failure of any Holder to exercise Issuer, any right or remedy to require a proceeding first against any other Guarantor; (f) any change in the ownership of the Company; (g) any defaultIssuer, failure or delayprotest, willful or otherwise, in the notice and all demands whatsoever and covenants that this Note Guarantee will not be discharged except by complete performance of the Guarantor Obligations or (h) any other act or thing or omission or delay to do any other act or thing which may or might obligations contained in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equityNotes and this Indenture.
(ic) If any Holder, the Trustee or the Security Agent is required by any court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid by either to the Trustee or the Security Agent or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) Each Guarantor agrees that its Note Guarantee herein shall remain it will not be entitled to any right of subrogation in full force and effect relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantorthe Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x1) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 hereof for the purposes of its this Note Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y2) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article 6 hereof, such Guarantor Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by such Guarantor the Guarantors for the purposes purpose of this Note Guarantee.
(l) Each . The Guarantors will have the right to seek contribution from any non-paying Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by so long as the Trustee or exercise of such right does not impair the rights of the Holders in enforcing any rights under this Section 10.01the Note Guarantee.
Appears in 1 contract
Note Guarantees. (a) Subject If the Issuer or any of its Restricted Subsidiaries acquires or creates any other Domestic Subsidiary or Subsidiaries (other than an Excluded Subsidiary) on or after the date of this Indenture, then each such newly acquired or created Domestic Subsidiary must become a Guarantor and (i) execute a supplemental indenture and (ii) deliver an Opinion of Counsel to the provisions Trustee, in each case, within 30 days of this Section 10the date of such acquisition or creation.
(b) The Issuer will not permit any of its Restricted Subsidiaries (other than the Issuer), each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basisdirectly or indirectly, to each Holder Guarantee or pledge any assets to secure the payment of any Indebtedness of the Issuer or any Subsidiary Guarantor (including, but not limited to, any Indebtedness under any Credit Facility) unless such Restricted Subsidiary is a Guarantor or within 30 days executes and delivers a supplemental indenture providing for the Guarantee of the payment of the Notes and the Trustee the due and punctual payment of the principal of (and premiumby such Restricted Subsidiary, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to which Guarantee shall be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such Subsidiary’s Guarantee of such other IndebtednessIndebtedness if such other Indebtedness is subordinated to the Notes or Note Guarantees, and except for claims of creditors that are mandatorily preferred by lawas applicable, in which case the obligations of the Guarantors under the Note Guarantees will rank junior or pari passu in right of payment to with such claims.
(b) To evidence its Note Subsidiary’s Guarantee set forth of such other Indebtedness in this Section 10.01all other instances. In addition, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the event that any Restricted Subsidiary that is an Excluded Subsidiary ceases to be an Excluded Subsidiary, then such Restricted Subsidiary must become a Guarantor and execute a supplemental indenture and deliver an Opinion of Counsel to the Trustee within 30 days of the date of such event. The form of the Supplemental Indenture is attached as Exhibit F hereto) and, in B and the case form of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form Guarantee is attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.C.
(c) Each Guarantor hereby agrees that its Notwithstanding Section 4.11(a), any Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted may provide by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and its terms that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from be automatically and protest to the Company of any of the Guarantor Obligations unconditionally released and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default discharged under the Notes or the Guarantor Obligationscircumstances described under Section 11.08.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Sources: Indenture (ACCO BRANDS Corp)
Note Guarantees. (a) Subject Pursuant to the provisions of this Section 10Note Guarantees, each Guarantor the Subsidiary Guarantors hereby fully, fully and unconditionally and irrevocably guarantees, as primary obligor and not merely as suretyguarantee, on a an unsecured, senior, joint and several basis, to each Holder of the Notes and to the Trustee and its successors and assigns on behalf of each Holder, the due and punctual full payment of the principal of (and of, premium, if any) , and interest (includingon, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other monetary obligations of the Company under this Indenture and the Notes (including obligations to the Trustee) with respect to the Notes to any Holder or each Note authenticated and delivered by the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally its agent pursuant to and in right of payment accordance with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligationsthis Indenture, in which case accordance with the obligations terms of the this Indenture. The Subsidiary Guarantors under further agree that the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, the Subsidiary Guarantors and that it will the Subsidiary Guarantors shall remain bound under this Section 10.01 Article 10 notwithstanding any extension or renewal of any Guarantor ObligationNote Guarantee. All payments under such Note Guarantee shall be made in U.S. dollars, in the case of the Dollar Notes, and in Euros, in the case of the Euro Notes.
(fb) Each Guarantor waives presentation toThe Subsidiary Guarantors hereby agree that their obligations hereunder shall be as if they were principal debtor and not merely surety, unaffected by, and irrespective of, any validity, irregularity or unenforceability of any Note of either series or this Indenture, any failure to enforce the provisions of any Note of the applicable series or this Indenture, any waiver, modification or indulgence granted to the Company with respect thereto by the Holders or the Trustee, or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor (except payment in full); provided, however, that, notwithstanding the foregoing, no such waiver, modification, indulgence or circumstance shall without the written consent of the Subsidiary Guarantors increase the principal amount of a Note of such series or the interest rate thereon or change the currency of payment with respect to any Note, or alter the Stated Maturity thereof. The Subsidiary Guarantors hereby waive diligence, presentment, demand of payment from and protest to payment, filing of claims with a court in the Company event of any merger or bankruptcy of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives Company, any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy pursue or the commencement of any insolvency, reorganization exhaust its legal or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.equitable remedies
Appears in 1 contract
Sources: Indenture (Sealed Air Corp/De)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Subsidiary Guarantor hereby fullyjointly and severally, fully and unconditionally guarantees the Notes and irrevocably guaranteesobligations of the Company hereunder and thereunder, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder of the Notes a Note authenticated and delivered by the Trustee and to the due and punctual payment of Trustee, that: (i) the principal of (and premium, if any) , and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes shall be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender call for repayment at the option of any Holder redemption or otherwise, according together with interest on the overdue principal, if any, and interest on any overdue interest, to the terms thereof and of this Indenture extent lawful, and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto Notes shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
thereof; and (d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification of any . Each of the terms Note Guarantees shall be a guarantee of payment and not of collection.
(b) Each Subsidiary Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or provisions enforceability of the Notes or this Indenture, the Notes 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 agreement; circumstance which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor.
(dc) Each Subsidiary Guarantor hereby waives the release benefits of any security held by any Holder diligence, presentment, demand for the Guarantor Obligations; (e) the failure payment, filing of any Holder to exercise any right or remedy against any other Guarantor; (f) any change claims with a court in the ownership event of insolvency or bankruptcy of the Company; (g) , any defaultright to require a proceeding first against the Company or any other Person, failure protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Subsidiary Guarantor shall not be discharged as to any Note or delay, willful or otherwisethis Indenture except by complete performance of the obligations contained in such Note and this Indenture and such Note Guarantee. Each of the Subsidiary Guarantors hereby agrees that, in the performance event of the Guarantor Obligations or (h) any other act or thing or omission or delay to do any other act or thing which may or might a Default in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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 premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become dueNote, whether at maturityits Stated Maturity, by acceleration, by redemption call for redemption, purchase or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand legal proceedings may be instituted by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Subsidiary Guarantors to enforce each such Subsidiary Guarantor’s Note Guarantee without first proceeding against the Company or any other Subsidiary Guarantor. Each Subsidiary Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders an amount equal are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the sum Notes, such Subsidiary Guarantor shall pay to the Trustee for the account of (i) the unpaid Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of such Guarantor Obligations then the Holders and any other amounts due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by lawTrustee under this Indenture.
(d) (including interest accruing after the filing of If any petition in bankruptcy Holder or the commencement of Trustee is required by any insolvency, reorganization court or like proceeding relating otherwise to return to the Company or any Guarantor whether Subsidiary Guarantor, or not a claim for postfiling any custodian, Trustee, liquidator or post-petition interest is allowed other similar official acting in relation to the Company or any Subsidiary Guarantor, any amount paid by any of them to the Trustee or such proceeding)Holder, the Note Guarantee of each of the Subsidiary Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect. This paragraph (d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in reliance upon such amount required to be returned. This paragraph (d) shall survive the termination of this Indenture.
(ke) Each Subsidiary Guarantor further agrees that, as between such each Subsidiary Guarantor, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI for the purposes of its the Note Guarantee hereinof such Subsidiary Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article VI, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Subsidiary Guarantor for the purposes purpose of this the Note GuaranteeGuarantee of such Subsidiary Guarantor.
(lf) Each Subsidiary Guarantor also agrees to pay any and that makes a payment for distribution under its Note Guarantee is entitled upon payment in full of all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights guaranteed obligations under this Section 10.01Indenture to seek contribution from each other Subsidiary Guarantor in a pro rata amount of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment in accordance with GAAP.
Appears in 1 contract
Sources: Indenture (MasterBrand, Inc.)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Guarantor hereby fullyjointly and severally, unconditionally and irrevocably guaranteesguarantees the Notes and obligations of the Issuer hereunder and thereunder, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder of the Notes a Note authenticated and delivered by the Trustee and to the due and punctual payment Trustee on behalf of such Holder, that: (i) the principal of (and premium, if any) any and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes shall be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender call for repayment at redemption or otherwise (including the option amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), together with interest on the overdue principal, if any, and interest on any Holder or otherwiseoverdue interest, according to the terms thereof and of this Indenture extent lawful, and all other obligations of the Company with respect Issuer to the Notes to any Holder or Holders, the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto thereunder shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwisethereof; (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; and (ciii) any rescission, waiver, amendment or modification the payment of any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Note Guarantee or this Indenture. Each of the terms Note Guarantees shall be a guarantee of payment and not of collection.
(b) Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or provisions enforceability of the Notes or this Indenture, the Notes 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 Issuer, any action to enforce the same or any other agreement; circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(dc) Each Guarantor hereby waives the release benefits of any security held by any Holder diligence, presentment, demand for payment, filing of claims with a court in the Guarantor Obligations; (e) event of insolvency or bankruptcy of the failure of any Holder to exercise Issuer, any right to require a proceeding first against the Issuer or remedy any other Person, protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note and such Note Guarantee or as provided for in this Indenture. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal or premium, if any or interest on such Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce such Guarantor’s Note Guarantee without first proceeding against the Issuer or 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) . Each Guarantor agrees that its if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or any Guarantor, any amount paid by any of them to the Trustee or such Holder, the Note Guarantee herein of each of the Guarantors, to the extent theretofore discharged, shall remain be reinstated in full force and effect until payment effect. This paragraph (d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in full of all the Guarantor Obligations or reliance upon such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note Guarantee herein shall continue amount required to be effective or be reinstated, as returned. This paragraph (d) shall survive the case may be, if at any time payment, or any part thereof, termination of principal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwisethis Indenture.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(ke) Each Guarantor further agrees that, as between such each Guarantor, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI hereof for the purposes of its the Note Guarantee hereinof such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article VI hereof, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Guarantor for the purposes purpose of this the Note GuaranteeGuarantee of such Guarantor.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Note Guarantees. (a) Subject If the Company or any of its Restricted Subsidiaries acquires or creates any other Domestic Subsidiary on or after the date of this Indenture that becomes a guarantor under the ABL Credit Facility, then each such newly acquired or created Domestic Subsidiary must become a Guarantor and (i) execute a supplemental indenture, (ii) deliver an Opinion of Counsel to the provisions Trustee, (iii) execute any applicable joinders or supplements to, or otherwise become party to, the Security Documents in order to grant and perfect a Lien to the Collateral Trustee for the benefit of this Section 10the holders of Secured Obligations on the Collateral owned by such Domestic Subsidiary and (iv) execute a joinder or supplement to, or otherwise become party to, the Intercreditor Agreement, in each Guarantor hereby fullycase within 30 Business Days of the date of such acquisition or creation (or such later date as provided in the ABL Debt Documents).
(b) The Company will not permit any of its Restricted Subsidiaries (other than Foreign Subsidiaries), unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basisdirectly or indirectly, to each Holder Guarantee or pledge any assets to secure the payment of any other Indebtedness of the Company or any Guarantor (including, but not limited to, any Indebtedness under any Credit Facility) unless such Restricted Subsidiary is a Guarantor or within 30 Business Days of the date of such incurrence executes and delivers to the Trustee a supplemental indenture providing for the Guarantee of the payment of the Notes and the Trustee the due and punctual payment of the principal of (and premiumby such Restricted Subsidiary, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to which Guarantee shall be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to or pari passu in right of payment with such Subsidiary’s Guarantee of such other Indebtedness, executes and except for claims of creditors that are mandatorily preferred by lawdelivers to the Trustee or the Collateral Trustee, in which case as applicable, any applicable Security Documents and takes all actions required under the obligations Security Documents to perfect the Liens created thereunder. The form of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Supplemental Indenture (or a supplement thereto, substantially in the form is attached as Exhibit F hereto) and, in B and the case form of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form Guarantee is attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.C.
(c) Each Guarantor hereby agrees that its Notwithstanding Section 4.11(a) and (b), any Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted may provide by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and its terms that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from be automatically and protest to the Company of any of the Guarantor Obligations unconditionally released and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default discharged under the Notes or the Guarantor Obligationscircumstances described under Section 12.08.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Sources: Indenture (Office Depot Inc)
Note Guarantees. (a) Subject to Each of the provisions of this Section 10Guarantors, each Guarantor jointly and severally, hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basissenior secured basis (such guarantee being a "Note Guarantee"), 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 or enforceability of this Indenture, the Notes and or the Trustee the due and punctual payment Obligations of the Company under this Indenture or the Notes, that: (i) the principal of (and of, premium, if any) , and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes shall be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturitythe maturity or interest payment or mandatory redemption date, upon redemption, upon by acceleration, upon tender call for repayment at the option of any Holder redemption or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee interest on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Noteoverdue principal, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees premium and (to the extent permitted by law) that interest, if any, of the Guarantor Notes and all other Obligations may be extended of the Company to the Holders or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound the Trustee under this Section 10.01 notwithstanding any extension Indenture or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes shall be promptly paid in full or performed, all in accordance with the Guarantor Obligations.
terms of this Indenture and the Notes; and (g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will they shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitymaturity, by acceleration acceleration, redemption or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any amount so guaranteed or failing performance of any other Obligation of the terms Company to the Holders, for whatever reason, Guarantor shall be jointly and severally obligated to pay, or provisions to perform or to cause the performance of, the same immediately, whether or not such failure to pay or perform has become an Event of Default that could cause acceleration pursuant to Section 6.2 hereof. An Event of Default under this Indenture or the Notes shall constitute an event of default under this Note Guarantee, and shall entitle the Holders of Notes to accelerate the Obligations of each Guarantor hereunder in the same manner and to the same extent as the Obligations of the Company.
(b) Each Guarantor hereby agrees that its obligations with regard to each Note Guarantee shall be unconditional, irrespective of the validity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any provision hereof or thereof, the recovery of any judgment against the Company or any other obligor with respect to this Indenture, the Notes or the Obligations of the Company under this Indenture or the Notes, any action to enforce the same or any other agreement; circumstances that might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor, to the extent permitted by law, hereby waives and relinquishes all claims, rights and remedies accorded by applicable law to guarantors and agrees not to assert or take advantage of any such claims, rights or remedies, including but not limited to: (di) any right to require the release of Trustee, the Holders or the Company (each, a "Benefitted Party") to proceed against the Company or any other Person or to proceed against or exhaust any security held by a Benefitted Party at any Holder time or to pursue any other remedy in any Benefitted Party's power before proceeding against such Guarantor; (ii) the defense of the statute of limitations in any action hereunder or in any action for the Guarantor Obligationscollection of any Indebtedness or the performance of any obligation hereby guaranteed; (eiii) any defense that may arise by reason of the incapacity, lack Of authority, death or disability of any other Person or the failure of any Holder a Benefitted Party to exercise any right file or remedy enforce a claim against the estate (in administration, bankruptcy or any other Guarantorproceeding) of any other Person; (fiv) diligence, presentment, demand, protest and notice of any kind including but not limited to notice of the existence, creation or incurring of any new or additional Indebtedness or obligation or of any action or non-action on the part of such Guarantor, the Company, any Benefitted Party, any creditor of such Guarantor, the Company or on the part of any other Person whomsoever in connection with any Indebtedness or Obligations hereby guaranteed; (v) any change defense based upon an election of remedies by a Benefitted Party, including but not limited to an election to proceed against such Guarantor for reimbursement; (vi) any defense based upon any statute or rule of law that provides that the obligation of a surety must be neither larger in the ownership amount nor in other respects more burdensome than that of the Companyprincipal; (gvii) any default, failure or delay, willful or otherwisedefense arising because of a Benefitted Party's election, in any proceeding instituted under the Federal Bankruptcy Code, of the application of Section 1111(b)(2) of the Federal Bankruptcy Code; or (viii) any defense based on any borrowing or grant of a security interest under Section 364 of the Federal Bankruptcy Code. Each Guarantor hereby covenants that its Note Guarantee will not be discharged except by complete performance of the Guarantor Obligations obligations contained in the Notes and this Indenture 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 as otherwise operate as a discharge of such Guarantor as a matter of law or equityexpressly provided herein.
(ic) If any Holder or the Trustee is required by any court or otherwise to return to either the Company or any Guarantor, or any custodian, trustee, or similar official acting in relation to either the Company or such Guarantor, any amount paid by the Company or such Guarantor to the Trustee or such Holder, the applicable Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that its Note Guarantee herein shall remain it will not be entitled to any right of subrogation in full force and effect relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwiseobligations guaranteed hereby.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(kd) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (xi) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 hereof for the purposes of its this Note Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect as to the Company or any other obligor on the Notes of the Guarantor Obligations obligations guaranteed hereby and (yii) in the event of any such declaration of acceleration of such Guarantor Obligationsthose obligations as provided in Article 6 hereof, such Guarantor Obligations those obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes purpose of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Sources: Indenture (Coast Resorts Inc)
Note Guarantees. (a) Subject to the provisions of this Section 1012.05 hereof, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, 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 Trustee the due and punctual payment Obligations of the Company hereunder and thereunder, that: (i) the principal of (and of, premium, if any) , and interest (includingon the Notes will be promptly paid in full when due, in case of defaultsubject to any applicable grace period, whether at maturity, by acceleration, redemption or otherwise, and interest on principal andthe overdue principal, premium, if any, (to the extent permitted by applicable law, ) and interest on overdue interest and including any additional interest required to be paid according to the terms of the Notes)interest, if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations payment Obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations thereunder will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain promptly paid in full force and effect notwithstanding performed, all in accordance with the absence of the endorsement of any notation of such Note Guarantee on the Notes.
terms hereof and thereof; and (d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (bii) in 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 Maturitystated maturity, by acceleration acceleration, redemption or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when so due of any amount so guaranteed for whatever reason each Guarantor will be obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Note Guarantees, and shall entitle the Holders to accelerate the Obligations of the terms Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company.
(b) Each Guarantor hereby agrees that its Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture or by release in accordance with the provisions of this Indenture, the Notes 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 agreement; (d) the release circumstance which might otherwise constitute a legal or equitable discharge or defense of any security held by any Holder for the such Guarantor. Each Guarantor Obligations; (e) the failure hereby waives diligence, presentment, demand of any Holder to exercise any right or remedy against any other Guarantor; (f) any change payment, filing of claims with a court in the ownership event of insolvency or bankruptcy of the Company; (g) , any defaultright to require a proceeding first against the Company, failure or delayprotest, willful or otherwise, in the notice and all demands whatsoever and covenants that its Note Guarantee will not be discharged except by complete performance of the Guarantor Obligations contained in the Notes and this Indenture. If any Holder or (h) the Trustee is required by any court or otherwise to return to the Company, the Guarantors, or any Note Custodian, Trustee, liquidator or other act similar official acting in relation to either the Company or thing the Guarantors, any amount paid by either to the Trustee or omission or delay such Holder, the Note Guarantees, to do any other act or thing which may or might the extent theretofore discharged, shall be reinstated in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) full force and effect. Each Guarantor agrees that its Note Guarantee herein it shall remain not be entitled to, and hereby waives, any right of subrogation in full force and effect until payment relation to the Holders in full respect of all the Guarantor any Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwiseguaranteed hereby.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(kc) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (xi) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its the Note Guarantee hereinGuarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsObligations as provided in Article 6 hereof, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor the Guarantors for the purposes purpose of this the Note Guarantees.
(d) 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 Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Sources: Senior Subordinated Loan Agreement (J Crew Group Inc)
Note Guarantees. If the Company or any of its Restricted Subsidiaries acquires or creates a Domestic Subsidiary that is a Wholly Owned Subsidiary after the Issue Date, then that newly acquired or created Domestic Subsidiary (aother than a Securitization Subsidiary or an Immaterial Subsidiary) Subject will become a Guarantor and (i) execute a supplemental indenture (in substantially the form set forth in Exhibit E) and joinder agreements or similar agreements with respect to the provisions applicable Collateral Documents necessary in order to grant to the Collateral Agent for the benefit of this Section 10, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, to each Holder the Holders of the Notes a security interest, subject to the Intercreditor Agreement and the Trustee the due and punctual payment Permitted Liens, in substantially all of the principal assets (other than Excluded Assets) of such Domestic Subsidiary; (ii) take such actions necessary to perfect such security interest as may be required by the Collateral Documents (including the filing of a Uniform Commercial Code financing statement), as and premium, if anywhen required thereby; (iii) and interest (including, in case of default, interest on principal and, cause the delivery to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms Collateral Agent of the Notes)certificates, if any, representing all of the Equity Interests of such Domestic Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests; and (iv) deliver an Opinion of Counsel reasonably satisfactory to the Trustee and Collateral Agent that such supplemental indenture and any other documents required to be delivered, in each case, have been duly authorized, executed and delivered by such Domestic Subsidiary and constitute legally valid and binding and enforceable obligations of such Domestic Subsidiary and regarding the perfection of such Liens in the Collateral and Equity Interests of such Domestic Subsidiary as provided for in this Indenture or the Collateral Documents (in form and substance substantially consistent with the form of the Opinion of Counsel delivered on the NotesIssue Date (subject to customary qualifications, when exceptions and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations assumptions)) within 20 Business Days of the Company with respect to the Notes to any Holder date on which it was acquired or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantorcreated, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors otherwise provided under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes 4.21 or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (Pledge and not a guarantee of collection) and waives Security Agreement. The Company may designate any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 Restricted Subsidiary as a discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwisetime.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Sources: Indenture (Xerium Technologies Inc)
Note Guarantees. (a) Subject to the provisions of this Section Article 10, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, to each Holder of the Notes Notes, the Collateral Agent and the Trustee Trustee, the due and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunderNote Obligations. Each Guarantor agrees that the Guarantor Note Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Note Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i4.19 or 9.01(j) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Note Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Note Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Note Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Note Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Note Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Note Obligations in full), 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 Guarantor Note Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Note Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Note Obligations; (e) the failure of any Holder 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 Guarantor Note Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Note Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 5.01, Section 8.01 or Section 8.01 10.05 hereof. Each Guarantor further agrees that its Note 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, premium, if any, the Applicable Premium or interest on any of the Guarantor Note Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Note Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders Holders, the Collateral Agent or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Note Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Note Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Note Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Note Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Note Obligations, such Guarantor Note Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee Trustee, the Collateral Agent or the Holders in enforcing any rights under this Section 10.01.
(m) Any Guarantor may, but shall not be required to be, a Grantor in accordance with Section 11.04.
Appears in 1 contract
Sources: Indenture (American Airlines, Inc.)
Note Guarantees. (a) Subject to the provisions of this Section 10Article 11, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, to each Holder of the Notes Notes, the Collateral Agent and the Trustee Trustee, the due and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunderNote Obligations. Each Guarantor agrees that the Guarantor Note Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Note Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.0111.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i4.09 or Section 10.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 11.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Note Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Note Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company Co-Issuers of any of the Guarantor Note Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Note Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Note Obligations.
(h) Except as set forth in Section 10.0411.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Note Obligations in full), 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 Guarantor Note Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Note Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company any Co-Issuer or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 the Collateral Agent or any Holder for the Guarantor Note Obligations; (e) the failure of the Trustee or any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Companyany Co-Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Note Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Note Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 6.01, Section 9.01 or Section 8.01 11.05 hereof. Each Guarantor further agrees that its Note 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, premium, if any, the Applicable Premium or interest on any of the Guarantor Note Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company any Co-Issuer or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Co-Issuers to pay any of the Guarantor Note Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders Holders, the Collateral Agent or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Note Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Note Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company any Co-Issuer or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Note Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Note Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Note Obligations, such Guarantor Note Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee Trustee, the Collateral Agent or the Holders in enforcing any rights under this Section 10.0111.01.
(m) Any Guarantor may, but shall not be required to be, a Grantor in accordance with Section 12.04.
Appears in 1 contract
Note Guarantees. (a) Subject The Guarantors, either by execution of this Indenture or a Supplemental Indenture, fully and, subject to the provisions of limitations on the effectiveness and enforceability set forth in this Section 10Indenture or such Supplemental Indenture, each Guarantor hereby fullyas applicable, unconditionally and irrevocably guarantees, as primary obligor and not merely as suretyguarantee, on a joint and several basis, basis to each Holder of the Notes and to the Trustee (acting in any capacity hereunder) and its successors and assigns on behalf of each Holder, the due and punctual full payment of the principal of (and of, premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)interest, if any, on and Additional Amounts, if any, on, and all other monetary obligations of the Notes, when Issuer under this Indenture and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according Notes (including obligations to the Trustee (acting in any capacity hereunder) and the obligations to pay Additional Amounts, if any) with respect to, each Note authenticated and delivered by the Trustee or its agent pursuant to and in accordance with this Indenture, in accordance with the terms thereof and of this Indenture and (all other obligations of the Company with respect to foregoing being hereinafter collectively called the Notes to any Holder or the Trustee hereunder or thereunder“Note Obligations”). Each Guarantor agrees The Guarantors further agree that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, the Guarantors and that it will the Guarantors shall remain bound under this Section 10.01 Article Ten notwithstanding any extension or renewal of any Guarantor Note Obligation. All payments under each Note Guarantee will be made in U.S. dollars.
(fb) Each Guarantor waives presentation toThe Guarantors hereby agree that their obligations hereunder shall be as if they were each principal debtor and not merely surety, unaffected by, and irrespective of, any invalidity, irregularity or unenforceability of any Note or this Indenture, any failure to enforce the provisions of any Note or this Indenture, any waiver, modification or indulgence granted to the Issuer with respect thereto by the Holders or the Trustee, or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor (except payment in full); provided that notwithstanding the foregoing, no such waiver, modification, indulgence or circumstance shall without the written consent of the Guarantors increase the principal amount of a Note or the interest rate thereon or change the currency of payment with respect to any Note, or alter the Stated Maturity thereof. The Guarantors hereby waive diligence, presentment, demand of payment from and protest to payment, filing of claims with a court in the Company event of any merger or bankruptcy of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives Issuer, any right to require that the Trustee pursue or exhaust its legal or equitable remedies against the Issuer prior to exercising its rights under a Note Guarantee (including, for the avoidance of doubt, any resort be had by right which a Guarantor may have to require the seizure and sale of the assets of the Issuer to satisfy the outstanding principal of, interest on or any Holder other amount payable under each Note prior to recourse against such Guarantor or its assets), protest or notice with respect to any security held for payment of Note or the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromiseIndebtedness evidenced thereby and all demands whatsoever, 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall covenant that their Note Guarantee will not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 respect to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until except by payment in full of all the Guarantor Obligations principal thereof and interest thereon or such Guarantor is released from its Note Guarantee as otherwise provided in compliance with this Indenture, including Section 5.01 or Section 8.01 hereof10.04. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if If at any time payment, or any part thereof, payment of principal of, premium, if any, interest, if any, or interest Additional Amounts, if any, on any of the Guarantor Obligations such Note is rescinded or must be otherwise be restored by any Holder or returned upon the insolvency, bankruptcy or reorganization of the Company Issuer, the Guarantors’ obligations hereunder with respect to such payment shall be reinstated as of the date of such rescission, restoration or otherwisereturns as though such payment had become due but had not been made at such times.
(jc) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor The Guarantors also agrees agree to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee (acting in any capacity hereunder) or the Holders any Holder in enforcing any rights under this Section 10.01.
Appears in 1 contract
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Note Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint jointly and several basisseverally with each other Note Guarantor, to each Holder of the Notes and the Trustee (i) the due and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Noteseach Note, when and as the same shall become due and payable, whether at Stated Maturitymaturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder by acceleration or otherwise, according the due and punctual payment of interest on the overdue principal of and interest on the Notes, to the extent lawful, and the due and punctual payment of all other obligations and due and punctual performance of all obligations of the Issuers to the Holders or the Trustee all in accordance with the terms thereof and of such Note, this Indenture and all other obligations of the Company any Registration Rights Agreement with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other IndebtednessNote, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(bii) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf any extension of time of payment or renewal of any Notes or any of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees other obligations, that its Note Guarantee set forth in this Section 10.01 hereof shall remain the same will be promptly paid in full force and effect notwithstanding when due or performed in accordance with the absence terms of the endorsement of any notation of such extension or renewal, at stated maturity, by acceleration or otherwise (the “Guaranteed Obligations”). Each Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 Article X notwithstanding any extension or renewal of any Guaranteed Obligation. Each Note Guarantor Obligationhereby agrees to pay, in addition to the amounts stated above, any and all expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under any Note Guarantee.
(fb) Each Note Guarantor waives presentation to, demand of payment from and protest to the Company Issuers of any of the Guarantor Guaranteed Obligations and also waives notice of protest for nonpayment. Each Note Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Note Guarantor Obligationshereunder shall not be affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (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 any of them; (v) the failure of any Holder to exercise any right or remedy against any other Note Guarantor; or (vi) any change in the ownership of the Issuers.
(gc) Each Note Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Guaranteed Obligations.
(hd) Except as set forth in Section 10.04To the extent permitted by law, the obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Guaranteed Obligations in full), 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 Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations obligations of each Note Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturityagreement, by acceleration or otherwise; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations Guaranteed Obligations, or (h) 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 such Note Guarantor or would otherwise operate as a discharge of such Note Guarantor as a matter of law or equity.
(ie) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, of or interest on any of the Guarantor Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization (including examinership) of the Company either Issuer or otherwise.
(jf) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any each Note Guarantor by virtue hereof, upon the failure of the Company Issuers to pay any of the Guarantor Guaranteed Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Note Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of of:
(i) the unpaid amount of such Guarantor Guaranteed Obligations then due and owing and owing; and
(ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(kg) Each Note Guarantor further agrees that, as between such Note Guarantor, on the one hand, and the Holders, on the other hand, :
(xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby and hereby; and
(yii) in the event of any such declaration of acceleration of such Guarantor Guaranteed Obligations, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Note Guarantor for the purposes of this its Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Sources: Indenture (Elan Corp PLC)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Note Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint jointly and several basisseverally with each other Note Guarantor, to each Holder of the Notes and the Trustee (i) the due and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Noteseach Note, when and as the same shall become due and payable, whether at Stated Maturitymaturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder by acceleration or otherwise, according the due and punctual payment of interest on the overdue principal of and interest on the Notes, to the extent lawful, and the due and punctual payment of all other obligations and due and punctual performance of all obligations of the Issuers to the Holders or the Trustee all in accordance with the terms thereof and of such Note, this Indenture and all other obligations of the Company any Registration Rights Agreement with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other IndebtednessNote, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(bii) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration or otherwise (the "Guaranteed Obligations"). Each Note Guarantor further agrees (to the extent permitted by law) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation. Each Note Guarantor hereby agrees to pay, in addition to the amounts stated above, any and all expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under any Note Guarantee.
(b) Each Note Guarantor waives presentation to, demand of payment from and protest to the Issuers of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Note Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Note Guarantor hereunder shall not be affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (cii) any extension or renewal of any thereof; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (div) the release of any security held by any Holder or the Trustee for the Guarantor ObligationsGuaranteed Obligations or any of them; (ev) the failure of any Holder to exercise any right or remedy against any other Note Guarantor; (f) any change in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.or
Appears in 1 contract
Sources: Indenture (Elan Corp PLC)
Note Guarantees. (a) Subject Prior to the provisions of this Section 10Escrow Release Date, the Notes will be guaranteed by MPM TopCo on the terms set forth below. Upon the MPM Assumption, the Note Guarantee by MPM TopCo will be automatically released. On the Escrow Release Date, each Note Guarantor, by executing a Supplemental Indenture, will guarantee the Notes on the terms set forth below. Each Note Guarantor hereby fullyjointly and severally, irrevocably and unconditionally and irrevocably guaranteesguarantees on a senior basis, as a primary obligor and not merely as a surety, on a joint and several basis, to each Holder of the Notes and to the Trustee and its successors and assigns (i) the due full and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender for repayment at the option of any Holder by redemption or otherwise, according of all obligations of the Issuer under this Indenture (including obligations to the terms thereof Trustee) and the Notes, whether for payment of principal of, premium, if any, or interest on the Notes and all other monetary obligations of the Issuer under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company with respect to Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes to any Holder or (all the Trustee hereunder or thereunderforegoing being hereinafter collectively called the “Guaranteed Obligations”). Each Note Guarantor further agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from iteach such Note Guarantor, and that it will each such Note Guarantor shall remain bound under this Section 10.01 Article XII notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(fb) Each Note Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guarantor Guaranteed Obligations and also waives notice of protest for nonpayment. Each Note Guarantor waives notice of any default Default under the Notes or the Guaranteed Obligations. The obligations of each Note 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 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 the Collateral Agent for the benefit of the Holders and the Trustee for the Guaranteed Obligations or any Note 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 such Note Guarantor, except in each case as provided in Section 12.02(b).
(gc) Each Note Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Note Guarantors, such that such Note Guarantor’s obligations would be less than the full amount claimed. Each Note 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 such Note Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Note Guarantor hereunder. Each Note 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 such Note Guarantor.
(d) Each Note Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment 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 the Collateral Agent on behalf of the Holders and the Trustee to any security held for payment of the Guarantor Guaranteed Obligations.
(he) Except as expressly set forth in Section 10.04Sections 8.01(b), 12.02 and 12.06, the obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)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 Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations obligations of each Note Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturityagreement, by acceleration or otherwise; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations obligations, or (h) 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 Note Guarantor or would otherwise operate as a discharge of such any Note Guarantor as a matter of law or equity.
(if) Each Note Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofGuaranteed Obligations. Each Note Guarantor further agrees that its Note 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, premium, if any, of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(jg) 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 Note Guarantor by virtue hereof, upon the failure of the Company Issuer to pay the principal of or interest on any of the Guarantor Obligations 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 Note Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by applicable law) and (including interest accruing after iii) all other monetary obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating Issuer to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding)Holders and the Trustee.
(kh) Each Note 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 Note Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (xi) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI for the purposes of its any Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (yii) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article VI, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Note Guarantor for the purposes of this Note GuaranteeSection 12.01.
(li) Each Note Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or the Holders any Holder in enforcing any rights under this Section 10.0112.01.
(j) Upon request of the Trustee, each Note 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.
Appears in 1 contract
Note Guarantees. (a) Any Note Guarantee shall be evidenced by a supplemental indenture, executed by the applicable Guarantor and delivered by it to the Trustee, which shall be substantially in the form of Exhibit B.
(b) In connection with the execution and delivery of a supplemental indenture pursuant to Section 10.1(a), the applicable Guarantor shall deliver to the Trustee an Opinion of Counsel stating that:
(1) such Note Guarantee has been duly executed and authorized; and
(2) such Note Guarantee constitutes a valid, binding and enforceable obligation of such Guarantor, except insofar as enforcement thereof may be limited by bankruptcy, insolvency or similar laws (including all laws relating to fraudulent transfers) and except insofar as enforcement thereof is subject to general principals of equity.
(c) From and after the execution and delivery by a Guarantor of a supplemental indenture to this Indenture substantially in the form of Exhibit B, the obligations of the Issuer under the Notes and this Indenture shall be, jointly and severally, unconditionally guaranteed on a senior basis by such Guarantor. Subject to the provisions of this Section 10Article X, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint jointly and several basisseverally with each other Guarantor, to each Holder of the Notes and the Trustee and their respective successors and assigns, the due full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of (and of, premium, if any) , and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)interest, if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture Notes and all other obligations and liabilities of the Company with respect Issuer under the Indenture and the Notes (including without limitation, interest, if any, accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Notes to Issuer or any Holder Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the Trustee hereunder or thereunderobligations under Section 7.7) (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor agrees that the Guarantor Guaranteed Obligations will rank equally in right of payment with other Indebtedness indebtedness of such Guarantor, except to the extent such other Indebtedness indebtedness is subordinate to the Guarantor Guaranteed Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) indebtedness. Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof 10.1 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) . If an Officer whose signature is on the applicable supplemental indenture to this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a the Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) . Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 Article X notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(f) . Each Guarantor waives presentation to, demand of payment from and protest to the Company Issuer of any of the Guarantor Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Guaranteed Obligations.
(g) . Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Guaranteed Obligations.
(h) . Except as set forth in Section 10.0410.2, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Guaranteed Obligations in full), 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 Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Guaranteed Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of the Trustee or any Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwisethereof; (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 for the Guarantor Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (fe) any change in the ownership of the CompanyTrustee or Issuer; (gf) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations Guaranteed Obligations; or (hg) 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 such Guarantor as a matter of law or equity.
(i) . Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Guaranteed Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 10.2, Article VIII or Section 8.01 hereofArticle XI. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Guaranteed Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company Issuer, any Guarantor or otherwise.
(j) . In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee or has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the Guarantor Guaranteed Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders (or the Trustee on behalf of the Holders Holders) an amount equal to the sum of (i) the unpaid amount of such Guarantor Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest interest, if any, on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company Issuer or any Guarantor whether or not a claim for postfiling post-filing or post-petition interest is allowed in such proceeding).
(k) . Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Guaranteed Obligations, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes of this Note Guarantee.
(l) . Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.0110.1.
Appears in 1 contract
Sources: Indenture (OLIN Corp)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Guarantor hereby fully, unconditionally and irrevocably guaranteesEach Guarantor, as primary obligor and not merely as surety, hereby fully, unconditionally and irrevocably guarantees on a joint senior unsecured basis, jointly and several basisseverally, to each Holder of and to the Notes Trustee, the Agents and their respective successors and assigns (a) the Trustee the due full and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, Notes when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder by acceleration or otherwise, according to and all other monetary obligations of the terms thereof and of Issuer under this Indenture and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company with respect to Issuer under this Indenture and the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally (all such obligations set forth in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, clauses (a) and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in above being hereinafter collectively called the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) “Guaranteed Obligations”). Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, such Guarantor and that it such Guarantor will remain bound under this Section 10.01 Article 10 notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(f) . Each Guarantor waives presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guarantor Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Guaranteed Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the . The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder Holder, the Trustee or Agents to assert any claim or demand or to enforce any right or remedy against the Company Issuer, any other Guarantor or any other person Person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes obligation of the Issuer under the Indenture or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated MaturityNote, by acceleration operation of law or otherwise; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; or (d) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) except as set forth in Section 10.05, any change in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Guarantor. Each Guarantor further agrees that its Note Guarantee herein shall remain in full force constitutes a guarantee of payment, performance and effect until compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder, the Trustee or Agents to any security held for payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofGuaranteed Obligations. Each Guarantor further agrees that its Note 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, premium, if any, of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder Holder, the Trustee or Agents upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) . Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the Holders, the Trustee and the Agents, on the other hand, (x) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its such Guarantor’s Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby Guaranteed Obligations, and (y) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Section. Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee Trustee, the Agents or the Holders any Holder in enforcing any rights under this Section 10.01Section.
Appears in 1 contract
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Note Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, Guarantees to each Holder of the Notes and to the Trustee and its successors and assigns (a) the due full and punctual payment of the principal of (and of, premium, if any) , and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)Liquidated Damages, if any, on the Notes, Notes when and as the same shall become due and payabledue, whether at Stated Maturitymaturity, upon redemption, upon by acceleration, upon tender for repayment at the option of any Holder by redemption or otherwise, according to and all other monetary obligations of the terms thereof and of Company under this Indenture and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company with respect to under this Indenture and the Notes to any Holder or (all the Trustee hereunder or thereunderforegoing being hereinafter collectively called the "Obligations"). Each Note Guarantor further agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, such Note Guarantor and that it such Note Guarantor will remain bound under this Section 10.01 Article 11 notwithstanding any extension or renewal of any Guarantor Obligation.
(fb) Each Note Guarantor waives presentation to, demand of of, payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Note Guarantor waives notice of any default under the Notes or the Obligations. The obligations of each Note Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the 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 or the Trustee for the Obligations or any of them; (e) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) any change in the ownership of any Note Guarantor.
(gc) Each Note Guarantor further agrees that its Note Guarantee herein constitutes a guarantee Guarantee of payment payment, performance and compliance when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guarantor Obligations.
(hd) Each Note Guarantee is, to the extent and in the manner set forth in Article 12, subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness of such Note Guarantor and is made subject to such provisions of this Indenture.
(e) Except as expressly set forth in Section 10.048.01(b), the obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations obligations of each Note Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturityagreement, by acceleration or otherwise; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations Obligations, or (h) 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 each Note Guarantor or would otherwise operate as a discharge of such Note Guarantor as a matter of law or equity.
(if) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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 ofprincipal, premium, if any, or interest or Liquidated Damages, if any, on any of the Guarantor Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(jg) 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 Note Guarantor by virtue hereof, upon the failure of the Company to pay the principal of, premium, if any of the Guarantor Obligations or interest or Liquidated damages, if any, on any 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 Obligation, each Note Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and Obligations, (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) and (including interest accruing after iii) all other monetary Obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating Company to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding)Holders and the Trustee.
(kh) Each Note Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Obligations Guaranteed hereby until payment in full of all Obligations and all obligations to which the Obligations are subordinated as provided in Article 12. Each Note Guarantor further agrees that, as between such Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed Guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its such Note Guarantor's Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby Guaranteed hereby, and (y) in the event of any such declaration of acceleration of such Guarantor ObligationsObligations as provided in Article 6, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Note Guarantor for the purposes of this Note GuaranteeSection 11.01.
(li) Each Note Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred Incurred by the Trustee or the Holders any Holder in enforcing any rights under this Section 10.0111.01.
Appears in 1 contract
Sources: Indenture (Galey & Lord Inc)
Note Guarantees. The Company will not cause or permit (ax) Subject to the provisions any of this Section 10its Restricted Subsidiaries, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basisdirectly or indirectly, to each Holder Guarantee any Debt of the Notes and the Trustee the due and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person Restricted Subsidiary or (y) any of its domestic Restricted Subsidiaries to Incur Debt permitted to be Incurred under this Indentureclause (i) of the definition of “Permitted Debt” unless, the Notes or any other agreement or otherwise; (b) in each case of any extension such clause (x) or (y), such Restricted Subsidiary:
(i) within 5 Business Days of time the date on which it Guarantees Debt of payment or renewal of any Notes the Company or any of its Restricted Subsidiaries or Incurs such Debt, as applicable, executes and delivers to the Trustee a supplemental indenture pursuant to which such Restricted Subsidiary shall Guarantee (each, a “Note Guarantee”) all of the Company’s obligations under the Notes and this Supplemental Indenture on the terms substantially in the form of Exhibit B hereto and other obligationsterms contained in the applicable supplemental indenture and subject to the conditions contained in such supplemental indenture; and
(ii) delivers to the Trustee an Opinion of Counsel (which may contain customary exceptions) that such supplemental indenture and Note Guarantee have been duly authorized, that the same will executed and delivered by such Restricted Subsidiary and constitute legal, valid, binding and enforceable obligations of such Restricted Subsidiary. Thereafter, such Subsidiary shall be promptly paid in full when due or performed a Guarantor for all purposes of this Supplemental Indenture until such Guarantee is released in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Supplemental Indenture. In the event of a sale or other transfer or disposition of all of the Capital Interests in any Guarantor to any Person that is not an Affiliate of the Company in compliance with the terms of this Supplemental Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership event all or substantially all the assets or Capital Interests of the Company; (g) any defaulta Guarantor are sold or otherwise transferred, failure or delayby way of merger, willful consolidation or otherwise, in the performance to a Person that is not an Affiliate of the Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee Company in compliance with Section 5.01 the terms of this Supplemental Indenture, then, without any further action on the part of the Trustee or Section 8.01 hereof. Each any Holder, such Guarantor further agrees that (or the Person concurrently acquiring such assets of such Guarantor) shall be deemed automatically and unconditionally cancelled, released and discharged of any obligations under its Note Guarantee herein shall continue Guarantee, as evidenced by a supplemental indenture, written instrument or confirmation executed by the Trustee, upon request; provided, however that the Company delivers an Officers’ Certificate to the Trustee certifying that the net cash proceeds of such sale or other disposition will be applied in accordance with Section 4.10 and, if evidence of such cancellation, discharge or release is requested to be effective or be reinstatedexecuted by the Trustee, as the case may be, if at any time payment, or any part thereof, an Officers’ Certificate and an Opinion of principal of, premium, if any, or interest on any Counsel complying with Section 14.05 of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Base Indenture. The Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of may cause any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure Subsidiary of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not issue a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guaranteea Guarantor.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Sources: Supplemental Indenture (Olin Corp)
Note Guarantees. (a) Subject Each of the Note Guarantors, jointly and severally, hereby unconditionally Guarantees (and subject in each case to the provisions Agreed Guarantee Principles set forth in any notation of this Note Guarantee, supplemental indenture, or as contemplated by Section 10, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, 4.15 hereof) 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 or the Trustee obligations of the Company hereunder or thereunder that: (i) the due and punctual payment of principal, premium and interest on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, (ii) the due and punctual payment of interest on the overdue principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notesif lawful, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to promptly paid in full or performed, all in accordance with the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from itterms hereof and thereof, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (biii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration pursuant to Section 6.2 hereof or otherwise; . Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Note Guarantors shall be jointly and severally obligated to pay the same immediately. Each Note Guarantor shall agree that this is a Guarantee of payment and not a Guarantee of collection.
(cb) Each of the Note Guarantors hereby agrees that its obligations with regard to its Guarantee shall be joint and several, unconditional, irrespective of the validity or enforceability of the Notes or the obligations of the Company
(A) any rescission, waiver, amendment or modification of any of the terms principles or provisions of this Indenturelaw, statutory or otherwise, which are or might be in conflict with the terms of the Note Guarantees and any legal or equitable discharge of such Note Guarantor’s obligations hereunder and under its Note Guarantee, (B) the benefit of any statute of limitations affecting such Note Guarantor’s liability hereunder and under its Note Guarantee or the enforcement hereof and thereof, (C) any rights to set-offs, recoupments and counterclaims and (D) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (vi) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Note Guarantees, notices of default under the Notes or any other agreementagreement or instrument related thereto, notices of any renewal, extension or modification of the obligations under the Note Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (dvii) to the release extent permitted under applicable law, the benefits of any security held by any Holder for the Guarantor Obligations“One Action” rule; and (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (fviii) any change in defenses or benefits that may be derived from or afforded by law which limit the ownership liability of or exonerate guarantors or sureties, or which may conflict with the terms of the Company; (g) any defaultNote Guarantees. Except as set forth in Section 10.5 hereof, failure or delay, willful or otherwise, in the performance of the each Note Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees covenants that its Note Guarantee herein shall remain not be discharged except by complete performance of the obligations contained in its Note Guarantee and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Note Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Note Guarantors, any amount paid to either the Trustee or such Holder, any Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect effect.
(d) Each Note Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Note Guarantor shall further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees agree that, as between such Guarantorthe Note Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (xi) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Section 6.2 hereof for the purposes of its Note Guarantee hereinany Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby and (yii) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Section 6.2 hereof, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor the Note Guarantors for the purposes purpose of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.such
Appears in 1 contract
Sources: Indenture (Valeant Pharmaceuticals International, Inc.)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Guarantor hereby fullyjointly and severally, fully and unconditionally guarantees the Notes and irrevocably guaranteesobligations of the Issuer hereunder and thereunder, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder of the Notes a Note authenticated and delivered by the Trustee and to the due Trustee for itself and punctual payment on behalf of such Holder, that: (i) the principal of (and premium, if any) any and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes shall be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender call for repayment at redemption or otherwise (including the option amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), together with interest on the overdue principal, if any, and interest on any Holder or otherwiseoverdue interest, according to the terms thereof and of this Indenture extent lawful, and all other obligations of the Company with respect Issuer to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto thereunder shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
thereof; and (d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification of any . Each of the terms Note Guarantees shall be a guarantee of payment and not of collection.
(b) Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or provisions enforceability of the Notes or this Indenture, the Notes 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 agreement; circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(dc) Each Guarantor hereby waives the release benefits of any security held by any Holder diligence, presentment, demand for payment, filing of claims with a court in the Guarantor Obligations; (e) event of insolvency or bankruptcy of the failure of any Holder to exercise Company, any right to require a proceeding first against the Company, any Guarantor or remedy any other Person, protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note and such Note Guarantee or as provided for in this Indenture. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal or premium, if any or interest on such Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce such Guarantor’s Note Guarantee without first proceeding against the Company or 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) . Each Guarantor agrees that its if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or any Guarantor, any amount paid by any of them to the Trustee or such Holder, the Note Guarantee herein of each of the Guarantors, to the extent theretofore discharged, shall remain be reinstated in full force and effect until payment effect. This paragraph (d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in full of all the Guarantor Obligations or reliance upon such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note Guarantee herein shall continue amount required to be effective or be reinstated, as returned. This paragraph (d) shall survive the case may be, if at any time payment, or any part thereof, termination of principal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwisethis Indenture.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(ke) Each Guarantor further agrees that, as between such each Guarantor, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI hereof for the purposes of its the Note Guarantee hereinof such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article VI hereof, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Guarantor for the purposes purpose of this the Note GuaranteeGuarantee of such Guarantor.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Note Guarantees. (a) Subject to the provisions of this Section Article 10, each Guarantor hereby fullyof the Guarantors hereby, jointly and severally, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, 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 or the Trustee the due and punctual payment obligations of the Company hereunder or thereunder, that: (a) the principal of (and of, premium, if any) , and interest (includingon the Notes shall be promptly paid in full when due, in case of defaultwhether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal andof, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)premium, if any, and interest on the Notes, when and as the same shall become due and payableif any, whether at Stated Maturityif lawful, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in and the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto Notes shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain promptly paid in full force or performed, all in accordance with the terms of this Indenture and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, ; and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the terms validity, regularity or provisions enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of this Indenture and the Notes, the recovery of any judgment against the Company, any action to enforce the same or any other agreement; (d) the release circumstance which might otherwise constitute a legal or equitable discharge or defense of any security held by any Holder for the a Guarantor. Each Guarantor Obligations; (e) the failure hereby waives diligence, presentment, demand of any Holder to exercise any right or remedy against any other Guarantor; (f) any change payment, filing of claims with a court in the ownership event of insolvency or bankruptcy of the Company; (g) , any defaultright to require a proceeding first against the Company, failure or delayprotest, willful or otherwise, in notice and all demands whatsoever and covenant that the Note Guarantees shall not be discharged except by complete performance of the Guarantor Obligations obligations contained in the Notes and this Indenture. As more particularly set forth in Section 4.13, the Notes shall be guaranteed in the future by each new North American Subsidiary that is a Significant Subsidiary. The Notes also shall be guaranteed in the future as required by Section 4.14. If any Holder or (h) the Trustee is required by any court or otherwise to return to the Company or Guarantors, or any Custodian, Trustee, liquidator or other act similar official acting in relation to either the Company or thing Guarantors, any amount paid by either to the Trustee or omission or delay such Holder, these Guarantees, to do any other act or thing which may or might the extent theretofore discharged, shall be reinstated in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) full force and effect. Each Guarantor agrees that its Note Guarantee herein it shall remain not be entitled to any right of subrogation in full force and effect relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantorthe Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 hereof for the purposes of its Note Guarantee hereinthese Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article 6 hereof, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor the Guarantors for the purposes purpose of this Note Guarantee.
(l) Each these Guarantees. The Guarantors shall have the right to seek contribution from any non-paying Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by so long as the Trustee or exercise of such right does not impair the rights of the Holders in enforcing any rights under this Section 10.01these Guarantees.
Appears in 1 contract
Sources: Indenture (Cenveo, Inc)
Note Guarantees. (a) Subject to this Article X, from and after the provisions of this Section 10Issue Date, each Guarantor hereby fullyof the Guarantors hereby, jointly and severally, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes and or the Trustee obligations of the due Issuer hereunder or thereunder, the full and punctual payment of the principal of of, premium (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, Notes when and as the same shall become due and payabledue, whether at Stated Maturity, or upon redemption, upon accelerationrequired repurchase pursuant to Section 4.7 or Section 4.11 hereof, upon tender for repayment at the option of any Holder acceleration or otherwise, according to the terms thereof and of this Indenture and all other monetary obligations of owing by the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors Issuer under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement including obligations owing to the Note Guarantee, substantially in Trustee) and the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
Notes (c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding all the absence of foregoing being hereinafter collectively called the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor “Obligations”). The Guarantors further agrees (to the extent permitted by law) agree that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from itthe Guarantors, and that it the Guarantors will remain bound under this Section 10.01 Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(f) . Failing payment when due of any amount so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to promptly pay the same. Each Guarantor waives agrees that this is a guarantee of payment and not a guarantee of collection. All payments under each Note Guarantee will be made in U.S. dollars. The Guarantors waive presentation to, demand of payment from and protest to the Company Issuer of any of the Guarantor Obligations and also waives waive notice of protest for nonpayment. Each Guarantor waives The Guarantors waive notice of any default Default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment . The obligations of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor Guarantors hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason affected by: (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other person Person under this Indenture, the Notes Notes, the Note Guarantees or any other agreement or otherwise; (bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwiseObligation; (ciii) any rescission, waiver, amendment amendment, modification or modification supplement of any of the terms or provisions of this IndentureIndenture (other than this Article X), the Notes Notes, the Note Guarantees or any other agreement; (div) the release of any security security, if any, held by any Holder or the Trustee for the Guarantor ObligationsObligations or any of them; (ev) the failure of any Holder or the Trustee to exercise any right or remedy against any other Guarantorguarantor of the Obligations; (fvi) any change in the ownership of the CompanyIssuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations or (hvii) 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 the Guarantors or would otherwise operate as a discharge of such Guarantor the Guarantors as a matter of law or equity.
, except for payment of the Notes in full. The Guarantors, jointly and severally, further agree that their Note Guarantees herein constitute a guarantee of payment when due (iand not a guarantee of collection) Each Guarantor agrees and waive any right to require that its Note Guarantee herein any resort be had by any Holder or the Trustee to security, if any, held for payment of the Obligations. The obligations of the Guarantors hereunder shall remain not be subject to any reduction, limitation, impairment or termination for any reason (except to the extent provided in full force Section 10.2 hereof), including any claim of waiver, release, surrender, alteration or compromise, and effect until payment in full shall not be subject to any defense, setoff, counterclaim, recoupment or termination whatsoever or by reason of all the Guarantor invalidity, illegality or unenforceability of the Obligations or such Guarantor is released from its otherwise. The Guarantors, jointly and severally, further agree that their Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note Guarantee Guarantees 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, premium, if any, or interest on any of the Guarantor Obligations Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(j) . 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 the Guarantors by virtue hereof, upon the failure of the Company Issuer to pay any of the Guarantor Obligations Obligation when and as the same shall become due, whether at maturityStated Maturity, by accelerationupon redemption, by redemption required repurchase, acceleration or otherwise, each Guarantor the Guarantors hereby promises promise to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid principal amount of such Guarantor Obligations then due and owing and Obligations, (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) and (including interest accruing after iii) all other monetary Obligations of the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating Issuer to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees Holders and the Trustee. The Guarantors, jointly and severally, agree that, as between such Guarantorthe Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI for the purposes of its the Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby Obligations, and (y) in the event of any such declaration of acceleration of such Guarantor ObligationsObligations as provided in Article VI, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor the Guarantors for the purposes of this Note Guarantee.
(l) Each Guarantor Section 10.1. The Guarantors, jointly and severally, also agrees agree to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or the Holders any Holder in enforcing any rights under this Section 10.0110.1.
Appears in 1 contract
Note Guarantees. (a) Subject Each of the Note Guarantors, jointly and severally, hereby unconditionally Guarantees (and subject in each case to the provisions Agreed Guarantee Principles set forth in any notation of this Note Guarantee, supplemental indenture, or as contemplated by Section 10, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, 4.15 hereof) 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 or the Trustee obligations of the Company hereunder or thereunder that: (i) the due and punctual payment of principal, premium and interest on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, (ii) the due and punctual payment of interest on the overdue principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notesif lawful, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to promptly paid in full or performed, all in accordance with the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from itterms hereof and thereof, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (biii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration pursuant to Section 6.2 hereof or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Note Guarantors shall be jointly and severally obligated to pay the same immediately. Each Note Guarantor shall agree that this is a Guarantee of payment and not a Guarantee of collection.
(b) Each of the terms Note Guarantors hereby agrees that its obligations with regard to its Guarantee shall be joint and several, unconditional, irrespective of the validity or provisions enforceability of the Notes or the obligations of the Company under this Indenture, the absence of any action to enforce the same, the recovery of any judgment against the Company or any other obligor with respect to this Indenture, the Notes or the obligations of the Company under this Indenture or the Notes, any action to enforce the same or any other agreement; circumstances (dother than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Note Guarantor. Each Note Guarantor further, to the release extent permitted by law, hereby waives and relinquishes all claims, rights and remedies accorded by applicable law to guarantors and agrees not to assert or take advantage of any such claims, rights or remedies, including but not limited to: (i) any right to require any of the Trustee, the Holders or the Company (each a “Benefited Party”), as a condition of payment or performance by such Note Guarantor, to (A) proceed against the Company, any other guarantor (including any other Note Guarantor) of the obligations under the Note Guarantees or any other person, (B) proceed against or exhaust any security held by from the Company, any Holder for such other guarantor or any other person, (C) proceed against or have resort to any balance of any deposit account or credit on the Guarantor Obligationsbooks of any Benefited Party in favor of the Company or any other person, or (D) pursue any other remedy in the power of any Benefited Party whatsoever; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (fii) any change in the ownership defense arising by reason of the Company; incapacity, lack of authority or any disability or other defense of the Company including any defense based on or arising out of the lack
(gA) any defaultprinciples or provisions of law, failure or delay, willful statutory or otherwise, which are or might be in conflict with the performance terms of the Guarantor Obligations Note Guarantees and any legal 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 equitable discharge of such Note Guarantor’s obligations hereunder and under its Note Guarantee, (B) the benefit of any statute of limitations affecting such Note Guarantor’s liability hereunder and under its Note Guarantee or the enforcement hereof and thereof, (C) any rights to set-offs, recoupments and counterclaims and (D) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (vi) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Note Guarantees, notices of default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification of the obligations under the Note Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (vii) to the extent permitted under applicable law, the benefits of any “One Action” rule; and (viii) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the Note Guarantees. Except as set forth in Section 10.5 hereof, each Note Guarantor as a matter of law or equity.
(i) Each Guarantor agrees covenants that its Note Guarantee herein shall remain not be discharged except by complete performance of the obligations contained in its Note Guarantee and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Note Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Note Guarantors, any amount paid to either the Trustee or such Holder, any Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect effect.
(d) Each Note Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Note Guarantor shall further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees agree that, as between such Guarantorthe Note Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (xi) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Section 6.2 hereof for the purposes of its Note Guarantee hereinany Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby and (yii) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Section 6.2 hereof, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor the Note Guarantors for the purposes purpose of this any such Guarantee. The Note Guarantors shall have the right to seek contribution from any non-paying Note Guarantor so long as the exercise of such right does not impair the rights of the Holders under the applicable Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Note Guarantees. (a) Subject If any Restricted Subsidiary (including any Restricted Subsidiary formed or acquired after the Issue Date) shall become a borrower or guarantor under any U.S. Credit Facility or under any of the Senior Notes, then such Restricted Subsidiary shall (i) execute and deliver to the provisions of this Section 10, each Guarantor hereby fully, Trustee a supplemental indenture in form and substance satisfactory to the Trustee pursuant to which such Restricted Subsidiary shall unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, to each Holder Guarantee all of the Company’s obligations under the Securities and this Indenture on the terms set forth in Article Twelve and (ii) deliver to the Trustee an Opinion of Counsel that such supplemental indenture has been duly authorized, executed and delivered by such Restricted Subsidiary and constitutes a legal, valid, binding and enforceable obligation of such Subsidiary; provided, however, that if, at any time, the Senior Notes are not outstanding, all references in the Indenture and the Trustee the due Securities to “Restricted Subsidiary” or “Restricted Subsidiaries” shall be changed to, and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required deemed to be paid according to the terms of the Notes)a reference to, if any, on the Notes, when “Subsidiary” and “Subsidiaries,” as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claimsapplicable.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of Notwithstanding the foregoing, each Guarantee by a Guarantor of the Guarantor Obligations Securities shall provide by its terms that it shall be automatically and unconditionally released and discharged upon (i) any sale, exchange or transfer, to any Person not an Affiliate of each Guarantor herein shall not be discharged the Company, of all of the Company’s Capital Stock in, or impaired all or otherwise affected by (a) substantially all the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indentureassets of, the Notes or any other agreement or otherwise; (b) such Guarantor, which transaction is in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance compliance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder Indenture and pursuant 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or transaction such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premiumall guarantees, if any, or interest on any by it of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization other Indebtedness of the Company or otherwise.
any of its Subsidiaries or (jii) In furtherance of the foregoing and not in limitation of such Subsidiary ceasing to be a borrower or guarantor under any other right which any Holder has at law U.S. Credit Facility or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, Senior Notes (other than by acceleration, reason of a payment under a guarantee by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith payany Subsidiary), or cause (iii) such Subsidiary ceasing to be paid, in cash, to the Holders or the Trustee on behalf a wholly owned Subsidiary of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding)Company.
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Sources: Indenture (General Cable Corp /De/)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, to each Holder of the Notes and the Trustee the due and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.and
Appears in 1 contract
Sources: Indenture
Note Guarantees. (a) Subject Each Guarantor that executes this Indenture or a supplemental indenture agreeing to the provisions of this Section 10, each Guarantor hereby fully, unconditionally and irrevocably guaranteesbe bound hereby, as primary obligor and not merely as surety, hereby fully, unconditionally and irrevocably guarantees on a joint [senior][subordinated] unsecured basis, jointly and several basisseverally, to each Holder of the Notes of each series and to the Trustee Trustee, the due Agents and their respective successors and assigns (a) the full and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, Notes of each such series when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder by acceleration or otherwise, according to and all other monetary obligations of the terms thereof and of Issuer under this Indenture and the Notes of each such series and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company with respect to Issuer under this Indenture and the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally of each such series (all such obligations set forth in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, clauses (a) and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in above being hereinafter collectively called the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) “Guaranteed Obligations”). Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, such Guarantor and that it such Guarantor will remain bound under this Section 10.01 Article 10 notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(f) . Each Guarantor waives presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guarantor Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes of any series or the Guarantor Guaranteed Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the . The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder Holder, the Trustee or Agents to assert any claim or demand or to enforce any right or remedy against the Company Issuer, any other Guarantor or any other person Person under this Indenture, the Notes of any series or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes obligation of the Issuer under the Indenture or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated MaturityNote, by acceleration operation of law or otherwise; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes of any series or any other agreement; or (d) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) except as set forth in Section 10.05, any change in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Guarantor. Each Guarantor further agrees that its Note Guarantee herein shall remain in full force constitutes a guarantee of payment, performance and effect until compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder, the Trustee or Agents to any security held for payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofGuaranteed Obligations. Each Guarantor further agrees that its Note 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, premium, if any, of or interest on any of the Guarantor Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder Holder, the Trustee or Agents upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) . Each Guarantor further agrees that, as between such Guarantorit, on the one hand, and the Holders, the Trustee and the Agents, on the other hand, (x) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its such Guarantor’s Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby Guaranteed Obligations, and (y) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article 6, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Section 10.01. Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee Trustee, the Agents or the Holders any Holder in enforcing any rights under this Section 10.01.
Appears in 1 contract
Sources: Subordinated Indenture (Delphi Trade Management, LLC)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and The Company will not merely as surety, on a joint and several basis, to each Holder of the Notes and the Trustee the due and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder cause or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of permit any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason Restricted Subsidiaries (other than payment of the Guarantor Obligations in fulla Guarantor), including directly or indirectly, to guarantee any claim Indebtedness 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; Guarantor unless such Restricted Subsidiary:
(ba) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms within 5 Business Days of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification date on which it guarantees Indebtedness 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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not executes and delivers to the Trustee a claim for postfiling or post-petition interest is allowed supplemental indenture pursuant to which such Restricted Subsidiary shall guarantee (each, a “Note Guarantee”) all of the Company’s obligations under the Notes and this Indenture and other terms contained in the applicable supplemental indenture and subject to the conditions contained in such proceeding).supplemental indenture; and
(kb) Each delivers to the Trustee an Opinion of Counsel (which may contain customary exceptions) that such supplemental indenture and Note Guarantee have been duly authorized, executed and delivered by such Restricted Subsidiary and constitute legal, valid, binding and enforceable obligations of such Restricted Subsidiary. Thereafter, such Subsidiary shall be a Guarantor further agrees that, as between for all purposes of this Indenture until such Guarantor, on Note Guarantee is released in accordance with the one hand, and provisions of this Indenture. In the Holders, on the event of a sale or other hand, (x) the maturity transfer or disposition of all of the Capital Stock in any Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding to any stay, injunction or other prohibition preventing such acceleration in respect Person that is not an Affiliate of the Guarantor Obligations guaranteed hereby and (y) Company in compliance with the terms of this Indenture, or in the event all or substantially all the assets or Capital Stock of a Guarantor are sold or otherwise transferred, by way of merger, consolidation or otherwise, to a Person that is not an Affiliate of the Company in compliance with the terms of this Indenture, then, without any such declaration further action on the part of acceleration of such Guarantor Obligationsthe Trustee or any Holder, such Guarantor Obligations (whether or not due and payablethe Person concurrently acquiring such assets of such Guarantor) shall forthwith become due be deemed automatically and payable unconditionally cancelled, released and discharged of any obligations under its Note Guarantee, as evidenced by a supplemental indenture, written instrument or confirmation executed by the Trustee, upon request; provided, however that the Company delivers an Officers’ Certificate to the Trustee certifying that the net cash proceeds of such Guarantor for sale or other disposition will be applied in accordance with Section 1017 and, if evidence of such cancellation, discharge or release is requested to be executed by the purposes Trustee, an Officers’ Certificate and an Opinion of Counsel complying with Section 102 of this Indenture. The Company may cause any other Subsidiary of the Company to issue a Note Guarantee and become a Guarantor. Each Note Guarantee by a Restricted Subsidiary will be limited to an amount not to exceed the maximum amount that can be guaranteed by that Restricted Subsidiary without rendering the Note Guarantee, as it relates to such Restricted Subsidiary, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Sources: Indenture (Aircastle LTD)
Note Guarantees. (a) Subject to With the provisions exception of this Section 10any Non-Guarantor Subsidiaries, each Domestic Subsidiary of the Company as of the date hereof, will act as a Guarantor. Each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor jointly and not merely as surety, on a joint and several basisseverally, to each Holder of the Notes a Security authenticated and delivered by the Trustee and to the due Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities or the obligations of the Company hereunder or thereunder, on an unsecured senior subordinated basis (i) the full and punctual payment of the principal of (of, and premium, if any) premium and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)Liquidated Damages, if any, and interest on the Notes, Securities when and as the same shall become due and payabledue, whether at Stated Maturitymaturity, upon by acceleration, by redemption, upon acceleration, upon tender for repayment at the option of any Holder by required repurchase or otherwise, according to and interest on the terms thereof overdue principal of and interest on the Securities, if any, if lawful, and all other monetary obligations of the Company and the Guarantors under this Indenture and the Securities and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company with respect to and the Notes to any Holder or Guarantors under this Indenture and the Trustee hereunder or thereunderSecurities (all the foregoing being hereinafter collectively called the "Guaranteed Obligations"). Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Guaranteed Obligations may be extended or renewed, in whole or in part, without further notice or further assent from it, such Guarantor and that it such Guarantor will remain bound under this Section 10.01 Article Fourteen notwithstanding any extension or renewal of any Guarantor Guaranteed Obligation.
(fb) Each Guarantor waives presentation to, demand of of, payment from and protest to the Company of any of the Guarantor Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes Securities or the Guaranteed Obligations. The Guaranteed Obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture or the Securities or any other agent or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; (f) subject to Section 1406, any change in the ownership of such Guarantor; or (g) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.
(gc) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment 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 Guarantor Guaranteed Obligations.
(hd) Except as expressly set forth in Section 10.04Sections 1403, 1405, 1202 and 1203, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full)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 Guarantor Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes Securities or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturityagreement, by acceleration or otherwise; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations obligations, or (h) 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 such guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(ie) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, of or interest on any of the Guarantor Obligations 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.
(jf) 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 of the Guarantor Obligations 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 will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and Guaranteed Obligations, (ii) accrued and unpaid interest on such Guarantor Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) and (including interest accruing after the filing iii) all other monetary Guaranteed Obligations of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding)the Guarantors to the Holders and the Trustee.
(kg) Each Guarantor further agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor agrees that, as between such Guarantorit, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture Article Eight for the purposes of its such Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Guaranteed Obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor ObligationsGuaranteed Obligations as provided in Article Five, such Guarantor Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section 1401. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.
(lh) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ ' fees and expensesdisbursements) incurred by the Trustee or the Holders any Holder in enforcing or obtaining advice 107 of counsel in respect of any rights with respect to or collecting from such Guarantor under this Note Guarantee under this Section 10.011401.
Appears in 1 contract
Sources: Indenture (Rent a Center Inc De)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Subsidiary Guarantor hereby fullyjointly and severally, absolutely, unconditionally and irrevocably guaranteesguarantees the Notes and obligations of the Company hereunder and thereunder, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder of a Note authenticated and delivered by the Notes Trustee, and to the Trustee the due and punctual payment on behalf of such Holder, that: (a) the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes will be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemptionby acceleration or otherwise (including, upon accelerationwithout limitation, upon tender the amount that would become due but for repayment at the option 106 operation of the automatic stay under Section 362(a) of the Bankruptcy Law), together with interest on the overdue principal, if any, and interest on any Holder or otherwiseoverdue interest, according to the terms thereof and of this Indenture extent lawful, and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations thereunder will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, thereof; and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; , subject, however, in the case of clauses (ca) any rescissionand (b) above, waiverto the limitations set forth in Section 1305 hereof. Each Subsidiary Guarantor hereby agrees that its obligations hereunder shall be unconditional, amendment or modification of any irrespective of the terms validity, regularity or provisions enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, any release of any other Subsidiary Guarantor, the recovery of any judgment against the Company, any action to enforce the same or any other agreement; circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Subsidiary Guarantor hereby waives (dto the extent permitted by law) the release benefits of diligence, presentment, demand for payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any security held right to require a proceeding first against the Company or any other Person, protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Subsidiary Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note, this Indenture and such Note Guarantee. Each Subsidiary Guarantor acknowledges that the Note Guarantee is a guarantee of payment and not of collection. Each of the Subsidiary Guarantors hereby agrees that, in the event of a default in payment of principal (or premium, if any) or interest on such Note, whether at its Stated Maturity, by acceleration, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Subsidiary Guarantors to enforce such Subsidiary Guarantor's Note Guarantee without first proceeding against the Company or any Holder for other Subsidiary Guarantor. Each Subsidiary Guarantor agrees that if, after the Guarantor Obligations; (e) occurrence and during the failure continuance of an Event of Default, the Trustee or any Holder of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy against with respect to the Notes, such Subsidiary Guarantor will pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders. If any Holder or the Trustee is required by any court or otherwise to return to the Company or any Subsidiary Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or any Subsidiary Guarantor; , any amount paid by any of them to the Trustee or such Holder, the Note Guarantee of each of the Subsidiary Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor further agrees that, as between each Subsidiary Guarantor, on the 107 one hand, and the Holders and the Trustee, on the other hand, (fx) subject to this Article Thirteen, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the purposes of the Note Guarantee of such Subsidiary Guarantor, notwithstanding any change stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the ownership event of any acceleration of such obligations as provided in Article Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by each Subsidiary Guarantor for the purpose of the Company; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations 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 discharge Note Guarantee of such Guarantor as a matter of law or equity.
(i) Subsidiary Guarantor. Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note Guarantee herein shall Company's assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes, whether as a "voidable preference", "fraudulent transfer" or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, of principal ofis rescinded, premiumreduced, if anyrestored or returned, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cashNotes shall, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the fullest extent not prohibited permitted by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, be reinstated and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable deemed reduced only by such Guarantor for the purposes of this Note Guaranteeamount paid and not so rescinded, reduced, restored or returned.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Note Guarantees. (a) Subject to the provisions of this Section Article 10, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, to each Holder of the Notes Notes, the Collateral Agent and the Trustee the due and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations Obligations; 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders Holders, the Collateral Agent or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each The Company and each Guarantor also agrees agree to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee Trustee, the Collateral Agent or the Holders in enforcing any rights under this Section 10.01.
(m) Any Guarantor may, but shall not be required to be, a Grantor in accordance with Section 11.04.
Appears in 1 contract
Sources: Indenture (American Airlines, Inc.)
Note Guarantees. (a) Subject to the provisions of this Section Article 10, each Guarantor hereby fullyof the Guarantors hereby, jointly and severally, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, 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 or the Trustee the due and punctual payment obligations of the Company hereunder or thereunder, that: (a) the principal of (and premiumof, if any) premium and interest (includingon the Notes shall be promptly paid in full when due, in case of defaultwhether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal andof, to the extent permitted by applicable law, premium and interest on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notesif lawful, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in and the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto Notes shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain promptly paid in full force or performed, all in accordance with the terms of this Indenture and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, ; and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the terms validity, regularity or provisions enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of this Indenture and the Notes, the recovery of any judgment against the Company, any action to enforce the same or any other agreement; (d) the release circumstance which might otherwise constitute a legal or equitable discharge or defense of any security held by any Holder for the a Guarantor. Each Guarantor Obligations; (e) the failure hereby waives diligence, presentment, demand of any Holder to exercise any right or remedy against any other Guarantor; (f) any change payment, filing of claims with a court in the ownership event of insolvency or bankruptcy of the Company; (g) , any defaultright to require a proceeding first against the Company, failure or delayprotest, willful or otherwise, in notice and all demands whatsoever and covenant that the Note Guarantees shall not be discharged except by complete performance of the Guarantor Obligations obligations contained in the Notes and this Indenture. As more particularly set forth in Section 4.13, the Notes shall be guaranteed in the future by each new North American Subsidiary that is a Significant Subsidiary. The Notes also shall be guaranteed in the future as required by Section 4.14. If any Holder or (h) the Trustee is required by any court or otherwise to return to the Company or Guarantors, or any Custodian, Trustee, liquidator or other act similar official acting in relation to either the Company or thing Guarantors, any amount paid by either to the Trustee or omission or delay such Holder, these Guarantees, to do any other act or thing which may or might the extent theretofore discharged, shall be reinstated in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) full force and effect. Each Guarantor agrees that its Note Guarantee herein it shall remain not be entitled to any right of subrogation in full force and effect relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantorthe Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 hereof for the purposes of its Note Guarantee hereinthese Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article 6 hereof, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor the Guarantors for the purposes purpose of this Note Guarantee.
(l) Each these Guarantees. The Guarantors shall have the right to seek contribution from any non-paying Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by so long as the Trustee or exercise of such right does not impair the rights of the Holders in enforcing any rights under this Section 10.01these Guarantees.
Appears in 1 contract
Sources: Indenture (Cenveo, Inc)
Note Guarantees. (a) Subject The Guarantors, either by execution of this Indenture or a Supplemental Indenture, fully and, subject to the provisions of limitations on the effectiveness and enforceability set forth in this Section 10Indenture or such Supplemental Indenture, each Guarantor hereby fullyas applicable, unconditionally and irrevocably guarantees, as primary obligor and not merely as suretyguarantee, on a joint and several basis, basis to each Holder of and to the Notes Trustee and the Trustee Collateral Agent and their respective successors and assigns on behalf of each Holder, the due and punctual full payment of the principal of (and of, premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)interest, if any, on and Additional Amounts, if any, on, and all other monetary obligations of the Notes, when Issuer under this Indenture and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according Notes (including obligations to the Trustee and the Collateral Agent and the obligations to pay Additional Amounts, if any) with respect to, each Note authenticated and delivered by the Trustee or its agent pursuant to and in accordance with this Indenture, in accordance with the terms thereof and of this Indenture and (all other obligations of the Company with respect to foregoing being hereinafter collectively called the Notes to any Holder or the Trustee hereunder or thereunder“Note Obligations”). Each Guarantor agrees The Guarantors further agree that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, the Guarantors and that it will the Guarantors shall remain bound under this Section 10.01 Article Ten notwithstanding any extension or renewal of any Guarantor Note Obligation. All payments under each Note Guarantee shall be made in U.S. dollars.
(fb) Each Guarantor waives presentation toThe Guarantors hereby agree that their obligations hereunder shall be as if they were each principal debtor and not merely surety, unaffected by, and irrespective of, any invalidity, irregularity or unenforceability of any Note or this Indenture, any failure to enforce the provisions of any Note or this Indenture, any waiver, modification or indulgence granted to the Issuer with respect thereto by the Holders or the Trustee, or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor (except payment in full); provided that notwithstanding the foregoing, no such waiver, modification, indulgence or circumstance shall without the written consent of the Guarantors increase the principal amount of a Note or the interest rate thereon or change the currency of payment with respect to any Note, or alter the Stated Maturity thereof. The Guarantors hereby waive diligence, presentment, demand of payment from and protest to payment, filing of claims with a court in the Company event of any merger or bankruptcy of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives Issuer, any right to require that the Trustee pursue or exhaust its legal or equitable remedies against the Issuer prior to exercising its rights under a Note Guarantee (including, for the avoidance of doubt, any resort be had by right which a Guarantor may have to require the seizure and sale of the assets of the Issuer to satisfy the outstanding principal of, interest on or any Holder other amount payable under each Note prior to recourse against such Guarantor or its assets), protest or notice with respect to any security held for payment of Note or the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromiseIndebtedness evidenced thereby and all demands whatsoever, 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein covenant that their Note Guarantee shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 respect to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until except by payment in full of all the Guarantor Obligations principal thereof and interest thereon or such Guarantor is released from its Note Guarantee as otherwise provided in compliance with this Indenture, including Section 5.01 or Section 8.01 hereof10.04. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if If at any time payment, or any part thereof, payment of principal of, premium, if any, interest, if any, or interest Additional Amounts, if any, on any of the Guarantor Obligations such Note is rescinded or must be otherwise be restored by any Holder or returned upon the insolvency, bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance Issuer, the Guarantors’ obligations hereunder with respect to such payment shall be reinstated as of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount date of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on rescission, restoration or returns as though such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith payment had become due and payable by but had not been made at such Guarantor for the purposes of this Note Guaranteetimes.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Note Guarantees. (a) Subject to The Parent and the provisions of this Section 10Subsidiary Guarantors hereby unconditionally guarantee, each Guarantor hereby fully, unconditionally on a senior unsecured basis and irrevocably guarantees, as primary obligor and not merely as surety, on a joint jointly and several basisseverally with each other Note Guarantor, to each Holder of the Notes and the Trustee the due full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of (and of, premium, if any) , and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations and liabilities of the Company with respect Issuers under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Notes to Issuers or any Holder Note Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) and any and all costs (including reasonable counsel fees and expenses) Incurred by the trustee or the Trustee hereunder or thereunderHolders in enforcing any rights under the Note Guarantees (all the foregoing being hereinafter collectively called the “Obligations”). Each Guarantor agrees that The Obligations of Note Guarantors under the Guarantor Obligations Note Guarantee will rank equally in right of payment with other Indebtedness of such GuarantorNote Guarantors, except to the extent such other Indebtedness is subordinate expressly subordinated to the Guarantor Obligations, in which case the obligations of the Guarantors arising under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Guarantees. Each Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will shall remain bound under this Section 10.01 Article X notwithstanding any extension or renewal of any Guarantor Obligation.
(f) . Each Note Guarantor waives presentation to, demand of payment from and protest to the Company Issuers of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Note Guarantor waives notice of any default under the Notes or the Obligations. The obligations of each Note Guarantor Obligations.
hereunder shall not be affected by (ga) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Note Guarantor; or (f) any change in the ownership of the Company. Each Note Guarantor further agrees that its Note Guarantee herein constitutes a guarantee Note Guarantee of payment when due (and not a guarantee Note Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the . The obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations obligations of each Note Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturityagreement, by acceleration or otherwise; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations Obligations, or (h) 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 Note Guarantor or would otherwise operate as a discharge of such Note Guarantor as a matter of law or equity.
(i) . Each Note Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Note Guarantor is released from its Note Guarantee upon the merger or the sale of all the Capital Stock or assets of the Note Guarantor in compliance with Section 5.01 10.2 or Section 8.01 hereofotherwise in accordance with the terms of this Indenture. Each Note Guarantor further agrees that its Note 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, premium, if any, of or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) . In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Note Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Note Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) . Each Note Guarantor further agrees that, as between such Note Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Note Guarantor for the purposes of this Note Guarantee.
(l) . Each Note Guarantor also agrees to pay any and all fees, reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.0110.1.
Appears in 1 contract
Note Guarantees. (a) Subject to the provisions of this Section Article 10, each of the Note Guarantors hereby, jointly and severally with each other Note Guarantor hereby fullyand with Holdings, irrevocably and unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several senior unsecured basis (Holdings on an unsecured senior subordinated basis), 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 or the Trustee the due and punctual payment obligations of the Issuers hereunder or thereunder, that: (a) the principal of (and of, premium, if any) , and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, Notes shall be promptly paid in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender for repayment at the option of any Holder redemption or otherwise, according to and interest on the terms thereof overdue principal of and of this Indenture interest on the Notes, if any, if lawful, and all other obligations Obligations of the Company with respect Issuers to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that thereunder whether for payment of principal of, premium, if any, or interest, on the Guarantor Obligations will rank equally in right of payment with Notes and all other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the monetary obligations of the Guarantors Issuers under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in and the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto Notes shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain promptly paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, thereof; and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, each Note Guarantor, together with Holdings as described in Article 11, shall be jointly and severally, obligated to pay the same immediately. Each Note Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Note Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the terms validity, regularity or provisions enforceability of the Notes, the Holdings Guarantee, any Note Guarantee or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuers, Holdings or any Note Guarantor, any action to enforce the same or any other agreement; (d) circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Note Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the release event of any security held by any Holder for insolvency or bankruptcy of the Guarantor Obligations; (e) the failure of any Holder to exercise Issuers, any right or remedy to require a proceeding first against any other Guarantor; (f) any change in the ownership of Issuers, protest, notice and all demands whatsoever and covenants that this Note Guarantee, as the Company; (g) any defaultcase may be, failure or delay, willful or otherwise, in the shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. Each Note Guarantor Obligations also agrees to pay, in addition to the amount stated above, any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or (h) any Holder in enforcing any rights under this Section 10.01. If any Holder or the Trustee is required by any court or otherwise to return to the Issuers, Holdings, the Note Guarantors or any custodian, trustee, liquidator or other act similar official acting in relation to the Issuers, Holdings or thing the Note Guarantors, any amount paid either 509335-1996-14206-13941291 to the Trustee or omission or delay such Holder and this Note Guarantee, to do any other act or thing which may or might the extent theretofore discharged, shall be reinstated in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) full force and effect. Each Note Guarantor agrees that its it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Note Guarantor further agrees that, as between the Note Guarantors and Holdings, 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 Note 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, such obligations (whether or not due and payable) shall forthwith become due and payable by the Note Guarantors for the purpose of this Note Guarantee. The Note Guarantors shall have the right to seek contribution from any non-paying Note Guarantor or Holdings so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantees. Each Note Guarantee herein shall will be a continuing guarantee and shall:
(1) remain in full force and effect until payment in full of all the guaranteed obligations;
(2) subject to Section 10.06(a), be binding upon each such Note Guarantor Obligations or such Guarantor is released from and its successors; and
(3) inure to the benefit of and be enforceable by the Trustee, the Holders and their successors, transferees and assigns. Each Note Guarantee shall remain in compliance with Section 5.01 full force and effect and continue to be effective should any petition be filed by or Section 8.01 hereof. Each against the Issuers, Holdings or any Note Guarantor further agrees that its for liquidation or reorganization, should the Issuers, Holdings or any Note Guarantee herein shall Guarantor become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuers’, Holdings’ or any other Note Guarantor’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time paymentpayment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes, the Holdings Guarantee or Note Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. In case any provision of principal ofany Note Guarantee shall be invalid, premiumillegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 509335-1996-14206-13941291 The Note Guarantee issued by any Note Guarantor shall be a general senior unsecured obligation of such Note Guarantor and shall be pari passu in right of payment with all existing and future Senior Pari Passu Indebtedness of such Note Guarantor, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause . Each payment to be paid, made by a Note Guarantor in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes respect of its Note Guarantee hereinshall be made without set-off, notwithstanding any staycounterclaim, injunction reduction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event diminution of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether kind or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guaranteenature.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Sources: Indenture (Realogy Holdings Corp.)
Note Guarantees. (ai) Subject to the provisions of this Section 10Article X, each Guarantor hereby fully, unconditionally and irrevocably guaranteesGuarantor, as primary obligor and not merely as a surety, jointly and severally, unconditionally, on a joint senior basis and several basissubject to any limitations set out in any supplemental indenture, guarantees to each Holder of a Note authenticated and delivered by the Trustee (or the Authenticating Agent), to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes and or the Trustee the due and punctual payment obligations of the Issuers hereunder or thereunder, that:
A. the principal of (of, Additional Amounts and premium, if any) , and interest (includingon, the Notes will be promptly paid in case of defaultfull when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal andof and interest, to the extent permitted by applicable law, on overdue interest Additional Amounts and including any additional interest required to be paid according to the terms of the Notes)premium, if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that and all other obligations of the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest Issuers to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes Holders or the Guarantor Obligations.Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) B. in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when 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. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(ii) To the extent permitted by the applicable law, each Guarantor hereby agrees that its obligations hereunder are unconditional, irrespective of the terms validity, regularity or provisions enforceability of the Notes or this Indenture, the absence of any action or any delay or omission to assert any claim or to demand or enforce any remedy hereunder or thereunder, any waiver, surrender, release or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuers, any action to enforce the same or any other agreement; (d) 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 release event of any security held by any Holder for insolvency or bankruptcy of the Guarantor Obligations; (e) the failure of any Holder to exercise Issuers, any right or remedy to require a proceeding first against any other Guarantor; (f) any change in the ownership of the Company; (g) any defaultIssuers, failure or delayprotest, willful or otherwise, in the notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged except by complete performance of the Guarantor Obligations or (h) any other act or thing or omission or delay to do any other act or thing which may or might obligations contained in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equityNotes and this Indenture.
(iiii) If any Holder or the Trustee is required by any court or otherwise to return to or for the benefit of the Issuers, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or the Guarantors, any amount paid by either the Issuers or the Guarantors to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(iv) Each Guarantor agrees that its Note Guarantee herein shall remain it will not be entitled to any right of subrogation in full force and effect relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantorthe Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) A. the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI hereof for the purposes of its this Note Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) B. in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article VI, such Guarantor Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by such Guarantor the Guarantors for the purposes purpose of this Note Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.
(lv) Each Guarantor also agrees to pay any and all fees, costs and expenses (including properly incurred attorneys’ fees fees, disbursements and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01Section.
Appears in 1 contract
Sources: Indenture (Ferroglobe PLC)
Note Guarantees. (a) Subject to the provisions of this Section 10Article Ten, each Guarantor hereby fullyof the Subsidiary Guarantors hereby, jointly and severally, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, 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 or the Trustee the due and punctual payment obligations of the Company hereunder or thereunder, that: (a) the principal of (and of, premium, if any) , and interest (includingon the Notes will be promptly paid in full when due, in case of defaultwhether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal andof, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)premium, if any, and interest on the Notes, when and as the same shall become due and payableif any, whether at Stated Maturityif lawful, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations thereunder will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain promptly paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, thereof; and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the terms validity, regularity or provisions enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other agreement; (d) the release circumstance which might otherwise constitute a legal or equitable discharge or defense of any security held by any Holder for the a guarantor. Each Subsidiary Guarantor Obligations; (e) the failure hereby waives diligence, presentment, demand of any Holder to exercise any right or remedy against any other Guarantor; (f) any change payment, filing of claims with a court in the ownership event of insolvency or bankruptcy of the Company; (g) , any defaultright to require a proceeding first against the Company, failure or delayprotest, willful or otherwise, in notice and all demands whatsoever and covenant that the Note Guarantee shall not be discharged except by complete performance of the Guarantor Obligations obligations contained in the Notes and this Indenture or (h) pursuant to Section 10.03. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Subsidiary Guarantors or any custodian, trustee, liquidator or other act similar official acting in relation to either the Company or thing the Subsidiary Guarantors, any amount paid by either to the Trustee or omission or delay such Holder, the Note Guarantee, to do any other act or thing which may or might in any manner or to any the extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein theretofore discharged, shall remain be reinstated in full force and effect effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Subsidiary Guarantor further agrees that, as between such Guarantorthe Subsidiary Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article Six for the purposes of its the Note Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article Six, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor the Subsidiary Guarantors for the purposes purpose of this the Note Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Note Guarantees. (a) Subject to the provisions of this Section Article 10, each Guarantor hereby fullyof the Guarantors hereby, jointly and severally, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, 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 held thereby and the Trustee the due and punctual payment Obligations of the Company hereunder and thereunder, that: (a) the principal of (of, and premiuminterest, if any) premium and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)Special Interest, if any, on on, the NotesNotes will be promptly paid in full when due, when and as the same shall become due and payablesubject to any applicable grace period, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender for repayment at the option of any Holder repurchase or redemption or otherwise, according to and interest on the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantoroverdue principal of, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtednesspremium, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that interest and Special Interest, if any, on, the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from itNotes, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal all other payment Obligations of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest the Company to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes Holders or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (Trustee hereunder or thereunder will be promptly paid in full and not a guarantee of collection) performed, all in accordance with the terms hereof and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, thereof; 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in 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 acceleration, upon repurchase or redemption or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when so due of any amount so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Note Guarantees, and shall entitle the Holders to accelerate the obligations of the terms 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 provisions enforceability of the Notes or this Indenture, the Notes 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 agreement; circumstance (dother than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor further, to the release extent permitted by law, hereby waives diligence, presentment, demand of any security held by any Holder for the Guarantor Obligations; (e) the failure payment, filing of any Holder to exercise any right or remedy against any other Guarantor; (f) any change claims with a court in the ownership event of insolvency or bankruptcy of the Company; (g) , any defaultright to require a proceeding first against the Company, failure or delayprotest, willful or otherwise, in the performance of the Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees notice and all demands whatsoever and covenants that its Note Guarantee herein shall remain will not be discharged except by complete performance of the Obligations contained in full force the Notes and effect until payment in full of all this Indenture. If any Holder or the Guarantor Obligations Trustee is required by any court or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note Guarantee herein shall continue otherwise to be effective or be reinstatedreturn to the Company, as the case may be, if at any time paymentGuarantors, or any part thereofCustodian, of principal of, premium, if any, Trustee or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not other similar official acting in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating relation to the Company or any of the Guarantors, any amount paid by the Company or any Guarantor whether to the Trustee or such Holder, the Note Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not a claim for postfiling or post-petition interest is allowed be entitled to, and hereby waives, any right of subrogation in such proceeding).
(k) relation to the Holders in respect of any Obligations guaranteed hereby. Each Guarantor further agrees that, as between such Guarantorthe Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (xa) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture Article 6 hereof for the purposes of its Note Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby thereby, and (yb) in the event of any such declaration of acceleration of such Guarantor ObligationsObligations as provided in Article 6 hereof, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such the Guarantor for the purposes purpose of this its Note Guarantee.
(l) Each . The Guarantors shall have the right to seek contribution from any non-paying Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by so long as the Trustee or exercise of such right does not impair the rights of the Holders in enforcing any rights under this Section 10.01the Note Guarantees.
Appears in 1 contract
Note Guarantees. (a) Subject to the provisions of this limitations set forth in Section 1016.06, each Guarantor hereby fullythe Guarantors hereby, jointly and severally, unconditionally and irrevocably guaranteesGuarantee, as primary obligor and not merely as surety, on a joint and several basis, to each Holder Holder, the Trustee, the Collateral Agent and their respective successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes and or the Trustee Obligations of the due and punctual payment of Company hereunder or thereunder, that: (a) the principal of (and premium, if any) , and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)interest, if any, on the NotesNotes (including interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceedings), shall be promptly paid in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon by acceleration, redemption, upon acceleration, upon tender for repayment at the option of any Holder required purchase or repurchase or otherwise, according to and interest on the terms thereof overdue principal of and of this Indenture interest on premium, if any, and interest, if any, if lawful, and all other obligations of the Company with respect to the Notes to any Holder or Holders, the Trustee and the Collateral Agent hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto thereunder shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain promptly paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, thereof; and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration acceleration, redemption, required purchase or repurchase or otherwise; (c) . Failing payment when due, subject to any rescissionapplicable grace period, waiver, amendment or modification of any amount so Guaranteed or any performance so Guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the terms validity, legality, regularity or provisions enforceability of the Notes or this Indenture, the Notes 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 or any Guarantor, any action to enforce the same or any other agreement; (d) circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives, to the release fullest extent permitted by applicable law, diligence, presentment, demand of any security held by any Holder for the Guarantor Obligations; (e) the failure payment, filing of any Holder to exercise any right or remedy against any other Guarantor; (f) any change claims with a court in the ownership event of insolvency or bankruptcy of the Company; (g) , any defaultright to require a proceeding first against the Company or another Guarantor, failure protest, notice and all demands whatsoever and covenant that the Note Guarantees shall not be discharged except by payment in full or delay, willful or otherwise, conversion in the performance full of the Guarantor Obligations Notes in accordance with this Indenture. If any Holder or (h) the Trustee is required by any court or otherwise to return to the Company or any of the Guarantors, or any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law or other act similar official acting in relation to either the Company or thing or omission or delay any of the Guarantors, any amount paid either to do any other act or thing which may or might in any manner the Trustee or to any such Holder, the Note Guarantees, to the extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that its Note Guarantee herein it shall remain not be entitled to any right of subrogation in full force and effect relation to the Holders in respect of any obligations Guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations Guaranteed hereby. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantorthe Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed obligations Guaranteed hereby may be accelerated as provided in this Indenture Article 6 for the purposes of its the Note Guarantee hereinGuarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed obligations Guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article 6, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor the Guarantors for the purposes purpose of this the Note Guarantee.
(l) Each Guarantees. The Guarantors shall have the right to seek contribution from any non-paying Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by so long as the exercise of such right does not impair the rights of the Trustee or the Holders in enforcing any rights under this Section 10.01the Note Guarantees.
Appears in 1 contract
Sources: Indenture (Bloom Energy Corp)
Note Guarantees. (a) Subject to the provisions of this Section 10Article VIII, each Guarantor hereby fullyof the Guarantors hereby, jointly and severally, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder Noteholder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Note Purchase Agreement, the Notes and or the Trustee the due and punctual payment obligations of the Company hereunder or thereunder, that: (a) the principal of (and premiumof, if any) premium and interest (includingon the Notes shall be promptly paid in full when due, in case of defaultwhether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal andof, to the extent permitted by applicable law, premium and interest on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notesif lawful, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder Noteholder or the Trustee hereunder or thereunder. Each Guarantor agrees that under this Note Purchase Agreement and the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto Notes shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain promptly paid in full force or performed, all in accordance with the terms of this Note Purchase Agreement and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, ; and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration or otherwise; (c) . Failing payment when due of any rescissionamount so guaranteed or any performance so guaranteed for whatever reason, waiverthe Guarantors shall be jointly and severally obligated to pay the same immediately. The Guarantors hereby agree that their obligations hereunder shall be unconditional, amendment irrespective of the validity, regularity or modification enforceability of the Notes or this Note Purchase Agreement, the absence of any action to enforce the same, any waiver or consent by any Noteholder with respect to any provisions of this Note Purchase Agreement and the Notes, 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 covenant that the Note Guarantees shall not be discharged except by complete performance of the obligations contained in the Notes and this Note Purchase Agreement. The Notes also shall be guaranteed in the future as required by Section 4.12 and/or 4.13. If any Noteholder or the Trustee is required by any court or otherwise to return to the Company or Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to the Company or any of the terms Guarantors, any amount paid by either to the Trustee or provisions of this Indenturesuch Noteholder, these Guarantees, to the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change extent theretofore discharged, shall be reinstated in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) full force and effect. Each Guarantor agrees that its Note Guarantee herein it shall remain not be entitled to any right of subrogation in full force and effect relation to the Noteholders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantorthe Guarantors, on the one hand, and the HoldersNoteholders and Trustee, on the other hand, (x) the maturity of the Guarantor Obligations like obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI hereof for the purposes of its these Note Guarantee hereinGuarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article VI hereof, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor the Guarantors for the purposes purpose of this these Note GuaranteeGuarantees. 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 Noteholders under these Note Guarantees.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Sources: Indenture and Note Purchase Agreement (Cenveo, Inc)
Note Guarantees. (a) Subject Pursuant to the provisions of this Section 10Note Guarantees, each Guarantor the Guarantors hereby fully, fully and unconditionally and irrevocably guarantees, as primary obligor and not merely as suretyGuarantee, on a an unsecured, senior, joint and several basis, to each Holder of the Notes and to the Trustee and its successors and assign on behalf of each Holder, the due and punctual full payment of the principal of (and of, premium, if any) , and interest (includingon, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other monetary obligations of the Company under this Indenture and the Notes (including obligations to the Trustee) with respect to the Notes to any Holder or each Note authenticated and delivered by the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally its agent pursuant to and in right of payment accordance with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligationsthis Indenture, in which case accordance with the obligations terms of the this Indenture. The Guarantors under further agree that the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, the Guarantors and that it will the Guarantors shall remain bound under this Section 10.01 Article Ten notwithstanding any extension or renewal of any Guarantor ObligationNote Guarantee. All payments under such Note Guarantee shall be made in U.S. dollars.
(fb) Each Guarantor waives presentation toThe Guarantors hereby agree that their obligations hereunder shall be as if they were principal debtor and not merely surety, unaffected by, and irrespective of, any validity, irregularity or unenforceability of any Note or this Indenture, any failure to enforce the provisions of any Note or this Indenture, any waiver, modification or indulgence granted to the Company with respect thereto by the Holders or the Trustee, or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor (except payment in full); provided, however, that, notwithstanding the foregoing, no such waiver, modification, indulgence or circumstance shall without the written consent of the Guarantors increase the principal amount of a Note or the interest rate thereon or change the currency of payment with respect to any Note, or alter the Stated Maturity thereof. The Guarantors hereby waive diligence, presentment, demand of payment from and protest to payment, filing of claims with a court in the Company event of any merger or bankruptcy of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives Company, any right to require that the Trustee pursue or exhaust its legal or equitable remedies against the Company prior to exercising its rights under the Note Guarantee (including, for the avoidance of doubt, any resort be had by right which the Guarantors may have to require the seizure and sale of the assets of the Company to satisfy the outstanding principal of, interest on or any Holder other amount payable under each Note prior to recourse against the Guarantors or their assets), protest or notice with respect to any security held for payment of Note or the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromiseIndebtedness evidenced thereby and all demands whatsoever, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of covenant that the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein Note Guarantee shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 respect to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until except by payment in full of all the Guarantor Obligations principal thereof and interest thereon or such Guarantor is released from its Note Guarantee as otherwise provided in compliance with Section 5.01 or Section 8.01 hereofthis Indenture, including Sections 10.3 and 10.5. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if If at any time payment, or any part thereof, payment of principal of, premium, if any, or interest interest, if any, on any of the Guarantor Obligations such Note is rescinded or must be otherwise be restored by any Holder or returned upon the insolvency, bankruptcy or reorganization of the Company or otherwise, the Guarantors’ obligations hereunder with respect to such payment shall be reinstated as of the date of such rescission, restoration or returns as though such payment had become due but had not been made at such times.
(jc) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor The Guarantors also agrees agree to pay any and all fees, costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or the Holders any Holder in enforcing any rights under this Section 10.0110.1.
Appears in 1 contract
Sources: Indenture (Sealed Air Corp/De)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Guarantor hereby fullyjointly and severally, unconditionally and irrevocably guaranteesguarantees the Notes and obligations of the Issuer hereunder and thereunder, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder of the Notes a Note authenticated and delivered by the Trustee and to the due and punctual payment Trustee on behalf of such Holder, that: (i) the principal of (and premium, if any) any and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes shall be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender call for repayment at redemption or otherwise (including the option amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), together with interest on the overdue principal, if any, and interest on any Holder or otherwiseoverdue interest, according to the terms thereof and of this Indenture extent lawful, and all other obligations of the Company with respect Issuer to the Notes to any Holder Holders, the Trustee or the Trustee Collateral Agent hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto thereunder shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
thereof and (d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification of any . Each of the terms Note Guarantees shall be a guarantee of payment and not of collection.
(b) Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or provisions enforceability of the Notes or this Indenture, the Notes 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 agreement; circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(dc) Each Guarantor hereby waives the release benefits of any security held by any Holder diligence, presentment, demand for payment, filing of claims with a court in the Guarantor Obligations; (e) event of insolvency or bankruptcy of the failure of any Holder to exercise Company, any right to require a proceeding first against the Company or remedy any other Person, protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note and such Note Guarantee or as provided for in this Indenture. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal or premium, if any or interest on such Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce such Guarantor’s Note Guarantee without first proceeding against the Company or 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) . Each Guarantor agrees that its if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
(d) If any Holder, the Trustee or the Collateral Agent is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or any Guarantor, any amount paid by any of them to the Trustee, the Collateral Agent or such Holder, the Note Guarantee herein of each of the Guarantors, to the extent theretofore discharged, shall remain be reinstated in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofeffect. Each Guarantor further agrees that its Note Guarantee herein This paragraph (d) shall continue to remain effective notwithstanding any contrary action which may be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand taken by the Trustee, forthwith pay, the Collateral Agent or cause any Holder in reliance upon such amount required to be paid, in cash, to returned. This paragraph (d) shall survive the Holders or the Trustee on behalf termination of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding)this Indenture.
(ke) Each Guarantor further agrees that, as between such each Guarantor, on the one hand, and the Holders, Trustee and the Collateral Agent, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI hereof for the purposes of its the Note Guarantee hereinof such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article VI hereof, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Guarantor for the purposes purpose of this the Note GuaranteeGuarantee of such Guarantor.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Note Guarantees. (a) Subject to the provisions of this Section 10Article VII, each Guarantor the Guarantors hereby fully, irrevocably and unconditionally guarantee, jointly and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basisseverally, to each Holder and to the Trustee and the Authorized Agents the full and punctual payment (whether at an installment date or the Maturity Date, upon redemption, purchase pursuant to an offer to purchase or acceleration or otherwise) of the Notes principal, premium (if any) or interest, and any other amounts that may come due and payable under each Note and the Trustee the due full and punctual payment of all other amounts payable by the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of Issuer under this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees as they come due, provided that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject limited to the maximum amount as shall, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any reduction, limitation, impairment collections from or termination for payments made by or on behalf of any reason (other than payment Guarantor in respect of the obligations of such other Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration under its Note Guarantee or compromise, and shall not be subject pursuant to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person its contribution obligations under this Indenture, result in such obligations not constituting a fraudulent conveyance, fraudulent transfer or similar illegal transfer under Applicable Law. Upon failure by the Notes or Issuer to pay punctually any other agreement or otherwise; (b) such amount, each of the Guarantors shall, without duplication, forthwith pay the amount not so paid at the place and time and in case the manner specified in this Indenture. This Note Guarantee constitutes a direct, joint and several, and unconditional primary obligation of any extension of time each Guarantor that will be secured on first-priority basis and at all times rank at least pari passu in right of payment or renewal of with any Notes or any existing and future senior Indebtedness of such other obligationsGuarantor, that the same will except for such obligations as may be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, preferred by acceleration or otherwise; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenturelaw that are both mandatory and of general application, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Company; (g) any defaultincluding without limitation, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force tax and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereoflabor claims. Each Guarantor further hereby agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, addition to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvencyamounts stated above, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, indemnity amounts and reasonable and documented costs and expenses (including attorneys’ reasonable and documented counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under any Note Guarantee. Each of the Guarantors hereby unconditionally and irrevocably waives all benefits applicable thereto to the fullest extent possible under existing law for this Section 10.01Note Guarantee to be joint and several with the obligations of the Issuer.
Appears in 1 contract
Sources: Indenture (Auna S.A.)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Note Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint jointly and several basisseverally with each other Note Guarantor, to each Holder of the Notes and the Trustee the due full and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payabledue, whether at Stated Maturitymaturity, upon redemption, upon by acceleration, upon tender for repayment at the option of any Holder by redemption or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to Obligations (such guaranteed Obligations, the Notes to any Holder or the Trustee hereunder or thereunder“Guaranteed Obligations”). Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 Article X notwithstanding any extension or renewal of any Obligation. Each Note Guarantor Obligationhereby agrees to pay, in addition to the amounts stated above, any and all expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under any Note Guarantee.
(fb) Each Note Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Note Guarantor waives notice of any default under the Notes or the Obligations. The obligations of each Note Guarantor Obligationshereunder shall not be affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (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 Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Note Guarantor; or (vi) any change in the ownership of the Company.
(gc) Each Note Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(hd) Except as set forth in Section 10.04, the The obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations obligations of each Note Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturityagreement, by acceleration or otherwise; (c) any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenturethereof, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations Obligations, or (h) 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 such Note Guarantor or would otherwise operate as a discharge of such Note Guarantor as a matter of law or equity.
(ie) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, of or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(jf) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any each Note Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Note Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of of:
(i) the unpaid amount of such Guarantor Obligations then due and owing and owing; and
(ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(kg) Each Note Guarantor further agrees that, as between such Note Guarantor, on the one hand, and the Holders, on the other hand, :
(xi) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and hereby; and
(yii) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Note Guarantor for the purposes of this its Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Sources: Indenture (Coleman Cable, Inc.)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Guarantor hereby fullyjointly and severally, unconditionally and irrevocably guaranteesguarantees the Notes and obligations of the Issuer hereunder and thereunder, as primary obligor and not merely as surety, on a joint and several basis, guarantees to each Holder of the Notes a Note authenticated and delivered by the Trustee and to the due and punctual payment Trustee on behalf of such Holder, that: (i) the principal of (and premium, if any) any and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes shall be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender call for repayment at redemption or otherwise (including the option amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), together with interest on the overdue principal, if any, and interest on any Holder or otherwiseoverdue interest, according to the terms thereof and of this Indenture extent lawful, and all other obligations of the Company with respect Issuer to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto thereunder shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
thereof; and (d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification of any . Each of the terms Note Guarantees shall be a guarantee of payment and not of collection.
(b) Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or provisions enforceability of the Notes or this Indenture, the Notes 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 agreement; circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(dc) Each Guarantor hereby waives the release benefits of any security held by any Holder diligence, presentment, demand for payment, filing of claims with a court in the Guarantor Obligations; (e) event of insolvency or bankruptcy of the failure of any Holder to exercise Company, any right to require a proceeding first against the Company or remedy any other Person, protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note and such Note Guarantee or as provided for in this Indenture. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal or premium, if any or interest on such Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce such Guarantor’s Note Guarantee without first proceeding against the Company or 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) . Each Guarantor agrees that its if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or any Guarantor, any amount paid by any of them to the Trustee or such Holder, the Note Guarantee herein of each of the Guarantors, to the extent theretofore discharged, shall remain be reinstated in full force and effect until payment effect. This paragraph (d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in full of all the Guarantor Obligations or reliance upon such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note Guarantee herein shall continue amount required to be effective or be reinstated, as returned. This paragraph (d) shall survive the case may be, if at any time payment, or any part thereof, termination of principal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwisethis Indenture.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(ke) Each Guarantor further agrees that, as between such each Guarantor, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article VI hereof for the purposes of its the Note Guarantee hereinof such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article VI hereof, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Guarantor for the purposes purpose of this the Note GuaranteeGuarantee of such Guarantor.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Note Guarantees. (a) Subject From and after the Issue Date and prior to the provisions of this Section 10, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, date on a joint and several basis, to each Holder which all of the Company’s 4.125% Senior Notes and the Trustee the due and punctual payment of the principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, 2024 that are outstanding on the NotesIssue Date have been repaid, when repurchased in full or otherwise satisfied and as the same shall become due discharged and payableare no longer outstanding, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder will not cause or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
permit (bi) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason Subsidiaries (other than payment of the a Guarantor Obligations in fullor a Majority Owned JV), including directly or indirectly, to guarantee 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company capital markets Indebtedness or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case unsecured credit facility of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling (ii) any Majority Owned JV, directly or post-petition interest is allowed indirectly, to guarantee any capital markets Indebtedness or any unsecured credit facility of the Company, in such proceeding).
(k) Each Guarantor further agrees thateach case, as between such Guarantor, on with an aggregate principal amount in excess of the one hand, and the Holders, on the other hand, greater of (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby $150.0 million and (y) 2.0% of Total Assets, unless such Subsidiary:
(a) within 20 Business Days of the date on which it guarantees such Indebtedness of the Company or any Guarantor executes and delivers to the Trustee a supplemental indenture pursuant to which such Subsidiary shall guarantee (each, a “Note Guarantee”) all of the Company’s obligations under the Notes and this Indenture and other terms contained in the applicable supplemental indenture and subject to the conditions contained in such supplemental indenture; and
(b) delivers to the Trustee an Officers’ Certificate that all conditions precedent to the execution of such indenture have been complied with. Thereafter, such Subsidiary shall be a Guarantor for all purposes of this Indenture until such Note Guarantee is released in accordance with the provisions of this Indenture. In the event of a sale or other transfer or disposition of all of the Capital Stock in any Guarantor to any Person that is not an Affiliate of the Company in compliance with the terms of this Indenture, or in the event all or substantially all the assets or Capital Stock of a Guarantor are sold or otherwise transferred, by way of merger, consolidation or otherwise, to a Person that is not an Affiliate of the Company in compliance with the terms of this Indenture, then, without any such declaration further action on the part of acceleration of such Guarantor Obligationsthe Trustee or any Holder, such Guarantor Obligations (whether or not due and payablethe Person concurrently acquiring such assets of such Guarantor) shall forthwith become due be deemed automatically and payable unconditionally cancelled, released and discharged of any obligations under its Note Guarantee, as evidenced by a supplemental indenture, written instrument or confirmation executed by the Trustee, upon request; provided, however that if evidence of such Guarantor for cancellation, discharge or release is requested to be executed by the purposes Trustee, an Officers’ Certificate and an Opinion of Counsel complying with Section 1301 of this Indenture. In addition, upon the release or discharge of any guarantee which resulted in the creation of a Note Guarantee (except a discharge or release by or as a result of payment under such guarantee), the Guarantor of such Note Guarantee shall be deemed automatically and unconditionally cancelled, released and discharged of any obligations under its Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred as evidenced by a supplemental indenture, written instrument or confirmation executed by the Trustee Trustee, upon request. The Company may cause any other Subsidiary of the Company to issue a Note Guarantee and become a Guarantor. Each Note Guarantee by a Subsidiary will be limited to an amount not to exceed the maximum amount that can be guaranteed by that Subsidiary without rendering the Note Guarantee, as it relates to such Subsidiary, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the Holders in enforcing any rights under this Section 10.01of creditors generally.
Appears in 1 contract
Sources: Indenture (Aircastle LTD)
Note Guarantees. (a) Subject to the provisions of this Section 10, each Each Guarantor hereby jointly and severally, fully, unconditionally and irrevocably guaranteesguarantees the Notes and obligations of the Company hereunder and thereunder, as primary obligor and not merely as suretythe obligations of each other Guarantor hereunder and thereunder, on a joint and several basis, guarantees to each Holder of the Notes a Note authenticated and delivered by the Trustee and to the due and punctual payment Trustee on behalf of such Holder, that: (a) the principal of (and premiumpremium and Liquidated Damages, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to Notes will be paid according to the terms of the Notes), if any, on the Notes, in full when and as the same shall become due and payabledue, whether at Stated Maturity, upon redemption, upon by acceleration, upon tender call for repayment at redemption or otherwise (including, without limitation, the option amount that would become due but for the operation of the automatic stay under Section 362(a) of the Federal Bankruptcy Code), together with interest on the overdue principal, if any, and interest on any Holder or otherwiseoverdue interest, according to the terms thereof and of this Indenture extent lawful, and all other obligations of the Company with respect to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations thereunder will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain paid in full force or performed, all in accordance with the terms hereof and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, thereof; and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (c) any rescission, waiver, amendment or modification of any . Each of the terms Note Guarantees shall be a guarantee of payment and not of collection. Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or provisions enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other agreement; (d) circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives the release benefits of any security held by any Holder diligence, presentment, demand for payment, filing of claims with a court in the Guarantor Obligations; (e) event of insolvency or bankruptcy of the failure of any Holder to exercise Company, any right to require a proceeding first against the Company or remedy any other Person, protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Guarantor will not be discharged as to any Note except by complete performance of the obligations contained in such Note and such Note Guarantee or as provided for in this Indenture. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal (or premium or Liquidated Damages, if any) or interest on such Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce such Guarantor's Note Guarantee without first proceeding against the Company or 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) . Each Guarantor agrees that its Note Guarantee herein shall remain in full force if, after the occurrence and effect until payment in full during the continuance of all an Event of Default, the Guarantor Obligations Trustee or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored Holders are prevented by any Holder upon applicable law from exercising their respective rights to accelerate the bankruptcy or reorganization maturity of the Company Notes, to collect interest on the Notes, or otherwise.
(j) In furtherance of the foregoing and not in limitation of to enforce or exercise any other right which any Holder has at law or in equity against any remedy with respect to the Notes, such Guarantor by virtue hereofwill pay to the Trustee for the account of the Holders, upon demand therefor, the failure of amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Company to pay Trustee or any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders Holders. 91 100 If any Holder or the Trustee on behalf of the Holders an amount equal is required by any court or otherwise to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating return to the Company or any Guarantor whether Guarantor, or not a claim for postfiling any custodian, trustee, liquidator or post-petition interest is allowed other similar official acting in relation to either the Company or any Guarantor, any amount paid by any of them to the Trustee or such proceeding).
(k) Holder, the Note Guarantee of each of the Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor further agrees that, as between such each Guarantor, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (x) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Article Six hereof for the purposes of its the Note Guarantee hereinof such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby hereby, and (y) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Article Six hereof, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Guarantor for the purposes purpose of this the Note GuaranteeGuarantee of such Guarantor.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Sources: Indenture (Wright Bilt Corp)
Note Guarantees. (a) Subject If the Company or any of its Restricted Subsidiaries acquires or creates any other Domestic Subsidiary or Subsidiaries (other than an Excluded Subsidiary) on or after the date of this Indenture, then each such newly acquired or created Domestic Subsidiary must become a Guarantor and (i) execute a supplemental indenture and (ii) deliver an Opinion of Counsel to the provisions Trustee, in each case, within 30 days of this Section 10the date of such acquisition or creation.
(b) The Company will not permit any of its Restricted Subsidiaries (other than the Issuer), each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basisdirectly or indirectly, to each Holder Guarantee or pledge any assets to secure the payment of any Indebtedness of the Company, the Issuer or any Subsidiary Guarantor (including, but not limited to, any Indebtedness under any Credit Facility) unless such Restricted Subsidiary is a Guarantor or within 30 days executes and delivers a supplemental indenture providing for the Guarantee of the payment of the Notes and the Trustee the due and punctual payment of the principal of (and premiumby such Restricted Subsidiary, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to which Guarantee shall be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any Holder or the Trustee hereunder or thereunder. Each Guarantor agrees that the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such Subsidiary’s Guarantee of such other IndebtednessIndebtedness if such other Indebtedness is subordinated to the Notes or Note Guarantees, and except for claims of creditors that are mandatorily preferred by lawas applicable, in which case the obligations of the Guarantors under the Note Guarantees will rank junior or pari passu in right of payment to with such claims.
(b) To evidence its Note Subsidiary’s Guarantee set forth of such other Indebtedness in this Section 10.01all other instances. In addition, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the event that any Restricted Subsidiary that is an Excluded Subsidiary ceases to be an Excluded Subsidiary, then such Restricted Subsidiary must become a Guarantor and execute a supplemental indenture and deliver an Opinion of Counsel to the Trustee within 30 days of the date of such event. The form of the Supplemental Indenture is attached as Exhibit F hereto) and, in D and the case form of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form Guarantee is attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.E.
(c) Each Guarantor hereby agrees that its Notwithstanding Section 4.11(a), any Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted may provide by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and its terms that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from be automatically and protest to the Company of any of the Guarantor Obligations unconditionally released and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default discharged under the Notes or the Guarantor Obligationscircumstances described under Section 12.08.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise; (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 for the Guarantor Obligations; (e) the failure of any Holder 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 Guarantor Obligations 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 discharge of such Guarantor as a matter of law or equity.
(i) Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereof. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Sources: Indenture (Acco Brands Corp)
Note Guarantees. (a) Subject to the provisions of this Section 10Article 8, each Guarantor hereby fullyof the Guarantors hereby, jointly and severally, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several basis, 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 or the Trustee obligations of the Issuer hereunder or thereunder: (i) the due and punctual payment of the principal of (and premiumprincipal, if any) premium and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes)Additional Interest, if any, on the Notes, Notes shall be promptly paid in full when and as the same shall become due and payabledue, whether at Stated Maturitymaturity, upon redemption, upon by acceleration, upon tender for repayment at the option of any Holder redemption or otherwise, according to (ii) the terms thereof due and punctual payment of this Indenture interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Company with respect Issuer to the Notes to any Holder Holders or the Trustee hereunder or thereunder. Each Guarantor agrees that thereunder shall be promptly paid in full or performed, all in accordance with the Guarantor Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtednessterms hereof and thereof, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees will rank junior in right of payment to such claims.
(b) To evidence its Note Guarantee set forth in this Section 10.01, each Guarantor hereby agrees that this Indenture (or a supplement thereto, substantially in the form attached as Exhibit F hereto) and, in the case of additional Guarantors added pursuant to Section 9.01(i) hereof, a supplement to the Note Guarantee, substantially in the form attached as Exhibit E hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
(c) Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
(d) If an Officer whose signature is on this Indenture (or a supplement thereto) or any notation of Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee of such Note shall be valid nevertheless.
(e) Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Guarantor Obligation.
(f) Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
(g) Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(h) Except as set forth in Section 10.04, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), 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 Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (biii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration pursuant to Section 6.02 hereof or otherwise; (c) any rescission, waiver, amendment or modification . Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a Guarantee of payment and not a Guarantee of collection.
(b) Each Guarantor hereby agrees that its obligations with regard to its Note Guarantee shall be joint and several, unconditional, irrespective of the terms validity or provisions enforceability of the Notes or the obligations of the Issuer under this Indenture, the absence of any action to enforce the same, the recovery of any judgment against the Issuer or any other obligor with respect to this Indenture, the Notes or the obligations of the Issuer under this Indenture or the Notes, any action to enforce the same or any other agreement; circumstances (dother than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor further, to the release extent permitted by law, waives and relinquishes all claims, rights and remedies accorded by applicable law to guarantors and agrees not to assert or take advantage of any such claims, rights or remedies, including but not limited to: (i) any right to require any of the Trustee, the Holders or the Issuer (each a "Benefited Party"), as a condition of payment or performance by such Guarantor, to (A) proceed against the Issuer, any other guarantor (including any other Guarantor) of the obligations under the Note Guarantees or any other person, (B) proceed against or exhaust any security held by from the Issuer, any Holder for such other guarantor or any other person, (C) proceed against or have resort to any balance of any deposit account or credit on the Guarantor Obligationsbooks of any Benefited Party in favor of the Issuer or any other person, or (D) pursue any other remedy in the power of any Benefited Party whatsoever; (eii) any defense arising by reason of the failure incapacity, lack of authority or any Holder to exercise disability or other defense of the Issuer including any right defense based on or remedy against arising out of the lack of validity or the unenforceability of the obligations under the Note Guarantees or any agreement or instrument relating thereto or by reason of the cessation of the liability of the Issuer from any cause other Guarantorthan payment in full of the obligations under the Note Guarantees; (fiii) any change defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (iv) any defense based upon any Benefited Party's errors or omissions in the ownership administration of the Companyobligations under the Note Guarantees, except behavior which amounts to bad faith; (gv)
(A) any defaultprinciples or provisions of law, failure or delay, willful statutory or otherwise, which are or might be in conflict with the terms of the Note Guarantees and any legal or equitable discharge of such Guarantor's obligations hereunder, (B) the benefit of any statute of limitations affecting such Guarantor's liability hereunder or the enforcement hereof, (C) any rights to set-offs, recoupments and counterclaims and (D) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (vi) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Note Guarantees, notices of default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification of the obligations under the Note Guarantees or any agreement related thereto, and notices of any extension of credit to the Issuer and any right to consent to any thereof; (vii) to the extent permitted under applicable law, the benefits of any "One Action" rule and (viii) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the Note Guarantees. Except as set forth in Section 8.05, each Guarantor hereby covenants that its Note Guarantee shall not be discharged except by complete performance of the Guarantor Obligations or (h) any other act or thing or omission or delay to do any other act or thing which may or might obligations contained in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equityits Note Guarantee and this Indenture.
(ic) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid to either the Trustee or such Holder, any Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(d) Each Guarantor agrees that its Note Guarantee herein it shall remain not be entitled to any right of subrogation in full force and effect relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01 or Section 8.01 hereofobligations guaranteed hereby. Each Guarantor further agrees that its Note 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, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(j) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for postfiling or post-petition interest is allowed in such proceeding).
(k) Each Guarantor further agrees that, as between such Guarantorthe Guarantors, on the one hand, and the HoldersHolders and the Trustee, on the other hand, (xi) the maturity of the Guarantor Obligations obligations guaranteed hereby may be accelerated as provided in this Indenture Section 6.02 hereof for the purposes of its any Note Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations obligations guaranteed hereby and (yii) in the event of any such declaration of acceleration of such Guarantor Obligationsobligations as provided in Section 6.02 hereof, such Guarantor Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor the Guarantors for the purposes purpose of this any such Note Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the applicable Note Guarantee.
(l) Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
Appears in 1 contract
Sources: Indenture (A 1 Homes Group Inc)