Subsidiary Guarantee. Subject to this Article 10, the Guarantors hereby unconditionally guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns: (a) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace period, whether at Stated Maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, to the extent permitted by law, interest, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the Notes, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same 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 pursuant to Section 6.02, redemption or otherwise. 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. (1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the purposes of this Subsidiary 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 Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 3 contracts
Sources: Indenture (Centene Corp), Indenture (Centene Corp), Indenture (Centene Corp)
Subsidiary Guarantee. Subject to this Article 10Section 10.06 hereof, the Guarantors hereby hereby, jointly and severally, unconditionally 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 and enforceability of this Indenture, the Notes held thereby and the Obligations of the Company hereunder and thereunder, that: (a) the due principal of and punctual payment of the principal ofpremium, premiuminterest and Liquidated Damages, if any, and interest on the NotesNotes will be promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and principal, premium, if any, and, (to the extent permitted by law) interest and Liquidated Damages, interestif any, on the Notes, and the due and punctual performance of all other obligations payment Obligations of the Company to the Holders or the Trustee under this Indenture hereunder or thereunder will be promptly paid in full and the Notesperformed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same shall 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 pursuant to Section 6.02acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, reason the Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Notes shall constitute an event of payment default under the Subsidiary Guarantees, and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with shall entitle the terms Holders to accelerate the Obligations of the Subsidiary Guarantees Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of such a Guarantor’s obligations hereunder. Each Guarantor further, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable by law, hereby waives diligence, presentment, demand of payment, filing of claims with a court in the benefits event of any “One Action” rule and (h) any defenses insolvency 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 bankruptcy of the Subsidiary Guarantees. Except Company, any right to require a proceeding first against the extent expressly provided hereinCompany, including Sections 8.02protest, 8.03 notice and 10.05, each Guarantor hereby all demands whatsoever and covenants that its this Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in its Subsidiary Guarantee the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Guarantors, or any custodianCustodian, trustee, liquidator Trustee or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either the Company or any Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this its Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby thereby, and (yb) in the event of any declaration of acceleration of such obligations Obligations as provided in Section 6.02 Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose of this its Subsidiary 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 Subsidiary GuaranteeGuarantees.
Appears in 3 contracts
Sources: Indenture (Trico Marine Services Inc), Indenture (Trico Marine Services Inc), Indenture (Trico Marine Services Inc)
Subsidiary Guarantee. Subject to this Article 10, each of the Subsidiary Guarantors hereby hereby, jointly and severally, unconditionally guarantee 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 or the obligations of the Issuers hereunder or thereunder, that: (a) the due and punctual payment principal of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodNotes will be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest on the Notes, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations of the Company Issuers to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall 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 pursuant to Section 6.02, redemption or otherwise. 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.
(1) any principles or provisions of law. The Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and 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 Issuers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor’s obligations hereundera guarantor. Each Subsidiary Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesIssuers, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawIssuers, the benefits of any “One Action” rule protest, notice and (h) any defenses or benefits all demands whatsoever and covenant 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuers or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 2 contracts
Sources: Indenture (Anthony Crane Sales & Leasing Lp), Indenture (Anthony Crane Holdings Capital Corp)
Subsidiary Guarantee. (a) Subject to the provisions of this Article 10IX, the Guarantors each Subsidiary Guarantor hereby jointly and severally unconditionally guarantee 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 or the obligations of the Company or any other Subsidiary Guarantor to the Holders or the Trustee hereunder or thereunder, that: (ai) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodNotes will be duly and punctually paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, (to the extent permitted by law, ) interest, if any, on the Notes and the due and punctual performance of all other obligations of the Company or the Subsidiary Guarantors to the Holders or the Trustee under hereunder or thereunder (including fees, expenses or other) and all other obligations with respect to the Notes and this Indenture and the Noteswill be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsNotes, that the same shall will 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed guaranteed, or failing performance of any performance so guaranteed other obligation of the Company to the Holders, for whatever reason, the Guarantors shall each Subsidiary Guarantor will be obligated, jointly and severally obligated with each other Subsidiary Guarantor, to pay pay, or to perform or cause the performance of, the same immediately. Each Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Notes shall constitute an event of payment default under this Article IX, and not a guarantee shall entitle the Holders of collectionNotes to accelerate the obligations of the Subsidiary Guarantors hereunder in the same manner and to the same extent as the obligations of the Company.
(1b) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms Each of the Subsidiary Guarantees Guarantors hereby agrees that its obligations hereunder shall be continuing, absolute and unconditional, irrespective of, and shall be unaffected by, 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 or the Trustee 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, whether or not a Subsidiary Guarantee is affixed to any particular Note, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such a Subsidiary Guarantor’s obligations hereunder, (2) . Each of the Subsidiary Guarantors hereby waives the benefit of any statute diligence, presentment, demand of limitations affecting such Guarantor’s liability hereunder payment, filing of claims with a court in the event of insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes, this Indenture and this IndentureArticle IX. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyCompany or to any Subsidiary Guarantor, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorssuch Subsidiary Guarantor, any amount paid by either the Company or such Subsidiary Guarantor to the Trustee or such Holder, this Subsidiary GuaranteeArticle IX, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (xi) subject to this Article IX, the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article V hereof for the purposes of this Subsidiary GuaranteeArticle IX, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (yii) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article V hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors Article IX.
(c) This Article IX shall have remain in full force and effect and continue to be effective should any petition be filed by or against the right 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 Company’s assets, and shall, to seek contribution from any non-paying Guarantor so long the fullest extent permitted by law, continue to be effective or be reinstated, as the exercise of such right does not impair the rights 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, is rescinded, reduced, restored or returned, the Subsidiary Guarantees 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.
(d) Each Subsidiary Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is the intention of all such parties that the guarantee by each Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law. To effectuate the foregoing intention, the Holders and each Subsidiary Guarantor hereby irrevocably agree that the obligations of each Subsidiary Guarantor under the Subsidiary GuaranteeGuarantees shall be limited to the maximum amount which, after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its contribution obligations under this Indenture, will result in the obligations of such Subsidiary Guarantor and its Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent transfer or obligation under federal or state law.
Appears in 2 contracts
Sources: Indenture (Beazer Homes Usa Inc), Indenture (Beazer Homes Usa Inc)
Subsidiary Guarantee. Subject to this Article 10Twelve, each of the Subsidiary Guarantors hereby jointly, severally and unconditionally guarantee guarantees, and, in the case of the First Lien Guarantors and the Second Lien Guarantors on a secured basis, to each Holder of a Note Notes 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 or the obligations of the Company under this Indenture or the Notes, that:
(a) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodNotes shall be promptly paid in full when due, whether at Stated Maturity, upon redemption or repurchase, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, to the extent permitted by law, interest, and the due and punctual performance of all other obligations of the Company to Holders of the Holders Notes or the Trustee under this Indenture and or the NotesNotes shall be promptly paid in full or promptly performed, as the case may be, all in accordance with the terms hereof of this Indenture and thereofthe Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, upon redemption or repurchase, by acceleration pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or failing performance of any performance other obligation so guaranteed for whatever reason, the Guarantors each Subsidiary Guarantor shall be jointly and severally obligated to pay pay, or to perform or cause the performance of, the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms . Each of the Subsidiary Guarantees and Guarantors hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of this Indenture or the Notes, the release of any other Subsidiary Guarantor, 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 such a Subsidiary Guarantor’s obligations hereunder. Each Subsidiary Guarantor hereby waives, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under by applicable law, diligence, presentment, demand of payment, filing of claims with a court in the benefits event of any “One Action” rule and (h) any defenses insolvency 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 bankruptcy of the Subsidiary Guarantees. Except Company, any right to require a proceeding first against the extent expressly provided hereinCompany, including Sections 8.02protest, 8.03 notice and 10.05, each Guarantor hereby covenants all demands whatsoever and covenant that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. Unless and until released with respect to any Subsidiary Guarantor in accordance with Section 12.04 of this Indenture, this Subsidiary 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 custodian, trustee, liquidator or other similar official be appointed for all or any part of the Company’s assets. If any Holder of the Notes or the Trustee is required by any court or governmental authority or is otherwise required to return to the Company, the Guarantors any Subsidiary Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorssuch Subsidiary Guarantor, any amount paid by either the Company or such Subsidiary Guarantor to the Trustee or such Holder, the Notes and this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees (to the fullest extent permitted by law) that, as between the Guarantorsit, on the one hand, and the Holders of the Notes and the Trustee, on the other handother, (xa) subject to this Article Twelve, the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article Five of this Indenture, for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (yb) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereofsuch Article Five, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 2 contracts
Sources: Senior Secured Notes Agreement (Office Properties Income Trust), Exchange Agreement (Office Properties Income Trust)
Subsidiary Guarantee. Subject to this Article 1011, each of the Subsidiary Guarantors hereby hereby, jointly and severally, unconditionally guarantee 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 or the obligations of the Issuer hereunder or thereunder, that: (a) the due and punctual payment principal of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodNotes will be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest on the Notes, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations of the Company Issuer to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall 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 pursuant to Section 6.02, redemption or otherwise. 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.
(1) any principles or provisions of law. The Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and 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 Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such a Subsidiary Guarantor’s obligations hereunder. Subject to Section 6.06, (2) each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesIssuer, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawIssuer, the benefits of any “One Action” rule protest, notice and (h) any defenses or benefits all demands whatsoever and covenant 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuer, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuer or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this such Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this such Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this such Subsidiary 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 Subsidiary Guarantee.
Appears in 2 contracts
Sources: Indenture (GameStop Corp.), Indenture (GameStop Corp.)
Subsidiary Guarantee. Subject Each of the undersigned (the “Guarantors”) hereby jointly and severally unconditionally guarantees, to this Article 10the extent set forth in the Indenture dated as of August 18, 2004 by and among AMC Entertainment Inc., as successor by merger to Marquee Inc., a Delaware corporation, as issuer (the “Company”) and HSBC Bank USA, National Association as Trustee (as amended, restated or supplemented from time to time, the Guarantors hereby unconditionally guarantee to each Holder of a Note authenticated “Indenture”), and delivered by the Trustee and subject to the Trustee and its successors and assigns: provisions of the Indenture, (a) the due and punctual payment of the principal of, and premium, if any, and interest on the NotesSecurities, subject to any applicable grace periodwhen and as the same shall become due and payable, whether at Stated Maturitymaturity, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal of of, and premium, if any, premium and, to the extent permitted by law, interest, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the NotesTrustee, all in accordance with the terms hereof and thereof; set forth in Article Ten of the Indenture, 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 shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due The obligations 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.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company Holders and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except Trustee pursuant to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its this Subsidiary Guarantee and this the Indenture are expressly set forth in Article Ten of the Indenture. If any Holder or the Trustee , and reference is required by any court or otherwise to return hereby made to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Indenture for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby precise terms and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose limitations of this Subsidiary 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 Each Holder of the Holders under the Security to which this Subsidiary GuaranteeGuarantee is endorsed, by accepting such Security, agrees to and shall be bound by such provisions.
Appears in 2 contracts
Sources: Supplemental Indenture (Amc Entertainment Inc), Supplemental Indenture (Amc Entertainment Inc)
Subsidiary Guarantee. Subject to this Article 10Twelve, each of the Subsidiary Guarantors hereby jointly, severally and unconditionally guarantee guarantees, on a secured basis, to each Holder of a Note Notes 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 or the obligations of the Company under this Indenture or the Notes, that:
(a) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodNotes shall be promptly paid in full when due, whether at Stated Maturity, upon redemption or repurchase, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, to the extent permitted by law, interest, and the due and punctual performance of all other obligations of the Company to Holders of the Holders Notes or the Trustee under this Indenture and or the NotesNotes shall be promptly paid in full or promptly performed, as the case may be, all in accordance with the terms hereof of this Indenture and thereofthe Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, upon redemption or repurchase, by acceleration pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or failing performance of any performance other obligation so guaranteed for whatever reason, the Guarantors each Subsidiary Guarantor shall be jointly and severally obligated to pay pay, or to perform or cause the performance of, the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms . Each of the Subsidiary Guarantees and Guarantors hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of this Indenture or the Notes, the release of any other Subsidiary Guarantor, 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 such a Subsidiary Guarantor’s obligations hereunder. Each Subsidiary Guarantor hereby waives, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under by applicable law, diligence, presentment, demand of payment, filing of claims with a court in the benefits event of any “One Action” rule and (h) any defenses insolvency 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 bankruptcy of the Subsidiary Guarantees. Except Company, any right to require a proceeding first against the extent expressly provided hereinCompany, including Sections 8.02protest, 8.03 notice and 10.05, each Guarantor hereby covenants all demands whatsoever and covenant that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. Unless and until released with respect to any Subsidiary Guarantor in accordance with Section 12.04 of this Indenture, this Subsidiary 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 custodian, trustee, liquidator or other similar official be appointed for all or any part of the Company’s assets. If any Holder of the Notes or the Trustee is required by any court or governmental authority or is otherwise required to return to the Company, the Guarantors any Subsidiary Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorssuch Subsidiary Guarantor, any amount paid by either the Company or such Subsidiary Guarantor to the Trustee or such Holder, the Notes and this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees (to the fullest extent permitted by law) that, as between the Guarantorsit, on the one hand, and the Holders of the Notes and the Trustee, on the other handother, (xa) subject to this Article Twelve, the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article Five of this Indenture, for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (yb) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereofsuch Article Five, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 2 contracts
Sources: Senior Secured Notes Agreement (Office Properties Income Trust), Senior Secured Notes Agreement (Office Properties Income Trust)
Subsidiary Guarantee. Subject to the provisions of this Article 10X, the Guarantors hereby Guarantor unconditionally guarantee and irrevocably guarantees to each Holder of a Note authenticated Lender and delivered by the Trustee Agent and to the Trustee and its their respective successors and assigns, that: (ai) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to Advances and any applicable grace periodpromissory note issued hereunder will be duly and punctually paid in full when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, the due and punctual payment of interest on the overdue principal of principal, and premium, if any, and, and (to the extent permitted by law, ) interest on any interest, if any, on the Advances, any promissory note issued hereunder and the due and punctual performance of all other obligations of the Company to the Holders Lenders or the Trustee under this Indenture Agent hereunder (including fees and the Notesexpenses) will be promptly paid in full, all in accordance with the terms hereof and thereofhereof; and (bii) in case of any extension of time of payment or renewal of any Notes of the Advances or any of such other obligations, that the same shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed guaranteed, or failing performance of any performance so guaranteed other obligation of the Company to the Lenders or the Agent, for whatever reason, the Guarantors shall Guarantor will be jointly and severally obligated to pay pay, or to perform or to cause the performance of, the same immediately. Each An Event of Default under this Agreement shall constitute an event of default under this Guarantee, and shall entitle the Lenders to accelerate the obligations of the Guarantor agrees that under this is a guarantee Guarantee in the same manner and to the same extent as the obligations of payment and not a guarantee of collectionthe Company.
(1a) any principles right to require the Agent, the Lenders or provisions the Company (each, a "Benefitted Person") to proceed against the Company or any other Person or to proceed against or exhaust any security held by a Benefitted Person at any time or to pursue any other remedy in any secured party's power before proceeding against the Guarantor; (b) any defense that may arise by reason of lawthe incapacity, statutory lack of authority, death or otherwisedisability of any other Person or Persons or the failure of a Benefitted Person to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) demand, protest and notice of any kind (except as expressly required by this Agreement), including but not limited to notice of the existence, creation or incurring of any new or additional Debt or obligation or of any action or non-action on the part of the Guarantor, the Company, any Benefitted Person, any creditor of the Guarantor, the Company or on the part of any other Person whomsoever in connection with any obligations the performance of which are guaranteed under this Guarantee; (d) any defense based 5-Year Credit Agreement ----------------------- NY3:#7330584v6 upon an election of remedies by a Benefitted Person, including but not limited to an election to proceed against the Guarantor for reimbursement; (e) any defense based upon any statute or might rule of law which provides that the obligation of a surety must be neither larger in conflict with the terms amount nor in other respects more burdensome than that of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject theretoprincipal; (f) noticesany defense arising because of a Benefitted Person's election, demandsin any proceeding instituted under the Bankruptcy Code, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary Guarantees, notices application of Default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification Section 1111(b)(2) of the Obligations under the Subsidiary Guarantees or any agreement related thereto, Bankruptcy Code; and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted any defense based on any borrowing or grant of a security interest under applicable law, the benefits of any “One Action” rule and (h) 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 Section 364 of the Subsidiary GuaranteesBankruptcy Code. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each The Guarantor hereby covenants that its Subsidiary this Guarantee shall will not be discharged except by complete performance payment in full of all principal, premium, if any, and interest on the obligations contained in its Subsidiary Advances and all other costs provided for under this Agreement. This is a Guarantee of payment and this Indenturenot of collectibility. If any Holder Lender or the Trustee Agent is required by any court or otherwise to return to either the CompanyCompany or the Guarantor, the Guarantors or any custodian, trustee, liquidator trustee or other similar official acting in relation to either the Company or the GuarantorsGuarantor, any amount paid by either the Company or the Guarantor to the Trustee Agent or such HolderLender, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each The Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders Lenders or the Agent in respect of any obligations guaranteed hereby under this Guarantee until payment in full of all obligations guaranteed hereby. Each The Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders Lenders and the TrusteeAgent, on the other hand, (x) the maturity of the obligations guaranteed hereby under this Guarantee may be accelerated as provided in Section 6.02 Article VI hereof for the purposes of this Subsidiary Guaranteehereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article VI hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 2 contracts
Sources: Credit Agreement (Pepsi Bottling Group Inc), Credit Agreement (Bottling Group LLC)
Subsidiary Guarantee. Subject Each of the undersigned (the “Guarantors”) hereby jointly and severally unconditionally guarantees, to this Article 10the extent set forth in the Indenture dated as of January 26, 2006 by and among AMC Entertainment Inc., a Delaware corporation, as issuer (the “Company”) and HSBC Bank USA, National Association as Trustee (as amended, restated or supplemented from time to time, the Guarantors hereby unconditionally guarantee to each Holder of a Note authenticated “Indenture”), and delivered by the Trustee and subject to the Trustee and its successors and assigns: provisions of the Indenture, (a) the due and punctual payment of the principal of, and premium, if any, and interest on the NotesSecurities, subject to any applicable grace periodwhen and as the same shall become due and payable, whether at Stated Maturitymaturity, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal of of, and premium, if any, premium and, to the extent permitted by law, interest, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the NotesTrustee, all in accordance with the terms hereof and thereof; set forth in Article Eleven of the Indenture, 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 shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due The obligations 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.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company Holders and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except Trustee pursuant to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its this Subsidiary Guarantee and this the Indenture are expressly set forth in Article Eleven and Article Twelve of the Indenture. If any Holder or the Trustee , and reference is required by any court or otherwise to return hereby made to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Indenture for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby precise terms and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose limitations of this Subsidiary Guarantee. The Guarantors shall have This Guarantee is subject to release as and to the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights extent set forth in Sections 8.01, 8.02 and 11.03 of the Holders under Indenture. Each Holder of the Security to which this Subsidiary GuaranteeGuarantee is endorsed, by accepting such Security, agrees to and shall be bound by such provisions. Capitalized terms used herein and not defined are used herein as so defined in the Indenture.
Appears in 2 contracts
Sources: Indenture (Amc Entertainment Inc), Indenture (Marquee Holdings Inc.)
Subsidiary Guarantee. (a) Subject to the provisions of this Article 106, the Guarantors each Subsidiary Guarantor, jointly and severally, hereby fully and unconditionally guarantee guarantees on a senior subordinated, unsecured basis to each Holder holder of a Note Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns: Trustee, irrespective of the validity or enforceability of this Indenture, the Securities, or the obligations of the Company hereunder or thereunder:
(ai) the due and punctual payment of the principal ofof and Interest on, premiumthe Securities, if anywhether at the Stated Maturity or on an Interest Payment Date, and interest on the Notesby acceleration, call for redemption, repurchase, or otherwise (subject to any applicable grace period, whether at Stated Maturity, by acceleration, redemption or otherwise, );
(ii) the due and punctual payment of interest Interest on the overdue principal of and premiumprincipal, if any, and, to the extent permitted by law, interestof, and Interest on, the Securities, if lawful;
(iii) the due and punctual payment and performance (subject to any applicable grace period) of all other obligations of the Company to the Holders or the Trustee under this Indenture and the Notes, all in accordance with the terms hereof and thereofSecurities; and and
(biv) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligationsobligations under this Indenture or under the Securities, that same shall be promptly paid in full when the due and punctual payment or performed performance thereof (subject to any applicable grace period) in accordance with the terms of the extension or renewal, whether at the Stated Maturity, by acceleration pursuant to Section 6.02acceleration, redemption call for redemption, repurchase, or otherwise. .
(b) Failing payment when due by the Company 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 Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Securities shall constitute an Event of payment Default under the Subsidiary Guarantees, and not a guarantee shall entitle the Holders or the Trustee to accelerate the obligations of collectionthe Subsidiary Guarantors hereunder in the same manner and to the same extent as the obligations of the Company.
(1c) any principles or provisions of lawEach Subsidiary Guarantor hereby agrees that (i) its obligations hereunder shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the validity, regularity or enforceability of the Securities, this Indenture, or the obligations of the Company hereunder or thereunder, the absence of any action to enforce the same, whether or not a Subsidiary Guarantees and Guarantee is affixed to any particular Security, any waiver or consent by any Holder with respect to any provisions hereof or thereof, any amendment of this Indenture or the Securities, the recovery of any judgment against the Company or any of its Subsidiaries, any action to enforce the same, or any other circumstance that might otherwise constitute a legal or equitable discharge or defense of such Guarantor’s obligations hereunder, a Guarantor (2other than payment in full of the Securities) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4ii) promptnesssubject to Section 6.07, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its no Subsidiary Guarantee shall not will be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee of the Company under the Securities and this Indenture.
(d) The Subsidiary 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 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 Securities are pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities, 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 Securities 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.
(e) Each Subsidiary Guarantor hereby agrees that it shall not be entitled to and irrevocably waives diligence, presentment, demand of payment, filing of claim with a court in the event of insolvency or bankruptcy of the Company, any Subsidiary Guarantor, any other Subsidiary of the Company or any other obligor under the Securities, any right to require a proceeding first against the Company, any Subsidiary Guarantor, any other Subsidiary of the Company or any other obligor under this Indenture, or the Securities and any right, protest, notice and all demands whatsoever.
(f) If any Holder or the Trustee is required by any court or otherwise to return to the Company, any Subsidiary Guarantor, any other Subsidiary of the Guarantors Company or any custodianother obligor under this Indenture, or the Securities, or any trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorsofficial, any amount paid by either the Company, any Subsidiary Guarantor, any other Subsidiary of the Company or any other obligor under this Indenture, or the Securities to the Trustee or such Holder, this the Subsidiary GuaranteeGuarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. .
(g) 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the obligations of the Company guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article 12 for the purposes of this the Subsidiary GuaranteeGuarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect as to the Company of the obligations guaranteed hereby hereby, and (yii) in the event of any declaration of acceleration of such those obligations as provided in Section 6.02 hereofArticle 12, such those obligations (regardless of whether or not due and payable) shall will forthwith become due and payable by each of the Subsidiary Guarantors for the purpose of the Subsidiary Guarantees.
(h) No stockholder, Officer, director, employee or incorporator, past, present or future, of any Subsidiary Guarantor, as such, shall have any personal liability under this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long Guarantee by reason of his, her or its status as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guaranteestockholder, Officer, director, employee or incorporator.
Appears in 2 contracts
Sources: Indenture (American Medical Systems Holdings Inc), Indenture (AMS Sales CORP)
Subsidiary Guarantee. (a) Subject to this Article 1011, each of the Guarantors hereby hereby, jointly and severally, fully and unconditionally guarantee 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 or the obligations of the Company hereunder or thereunder, that:
(a1) the due and punctual payment of the principal of, premiumand premium or interest, if any, and interest on on, the Notes, subject to any applicable grace periodNotes will be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiumof, or premium or interest, if any, andon, to the extent permitted by lawNotes, interestif lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and and
(b2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall 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.
(1b) any principles or provisions of lawThe Guarantors hereby agree that their obligations hereunder are unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and 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 Issuers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor’s obligations hereundera guarantor. Each Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesIssuers, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawIssuers, the benefits of any “One Action” rule protest, notice and (h) any defenses or benefits all demands whatsoever and covenant 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. .
(c) If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuers or the Guarantors, any amount paid by either any of them to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall will be reinstated in full force and effect. .
(d) Each Guarantor agrees that it shall 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 further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y2) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article 6 hereof, such obligations (whether or not due and payable) shall will forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall 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.
Appears in 2 contracts
Sources: Indenture (Par Pacific Holdings, Inc.), Indenture (Par Pacific Holdings, Inc.)
Subsidiary Guarantee. Subject Each of the undersigned (the “Guarantors”) hereby jointly and severally unconditionally guarantees, to this Article 10the extent set forth in the Indenture, dated as of February 24, 2004, by and between AMC Entertainment Inc., a Delaware corporation, as issuer (the “Company”) and HSBC Bank USA, National Association, as Trustee (as amended, restated or supplemented from time to time, the Guarantors hereby unconditionally guarantee to each Holder of a Note authenticated and delivered “Indenture”), as supplemented by the Trustee First Supplemental Indenture, dated as of December 23, 2004, and subject to the Trustee and its successors and assigns: provisions of the Indenture, (a) the due and punctual payment of the principal of, and premium, if any, and interest on the NotesSecurities, subject to any applicable grace periodwhen and as the same shall become due and payable, whether at Stated Maturitymaturity, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal of of, and premium, if any, premium and, to the extent permitted by law, interest, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the NotesTrustee, all in accordance with the terms hereof and thereof; set forth in the First Supplemental Indenture, 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 shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due The obligations 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.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company Holders and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except Trustee pursuant to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its this Subsidiary Guarantee and this the Indenture are expressly set forth in the First Supplemental Indenture. If any Holder or the Trustee , and reference is required by any court or otherwise to return hereby made to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Indenture for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby precise terms and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose limitations of this Subsidiary 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 Each Holder of the Holders under the Security to which this Subsidiary GuaranteeGuarantee is endorsed, by accepting such Security, agrees to and shall be bound by such provisions.
Appears in 2 contracts
Sources: Supplemental Indenture (Amc Entertainment Inc), Supplemental Indenture (Marquee Holdings Inc.)
Subsidiary Guarantee. Subject to this Article 10Section 11.05 hereof, each of the Guarantors hereby hereby, jointly and severally, unconditionally guarantee guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes and the Obligations of the Company hereunder and thereunder, that: (a) the due and punctual payment of the principal of, premium, if any, interest and interest Liquidated Damages, if any, on the NotesNotes will be promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and principal, premium, if any, and, (to the extent permitted by law, ) interest on any interest, if any, and Liquidated Damages, if any, on the due Notes, and punctual performance of all other obligations payment Obligations of the Company to the Holders or the Trustee under this Indenture hereunder or thereunder will be promptly paid in full and the Notesperformed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same shall 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 pursuant to Section 6.02acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, reason the Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Notes shall constitute an event of payment default under the Subsidiary Guarantees, and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with shall entitle the terms Holders to accelerate the Obligations of the Subsidiary Guarantees Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such a Guarantor’s obligations hereunder. Each Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in its Subsidiary Guarantee the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Guarantors, or any custodianNote Custodian, trusteeTrustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either the Company or any Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this its Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby thereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Section 6.02 Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose of this its Subsidiary 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 Subsidiary GuaranteeGuarantees.
Appears in 2 contracts
Sources: Indenture (B&g Foods Inc), Indenture (RWBV Acquisition Corp)
Subsidiary Guarantee. Subject to this Article 10Section 10.06 of the Indenture, the Guarantors undersigned Guarantor hereby unconditionally guarantee 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 the, Indenture, the Notes and the Obligations of the Company under the Notes or under the Indenture, that: (a) the due and punctual payment of the principal of, premium, if any, interest and interest Liquidated Damages, if any, on the NotesNotes will be promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and principal, premium, if any, and, (to the extent permitted by law, ) interest on any interest, if any, and Liquidated Damages, if any, on the due Notes and punctual performance of all other obligations payment Obligations of the Company to the Holders or the Trustee under this the Indenture or under the Notes will be promptly paid in full and the Notesperformed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationspayment Obligations, that the same shall 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 pursuant to Section 6.02acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall Guarantor will be jointly and severally obligated to pay the same immediately. Each An Event of Default under the Indenture or the Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders to accelerate the Obligations of the Guarantor hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of lawits Obligations hereunder shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance defense of the Subsidiary GuaranteesGuarantor. The Guarantor hereby waives diligence, notices presentment, demand of Default under payment, filing of claims with a court in the Notes event of insolvency or any agreement or instrument related thereto, notices of any renewal, extension or modification bankruptcy of the Obligations under the Subsidiary Guarantees or any agreement related theretoCompany, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in its Subsidiary Guarantee the Notes and this the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Guarantor, or any custodianNote Custodian, trusteeTrustee, liquidator or other similar official acting in relation to either the Company or the GuarantorsGuarantor, any amount paid by either the Company or the Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each The Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each The Guarantor further agrees that, as between the GuarantorsGuarantor, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article 6 of the Indenture for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby thereby, and (yb) in the event of any declaration of acceleration of such obligations Obligations as provided in Section 6.02 hereofArticle 6 of the Indenture, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose of this Subsidiary Guarantee. The Guarantors Guarantor 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 Subsidiary GuaranteeGuarantees.
Appears in 2 contracts
Sources: Third Supplemental Indenture (Los Buenos Leasing Co Inc), Fourth Supplemental Indenture (Los Buenos Leasing Co Inc)
Subsidiary Guarantee. Subject to the provisions of this Article 10, the Guarantors each Subsidiary Guarantor hereby jointly and severally unconditionally guarantee guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns: Trustee, on behalf of the Holders, (ai) the due and punctual payment of the principal of, premium, if any, and interest on the Guaranteed Amount of Notes, subject to any applicable grace periodwhen and as the same shall become due and payable, whether at Stated Maturitymaturity, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal of of, and premium, if any, andand interest on the Guaranteed Amount of Notes, to the extent permitted by law, interestlawful, and the due and punctual performance of all other obligations Obligations of the Company (other than any such Obligations in respect of the Non-Guaranteed Amount of Notes) to the Holders or the Trustee under this Indenture and the Notes, all in accordance with the terms hereof and thereof; of this Indenture, and (bii) in the case of any extension of time of payment or renewal of any the Guaranteed Amount of Notes or any of such other obligationsObligations, that the same shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due Each Subsidiary Guarantor hereby agrees that its obligations hereunder shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any amount so guaranteed 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 the Holder of such Note or the Trustee, 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 other circumstances which may otherwise constitute a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of a surety or such Subsidiary Guarantor’s obligations hereunder. Each Subsidiary Guarantor hereby waives diligence, (2) presentment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder merger or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent require a proceeding first against the Company, protest or notice with respect to any thereof; (g) to such Note or the extent permitted under applicable lawDebt evidenced thereby and all demands whatsoever, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged as to any such Note except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed herebythe principal thereof, premium if any, and interest thereon and as provided in Section 9.01 hereof. Each Subsidiary Guarantor further agrees that, as between the Guarantorssuch Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby hereby, and (yii) in the event of any declaration of acceleration of such obligations Obligations as provided in Section 6.02 Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors each Subsidiary Guarantor for the purpose of this Subsidiary Guarantee. The Guarantors In addition, without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article 6 hereof, the Trustee 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 promptly make a demand for payment on all Obligations under the Subsidiary GuaranteeGuarantee provided for in this Article 10 and not discharged. The Subsidiary Guarantee set forth in this Section 10.01 shall not be valid or become obligatory for any purpose with respect to a Note until the certificate of authentication on such Note shall have been signed by or on behalf of the Trustee.
Appears in 2 contracts
Sources: Indenture (Paxson Communications Corp), Indenture (Paxson Communications Corp)
Subsidiary Guarantee. Subject to this Article 106, each of the Subsidiary Guarantors hereby hereby, jointly and severally, unconditionally guarantee guarantees on a senior unsecured 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 the Indenture, the Notes or the obligations of the Company under the Indenture or the Notes, that: (a) the due and punctual payment principal of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodNotes shall be promptly paid in full when due, whether at Stated Maturity, upon redemption or repurchase, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal of of, and premiumoverdue premium and interest on, the Notes, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations of the Company to Holders of the Holders Notes or the Trustee under this the Indenture and or the NotesNotes shall be promptly paid in full or promptly performed, as the case may be, all in accordance with the terms hereof of the Indenture and thereofthe Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, upon redemption or repurchase, by acceleration pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or failing performance of any performance other obligation so guaranteed for whatever reason, the Guarantors each Subsidiary Guarantor shall be jointly and severally obligated to pay pay, or to perform or cause the performance of, the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms . Each of the Subsidiary Guarantees and Guarantors hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the 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 the Indenture or the Notes, the release of any other Subsidiary Guarantor, 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 such a Subsidiary Guarantor’s obligations hereunder. Each Subsidiary Guarantor hereby waives, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under by applicable law, diligence, presentment, demand of payment, filing of claims with a court in the benefits event of any “One Action” rule and (h) any defenses insolvency 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 bankruptcy of the Subsidiary Guarantees. Except Company, any right to require a proceeding first against the extent expressly provided hereinCompany, including Sections 8.02protest, 8.03 notice and 10.05, each Guarantor hereby covenants all demands whatsoever and covenant that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its the Notes and the Indenture. Unless and until released with respect to any Subsidiary Guarantor in accordance with Section 6.4 of this Supplemental Indenture, this Subsidiary Guarantee shall remain in full force and this Indentureeffect 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 custodian, trustee, liquidator or other similar official be appointed for all or any part of the Company’s assets. If any Holder of the Notes or the Trustee is required by any court or governmental authority or is otherwise required to return to the Company, the Guarantors any Subsidiary Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorssuch Subsidiary Guarantor, any amount paid by either the Company or such Subsidiary Guarantor to the Trustee or such Holder, the Notes and this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees (to the fullest extent permitted by law) that, as between the Guarantorsit, on the one hand, and the Holders of the Notes and the Trustee, on the other hand, (xa) subject to this Article 6, the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article Five of the Base Indenture, as supplemented by this Supplemental Indenture, for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (yb) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereofsuch Article Five, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 2 contracts
Sources: Fourth Supplemental Indenture (Diversified Healthcare Trust), Fourth Supplemental Indenture (Diversified Healthcare Trust)
Subsidiary Guarantee. Subject to this Article 10Section 10.06 hereof, the Guarantors hereby hereby, jointly and severally, unconditionally guarantee guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes and the Obligations of the Company hereunder and thereunder, that: (a) the due principal of and punctual payment of the principal ofpremium, premiuminterest and Liquidated Damages, if any, and interest on the NotesNotes will be promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and principal, premium, if any, and, (to the extent permitted by law) interest and Liquidated Damages, interestif any, on the Notes, and the due and punctual performance of all other obligations payment Obligations of the Company to the Holders or the Trustee under this Indenture hereunder or thereunder will be promptly paid in full and the Notesperformed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same shall 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 pursuant to Section 6.02acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, reason the Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Notes shall constitute an event of payment default under the Subsidiary Guarantees, and not a guarantee of collection.
(1) any principles or provisions of lawshall entitle the Holders to accelerate, statutory or otherwise, which are or might be in conflict with the terms Obligations of the Subsidiary Guarantees Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such a Guarantor’s obligations hereunder. Each Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a preceding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in its Subsidiary Guarantee the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Guarantors, or any custodianNote Custodian, trusteeTrustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either the Company or any Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article VI hereof for the purposes of this its Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby thereby, and (yb) in the event of any declaration of acceleration of such obligations Obligations as provided in Section 6.02 Article VI hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose of this its Subsidiary 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 Subsidiary GuaranteeGuarantees.
Appears in 2 contracts
Sources: Indenture (Mmi Products Inc), Indenture (Mmi Products Inc)
Subsidiary Guarantee. Subject to this Article 10Section 11.05 hereof, each of the Subsidiary Guarantors hereby unconditionally guarantee hereby, on a full, unconditional, joint and several, unsecured basis guarantees (the "Subsidiary Guarantees") to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes and the Obligations of the Company hereunder and thereunder, that: (a) the due and punctual payment of the principal of, premium, if any, interest and interest Liquidated Damages, if any, on the NotesNotes will be promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and principal, premium, if any, and, (to the extent permitted by law, ) interest on any interest, if any, and Liquidated Damages, if any, on the due Notes, and punctual performance of all other obligations payment Obligations of the Company to the Holders or the Trustee under this Indenture hereunder or thereunder will be promptly paid in full and the Notesperformed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same shall 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 pursuant to Section 6.02acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, reason the Subsidiary Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Notes shall constitute an event of payment default under the Subsidiary Guarantees, and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with shall entitle the terms Holders to accelerate the Obligations of the Subsidiary Guarantees Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Subsidiary Guarantors hereby agree that their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such a Subsidiary Guarantor’s obligations hereunder. Each Subsidiary Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in its Subsidiary Guarantee the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Subsidiary Guarantors, or any custodianCustodian, 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 Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article 6 for the purposes of this the Subsidiary GuaranteeGuarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Section 6.02 Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this the Subsidiary GuaranteeGuarantees. 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 Subsidiary GuaranteeGuarantees.
Appears in 2 contracts
Sources: Indenture (National Equipment Services Inc), Indenture (MST Enterprises Inc)
Subsidiary Guarantee. Subject to this Article 10the limitations set forth in the Indenture, the Guarantors hereby (as defined in the Indenture referred to in this Note and each hereinafter referred to as a "Guarantor," which term includes any successor or additional Guarantor under the Indenture) have, jointly and severally, irrevocably and unconditionally guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns: guaranteed (a) the due and punctual payment of the principal of, (and premium, if any, ) of and interest (including Additional Amounts, if any and Special Interest, if any) on the Notes, subject to any applicable grace period, whether at Stated Maturity, by acceleration, redemption call for redemption, upon a Change of Control Offer, Asset Sale Offer, offer to purchase upon a Termination of Trading, purchase or otherwise, (b) the due and punctual payment of interest on the overdue principal of and premiuminterest (including Additional Amounts, if any, andand Special Interest, if any) on the Notes, if any, to the extent permitted by lawlawful, interest, and (c) the due and punctual performance of all other obligations of the Company and the Guarantors to the Holders or under the Trustee under this Indenture and Indenture, the Notes, all in accordance with the terms hereof Collateral Documents and thereof; the Senior Note Collateral Documents and (bd) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same shall 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 pursuant acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, offer to Section 6.02purchase upon a Termination of Trading, redemption purchase or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reasonCapitalized terms used herein shall have the meanings assigned to them in the Indenture unless otherwise indicated. Payment on each Note is guaranteed, jointly and severally, by the Guarantors shall be jointly pursuant to Article X of the Indenture on a senior subordinated basis to the extent provided in the Indenture and severally obligated reference is made to pay such Indenture for the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the precise terms of the Subsidiary Guarantees and any legal or equitable discharge such subordination. The obligations of each Guarantor are limited to the lesser of (a) an amount equal to such Guarantor's Adjusted Net Assets as of the date of the Guarantee and (b) the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor’s Guarantor (including, if applicable, its obligations hereunder, (2under the Senior Notes) the benefit and after giving effect to any collections from or payments made by or on behalf of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each other Guarantor hereby covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby and (y) of such other Guarantor under its Guarantee or pursuant to its contribution obligations under the Indenture, result in the event of any declaration of acceleration obligations of such obligations as Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law or not otherwise being void, voidable or unenforceable under any similar other bankruptcy, receivership, insolvency, liquidation or other similar legislation or legal principles under applicable foreign law. Each Guarantor that makes a payment or distribution under a Guarantee shall be entitled to a contribution from each other Guarantor in a pro rata amount based on the Adjusted Net Assets of each Guarantor. Certain of the Guarantors may be released from their Guarantees upon the terms and subject to the conditions provided in Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary 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 Subsidiary GuaranteeIndenture.
Appears in 1 contract
Sources: Convertible Note Agreement (Nwe Capital Cyprus LTD)
Subsidiary Guarantee. Subject to the provisions of this Article 1018 each Subsidiary Guarantor hereby jointly and severally, the Guarantors hereby fully and unconditionally guarantee guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors successors, irrespective of the validity and assignsenforceability of this Indenture, the Notes or the obligations of the Company or any other Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder, that: (a) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodNotes will be duly and punctually paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption call for redemption, upon an Excess Proceeds Offer, a Change of Control Offer or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, (to the extent permitted by law, interest, ) interest on the Notes and the due and punctual performance of all other obligations of the Company or the Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder (including amounts due the Trustee hereunder) and all other obligations of the Company under this Indenture and Indenture, including to the NotesTrustee or under the Notes (including fees, expenses or other) will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed guaranteed, or failing performance of any performance so guaranteed other obligation of the Company to the Holders, for whatever reason, the Guarantors shall each Subsidiary Guarantor will be jointly and severally obligated to pay pay, or to perform or cause the performance of, the same immediately. Each Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Notes shall constitute an event of payment default under this Subsidiary Guarantee, and not a guarantee shall entitle the Holders of collection.
(1) any principles Notes or provisions of law, statutory or otherwise, which are or might be in conflict with the terms Trustee to accelerate the obligations of the Subsidiary Guarantees Guarantors hereunder in the same manner and to the same extent as the obligations of the Company. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes, the Security Documents 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, whether or not a Subsidiary Guarantee is affixed to any particular Note, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor’s obligations hereunder, (2) a guarantor. Each of the Subsidiary Guarantors hereby waives the benefit of any statute diligence, presentment, demand for payment, filing of limitations affecting such Guarantor’s liability hereunder claims with a court in the event of insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations contained in its the Notes, this Indenture and this Subsidiary Guarantee. This Subsidiary Guarantee is a guarantee of payment and this Indenturenot of collection. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyCompany or to any Subsidiary Guarantor, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorssuch Subsidiary Guarantor, any amount paid by either the Company or such Subsidiary Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (xa) subject to this Article 18, the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof herein for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (yb) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereofherein, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors This Subsidiary Guarantee shall have remain in full force and effect and continue to be effective should any petition be filed by or against the right 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 Company's assets, and shall, to seek contribution from any non-paying Guarantor so long the fullest extent permitted by law, continue to be effective or be reinstated, as the exercise 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, 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. The obligations of each Subsidiary Guarantor are limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such right does not impair the rights Subsidiary Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the Holders obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Subsidiary Guarantor under the Subsidiary GuaranteeGuarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law. Each Subsidiary Guarantor that makes a payment or distribution under a Subsidiary Guarantee shall be entitled to a contribution from each other Subsidiary Guarantor in a pro rata amount based on the net assets of each Subsidiary Guarantor, determined in accordance with GAAP. A Subsidiary Guarantor shall be released from all of its obligations under its Subsidiary Guarantee if it merges with or into or consolidates with, or transfers all or substantially all of its assets in compliance with Section 16.1 hereof, or the Subsidiary Guarantor is designated an Unrestricted Subsidiary in compliance with the other terms of this Indenture, and such Subsidiary Guarantor has delivered to the Trustee an Officers' Certificate and an Opinion of -100- Counsel, each stating that all conditions precedent herein provided for relating to such transaction have been complied with.
Appears in 1 contract
Sources: Indenture (Ibasis Inc)
Subsidiary Guarantee. (a) Subject to this Article 10, in the Guarantors hereby event that any Restricted Subsidiary of the Company shall execute and deliver a supplemental indenture to this Indenture with respect to a Subsidiary Guarantee (as required by Section 10.02 hereof or otherwise), any such Guarantor shall, jointly and severally, unconditionally 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 and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (ai) the due and punctual payment principal of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodNotes will be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest on the Notes, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall 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 pursuant to Section 6.02, redemption 7.02 hereof or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors any Guarantor shall be jointly and severally obligated to pay the same immediately. Each Any Guarantor also agrees that this is a guarantee of payment and not a guarantee of collection.
(1b) Any Guarantor agrees that its obligations with regard to such Subsidiary Guarantee shall be joint and several, unconditional, irrespective of the validity or 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 circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Any Guarantor further, to the 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 Company (each a “Benefited Party”), as a condition of payment or performance by such Guarantor, to (A) proceed against the Company, any other guarantor (including any other Guarantor) of the obligations under the Subsidiary Guarantees or any other person, (B) proceed against or exhaust any security held from the Company, any such other guarantor or any other person, (C) proceed against or have resort to any balance of any deposit account or credit on the books 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; (ii) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of the Company including any defense based on or arising out of the lack of validity or the unenforceability of the obligations under the Subsidiary Guarantees or any agreement or instrument relating thereto or by reason of the cessation of the liability of the Company from any cause other than payment in full of the obligations under the Subsidiary Guarantees; (iii) any 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 administration of the obligations under the Subsidiary Guarantees, except behavior which amounts to bad faith; (v)
(A) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2B) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3C) any rights to set-offs, recoupments and counterclaims and (4D) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (fvi) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary Guarantees, notices of Default default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Obligations obligations under the Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (gvii) to the extent permitted under applicable law, the benefits of any “One Action” rule and (hviii) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections Section 8.02, 8.03 and 10.05, each any Guarantor hereby covenants that its Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. .
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the any Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the any Guarantors, any amount paid by either to the Trustee or such Holder, this any Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each .
(d) Any 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 obligations guaranteed hereby. Each Any Guarantor further agrees that, as between the any Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 7.02 hereof for the purposes of this any Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby and (yii) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 7.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the any Guarantors for the purpose of this any such Subsidiary Guarantee. The Any 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 Subsidiary Guarantee.
Appears in 1 contract
Subsidiary Guarantee. (a) Subject to this Article 1018, each of the Subsidiary Guarantors hereby hereby, as primary obligor and not merely as surety, jointly and severally, fully and unconditionally guarantee guarantees to each Holder of a Note the Guaranteed Notes 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 Guaranteed Notes or the obligations of the Issuer hereunder or thereunder, that:
(a1) the due principal of, premium, if any, and punctual payment of interest on, the Guaranteed 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, if any, and interest on the Guaranteed Notes, subject to any applicable grace period, whether at Stated Maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other monetary obligations of the Company Issuer to the Holders or the Trustee under this Indenture and hereunder whether for payment of principal of or interest on the Guaranteed Notes, expenses, indemnification or otherwise, or thereunder will be punctually paid in full, all in accordance with the terms hereof and thereof; and and
(b2) in case of any extension of time of payment or renewal of any Guaranteed Notes or any of such other obligations, that same shall will be promptly punctually 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, redemption or otherwise. Notwithstanding any other provision of this Indenture, the maximum aggregate liability of each Subsidiary Guarantor under this Note Guarantee shall not exceed fifty thousand United States dollars (U.S. $50,000) (the “Guaranteed Amount”). Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall 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. Each Subsidiary Guarantor, pursuant to its Note Guarantee, also hereby agrees to pay any and all reasonable out-of-pocket expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under its Note Guarantee.
(1b) any principles or provisions of The Subsidiary Guarantors hereby agree that (to the fullest extent permitted by law) their obligations hereunder are unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and validity, regularity or enforceability of the Guaranteed Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Guaranteed 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 such a Subsidiary Guarantor’s obligations hereunder. Each Subsidiary Guarantor hereby waives (to the fullest extent permitted by law) diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesIssuer, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants (gexcept as otherwise provided in Section 18.4 hereof) to that the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Subsidiary Note Guarantee shall will not be discharged except by complete performance of the monetary obligations contained in its Subsidiary Guarantee the Guaranteed Notes and this Indenture. .
(c) If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuer, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuer or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Note Guarantee, to the extent theretofore discharged, shall will be reinstated in full force and effect. .
(d) Each Subsidiary Guarantor agrees that it shall 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 Subsidiary Guarantor further agrees (to the fullest extent permitted by law) that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article 5 of this Indenture for the purposes of this Subsidiary the Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y2) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereofArticle 5 of this Indenture, such obligations (whether or not due and payable) shall will forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Note Guarantee. The Subsidiary Guarantors shall will have the right to seek contribution from the Issuer or any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Note Guarantee.
Appears in 1 contract
Subsidiary Guarantee. Subject to this Article 10Section 10.06 of the Indenture, the Guarantors hereby each Guarantor hereby, jointly and severally, unconditionally guarantee 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 the Indenture, the Notes and the Obligations of the Company under the Notes or under the Indenture, that: (a) the due and punctual payment of the principal of, premiumpremium and interest, if any, and interest on the NotesNotes will be promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and principal, premium, if any, and, (to the extent permitted by law, ) and interest on any interest, if any, on the Notes and the due and punctual performance of all other obligations payment Obligations of the Company to the Holders or the Trustee under this the Indenture or under the Notes will be promptly paid in full and the Notesperformed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationspayment Obligations, that the same shall 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 pursuant to Section 6.02acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that An Event of Default under the Indenture or the Notes shall constitute an event of default under this is a guarantee of payment Subsidiary Guarantee, and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with shall entitle the terms Holders to accelerate the Obligations of the Subsidiary Guarantees Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such a Guarantor’s obligations hereunder. Each Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in its Subsidiary Guarantee the Notes and this the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Guarantors, or any custodianNote Custodian, trusteeTrustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either the Company or any Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article 6 of the Indenture for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby thereby, and (yb) in the event of any declaration of acceleration of such obligations Obligations as provided in Section 6.02 hereofArticle 6 of the Indenture, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose of this Subsidiary 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 Subsidiary GuaranteeGuarantees.
Appears in 1 contract
Sources: Indenture (Saevik Shipping As)
Subsidiary Guarantee. (a) Subject to this Article 10, the Guarantors each Guarantor hereby unconditionally guarantee 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 or the obligations of the Company hereunder or thereunder, that:
(a1) the due and punctual payment of the principal of, premiumpremium and Special Interest, if any, and interest on the Notes, subject to any applicable grace periodNotes will be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest on the Notes, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and and
(b2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall each Guarantor 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.
(1b) any principles or provisions of lawEach Guarantor hereby agrees that its obligations hereunder are unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and 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 circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor’s obligations hereundera guarantor. Each Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. .
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors a Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorssuch Guarantor, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall will be reinstated in full force and effect. .
(d) Each Guarantor agrees that it shall 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 further agrees that, as between the Guarantorssuch Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y2) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article 6 hereof, such obligations (whether or not due and payable) shall will forthwith become due and payable by the Guarantors such Guarantor for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Sources: Indenture (Georgia Pacific Corp)
Subsidiary Guarantee. Subject to this Article 10Twelve, each of the Subsidiary Guarantors hereby hereby, jointly and severally, unconditionally guarantee guarantees on a senior secured basis with respect to the Collateral Guarantors and, on a senior unsecured basis with respect to the Non-Collateral Guarantors, to each Holder of a Note Notes 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 or the obligations of the Company under this Indenture or the Notes, that: (a) the due principal or Accreted Value of (and punctual payment of the principal of, premium, if any), and as applicable, and, on or after the Extension Date, any cash interest on on, the Notes, subject to any applicable grace periodNotes shall be promptly paid in full when due, whether at Stated Maturity, upon redemption or repurchase, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, to the extent permitted by law, interest, and the due and punctual performance of all other obligations of the Company to Holders of the Holders Notes or the Trustee under this Indenture and or the NotesNotes shall be promptly paid in full or promptly performed, as the case may be, all in accordance with the terms hereof of this Indenture and thereofthe Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, upon redemption or repurchase, by acceleration pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or failing performance of any performance other obligation so guaranteed for whatever reason, the Guarantors each Subsidiary Guarantor shall be jointly and severally obligated to pay pay, or to perform or cause the performance of, the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms . Each of the Subsidiary Guarantees and Guarantors hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of this Indenture or the Notes, the release of any other Subsidiary Guarantor, 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 such a Subsidiary Guarantor’s obligations hereunder. Each Subsidiary Guarantor hereby waives, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under by applicable law, diligence, presentment, demand of payment, filing of claims with a court in the benefits event of any “One Action” rule and (h) any defenses insolvency 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 bankruptcy of the Subsidiary Guarantees. Except Company, any right to require a proceeding first against the extent expressly provided hereinCompany, including Sections 8.02protest, 8.03 notice and 10.05, each Guarantor hereby covenants all demands whatsoever and covenant that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. Unless and until released with respect to any Subsidiary Guarantor in accordance with Section 12.04 of this Indenture, this Subsidiary 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 custodian, trustee, liquidator or other similar official be appointed for all or any part of the Company’s assets. If any Holder of the Notes or the Trustee is required by any court or governmental authority or is otherwise required to return to the Company, the Guarantors any Subsidiary Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorssuch Subsidiary Guarantor, any amount paid by either the Company or such Subsidiary Guarantor to the Trustee or such Holder, the Notes and this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees (to the fullest extent permitted by law) that, as between the Guarantorsit, on the one hand, and the Holders of the Notes and the Trustee, on the other hand, (xa) subject to this Article Twelve, the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article Five of this Indenture, for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (yb) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereofsuch Article Five, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Sources: Senior Secured Notes Agreement (Diversified Healthcare Trust)
Subsidiary Guarantee. Subject to this Article 1011, each of the Subsidiary Guarantors hereby hereby, jointly and severally, unconditionally guarantee 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 or the obligations of the Issuers hereunder or thereunder, that: (a) the due and punctual payment principal of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodNotes will be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest on the Notes, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations of the Company Issuers to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall 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 pursuant to Section 6.02, redemption or otherwise. 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.
(1) any principles or provisions of law. The Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and 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 Issuers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such a Subsidiary Guarantor’s obligations hereunder. Subject to Section 6.06, (2) each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesIssuers, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawIssuers, the benefits of any “One Action” rule protest, notice and (h) any defenses or benefits all demands whatsoever and covenant 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuers or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this such Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this such Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this such Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Sources: Indenture (Gamestop Corp)
Subsidiary Guarantee. Subject to this Article 10Each Subsidiary Guarantor hereby fully, the Guarantors hereby unconditionally guarantee and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally with each other Subsidiary Guarantor, to each Holder of a Note authenticated the Securities and delivered by the Trustee and to the Trustee and its successors and assigns: (a) the due full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the NotesSecurities and all other monetary obligations of the Company under this Indenture and the Registration Rights Agreement (all the foregoing being hereinafter collectively called the “Obligations”). Each Subsidiary Guarantor further agrees (to the extent permitted by law) that the Obligations may be extended or renewed, subject to in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any applicable grace period, whether at Stated Maturity, by acceleration, redemption extension or otherwise, the due and punctual payment renewal of interest on the overdue principal of and premium, if any, andany Obligation. Each Subsidiary Guarantor waives, to the extent permitted by law, interestpresentation to, demand of payment from and protest to the Company of any of the Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives, to the extent permitted by law, notice of any default under the Securities or the Obligations. Each Subsidiary Guarantor further agrees that its Subsidiary 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 Obligations. Except as expressly set forth in Section 4.2, Section 10.2 and Article VIII, the obligations of each Subsidiary Guarantor hereunder shall not, to the extent permitted by law, be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not, to the due and punctual extent permitted by law, be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not, to the extent permitted by law, be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of all the Obligations, or by any other obligations 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 Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to the Holders or the Trustee under this Indenture and the Notes, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or pay any of such other obligations, that the Obligations when and as the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewalbecome due, whether at Stated Maturitymaturity, by acceleration pursuant to Section 6.02acceleration, by redemption or otherwise. Failing payment when due , each Subsidiary Guarantor hereby promises to and will, upon receipt of any written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders an amount so guaranteed or any performance so guaranteed for whatever reason, equal to the Guarantors shall be jointly and severally obligated to pay sum of (i) the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge unpaid amount of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments Obligations then due and counterclaims owing and (4ii) promptness, diligence accrued and any requirement that any Benefited Party protect, secure, perfect or insure any security unpaid interest or lien or any property subject thereto; on such Obligations then due and owing (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) but only to the extent permitted under applicable not prohibited by law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect). Each 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Guarantorssuch Subsidiary Guarantor, on the one hand, and the Holders and the TrusteeHolders, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof this Indenture for the purposes of this its Subsidiary GuaranteeGuarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such obligations as provided in Section 6.02 hereofObligations, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Subsidiary Guarantor for the purpose purposes of this Subsidiary Guarantee. The Guarantors shall have Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of Trustee or the Holders in enforcing any rights under the Subsidiary Guaranteethis Section.
Appears in 1 contract
Subsidiary Guarantee. (A) By its execution of this Indenture (including by any amended or supplemental indenture pursuant to Section 8.01(B)), each Subsidiary Guarantor acknowledges and agrees that it receives substantial benefits from the Company and that such Subsidiary Guarantor is providing its Guarantee for good and valuable consideration, including such substantial benefits. Subject to this Article 1011, each of the Guarantors hereby unconditionally guarantee Subsidiary Guarantors, jointly and severally, fully and unconditionally, guarantees, on a senior 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 or the obligations of the Company hereunder or thereunder, that: (ai) the due principal of, premium, if any, interest on, and punctual payment of any Conversion Consideration for, the Notes will be promptly paid or delivered in full when due, whether at the Maturity Date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest on on, and any Conversion Consideration for, the Notes, if any, if lawful (subject in all cases to any applicable grace period, whether at Stated Maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, to the extent permitted by law, interestperiod provided herein), and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid or delivered in full or performed, all in accordance with the terms hereof and thereof; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturitythe Maturity Date, by acceleration pursuant to Section 6.02, redemption or otherwise. 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.
(1B) any principles or provisions of lawThe Subsidiary Guarantors agree that, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the maximum extent permitted under applicable law, their obligations hereunder shall be unconditional, irrespective of the benefits validity, regularity or enforceability of the Notes or this Indenture or the obligations of the Company hereunder or thereunder, the absence of any “One Action” rule and (h) action to enforce the same, any defenses waiver or benefits that may be derived from or afforded consent by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms 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 circumstance which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary GuaranteesGuarantor other than payment in full of all obligations hereunder and thereunder. Except Each Subsidiary Guarantor 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 extent expressly provided hereinCompany, including Sections 8.02protest, 8.03 notice and 10.05, each Guarantor hereby all demands whatsoever and covenants that its Subsidiary this Guarantee shall not be discharged except by complete payment or performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. Indenture in accordance with their terms.
(C) 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 of the Company or the Subsidiary Guarantors, any amount or consideration paid or delivered by either the Company or a Subsidiary Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. .
(D) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation subrogation, reimbursement or contribution in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article 7 for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereofArticle 7, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors Each Subsidiary Guarantor that makes a payment or distribution under its Guarantee shall have the right to seek contribution from any non-paying Subsidiary Guarantor, in a pro rata amount based on the net assets of each Subsidiary Guarantor determined in accordance with GAAP, so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.
Appears in 1 contract
Subsidiary Guarantee. Subject to the provisions of this Article 10X, the Guarantors hereby Guarantor unconditionally guarantee and irrevocably guarantees to each Holder of a Note authenticated Lender and delivered by the Trustee Agent and to the Trustee and its their respective successors and assigns, that: (ai) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to Advances and all L/C Reimbursement Obligations and any applicable grace periodpromissory note issued hereunder will be duly and punctually paid in full when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, the due and punctual payment of interest on the overdue principal of principal, and premium, if any, and, and (to the extent permitted by law, ) interest on any interest, if any, on the Advances, and the due all L/C Reimbursement Obligations and punctual performance of any promissory note issued hereunder and all other obligations of the Company to the Holders Lenders or the Trustee under this Indenture Agent hereunder (including fees and the Notesexpenses) will be promptly paid in full, all in accordance with the terms hereof and thereofhereof; and (bii) in case of any extension of time of payment or renewal of any Notes of the Advances or any of such other obligations, that the same shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed guaranteed, or failing performance of any performance so guaranteed other obligation of the Company to the Lenders or the Agent, for whatever reason, the Guarantors shall Guarantor will be jointly and severally obligated to pay pay, or to perform or to cause the performance of, the same immediately. Each An Event of Default under this Agreement shall constitute an event of default under this Guarantee, and shall entitle the Lenders to accelerate the obligations of the Guarantor under this Guarantee in the same manner and to the same extent as the obligations of the Company. The Guarantor hereby agrees that its obligations under this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of lawGuarantee shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and validity, regularity or enforceability of this Agreement, the absence of any action to enforce the same, any waiver or consent by any Lender or the Agent of this Agreement with respect to any thereof, the entry 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 such the Guarantor. The Guarantor hereby waives and relinquishes: (a) any right to require the Agent, the Lenders or the Company (each, a “Benefitted Person”) to proceed against the Company or any other Person or to proceed against or exhaust any security held by a Benefitted Person at any time or to pursue any other remedy in any secured party’s obligations hereunderpower before proceeding against the Guarantor; (b) any defense that may arise by reason of the incapacity, (2) the benefit lack of authority, death or disability of any statute of limitations affecting such Guarantor’s liability hereunder other Person or Persons or the enforcement hereoffailure of a Benefitted Person to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (3c) demand, protest and notice of any kind (except as expressly required by this Agreement), including but not limited to notice of the existence, creation or incurring of any new or additional Debt or obligation or of any action or non-action on the part of the Guarantor, the Company, any Benefitted Person, any creditor of the Guarantor, the Company or on the part of any other Person whomsoever in connection with any obligations the performance of which are guaranteed under this Guarantee; (d) any rights defense based upon an election of remedies by a Benefitted Person, including but not limited to set-offs, recoupments and counterclaims and an election to proceed against the Guarantor for reimbursement; (4e) promptness, diligence and any requirement defense based upon any statute or rule of law which provides that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject theretothe obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) noticesany defense arising because of a Benefitted Person’s election, demandsin any proceeding instituted under the Bankruptcy Code, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary Guarantees, notices application of Default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification Section 1111(b)(2) of the Obligations under the Subsidiary Guarantees or any agreement related thereto, Bankruptcy Code; and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted any defense based on any borrowing or grant of a security interest under applicable law, the benefits of any “One Action” rule and (h) 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 Section 364 of the Subsidiary GuaranteesBankruptcy Code. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each The Guarantor hereby covenants that its Subsidiary this Guarantee shall will not be discharged except by complete performance payment in full of all principal, premium, if any, and interest on the obligations contained in its Subsidiary Advances and all other costs provided for under this Agreement. This is a Guarantee of payment and this Indenturenot of collectibility. If any Holder Lender or the Trustee Agent is required by any court or otherwise to return to either the CompanyCompany or the Guarantor, the Guarantors or any custodian, trustee, liquidator trustee or other similar official acting in relation to either the Company or the GuarantorsGuarantor, any amount paid by either the Company or the Guarantor to the Trustee Agent or such HolderLender, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each The Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders Lenders or the Agent in respect of any obligations guaranteed hereby under this Guarantee until payment in full of all obligations guaranteed hereby. Each The Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders Lenders and the TrusteeAgent, on the other hand, (x) the maturity of the obligations guaranteed hereby under this Guarantee may be accelerated as provided in Section 6.02 Article VI hereof for the purposes of this Subsidiary Guaranteehereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article VI hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Subsidiary Guarantee. Subject to this Article 1011, each of the Guarantors hereby hereby, jointly and severally, unconditionally guarantee 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 or the obligations of the Company hereunder or thereunder, that: (a) the due and punctual payment principal of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodand Registration Default Damages, if any, will be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest on the Notes, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall 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 pursuant to Section 6.02, redemption or otherwise. 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.
(1) any principles or provisions of law. The Guarantors hereby agree that their obligations hereunder shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and 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 circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor’s obligations hereundera guarantor. Each Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) any defenses or benefits all demands whatsoever and covenant 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Sources: Indenture (Scotts Company)
Subsidiary Guarantee. Subject to this Article 10Section 10.06 of the Indenture, the Guarantors hereby each Subsidiary Guarantor hereby, jointly and severally, unconditionally guarantee guarantees to each Holder of a Senior Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Senior Notes and the Obligations of the Company under the Senior Notes or under the Indenture, that: (a) the due and punctual payment of the principal of, premium, if any, interest and interest Liquidated Damages, if any, on the NotesSenior Notes will be promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and principal, premium, if any, and, (to the extent permitted by law, ) interest on any interest, if any, and Liquidated Damages, if any, on the due Senior Notes and punctual performance of all other obligations payment Obligations of the Company to the Holders or the Trustee under this the Indenture or under the Senior Notes will be promptly paid in full and the Notesperformed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Senior Notes or any of such other obligationspayment Obligations, that the same shall 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 pursuant to Section 6.02acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall will be jointly and severally obligated to pay the same immediately. Each The obligations of the Subsidiary Guarantor agrees that to the Holders and to the Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture, and reference is hereby made to such Indenture for the precise terms of this Subsidiary Guarantee. The terms of Articles 10 of the Indenture are incorporated herein by reference. This Subsidiary Guarantee is subject to release as and to the extent provided in Section 10.04 of the Indenture. This is a guarantee continuing Guarantee and shall remain in full force and effect and shall be binding upon each Subsidiary Guarantor and its respective successors and assigns to the extent set forth in the Indenture until full and final payment of all of the Company's Obligations under the Senior Notes and the Indenture and shall inure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges herein conferred upon that party shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions hereof. This is a Subsidiary Guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its This Subsidiary Guarantee shall not be discharged except valid or obligatory for any purpose until the certificate of authentication on the Senior Note upon which this Subsidiary Guarantee is noted shall have been executed by complete performance the Trustee under the Indenture by the manual signature of one of its authorized officers. For purposes hereof, each Subsidiary Guarantor's liability shall be limited to the lesser of (i) the aggregate amount of the obligations contained Obligations of the Company under the Senior Notes and the Indenture and (ii) the amount, if any, which would not have (A) rendered such Subsidiary Guarantor "insolvent" (as such term is defined in the Bankruptcy Law and in the Debtor and Creditor Law of the State of New York) or (B) left such Subsidiary Guarantor with unreasonably small capital at the time its Subsidiary Guarantee and this Indenture. If of the Senior Notes was entered into; provided that, it will be a presumption in any Holder lawsuit or other proceeding in which a Subsidiary Guarantor is a party that the Trustee is required by any court or otherwise to return amount guaranteed pursuant to the CompanySubsidiary Guarantee is the amount set forth in clause (i) above unless any creditor, or representative of creditors of such Subsidiary Guarantor, or debtor in possession or trustee in bankruptcy of such 103 Subsidiary Guarantor, otherwise proves in such a lawsuit that the aggregate liability of the Subsidiary Guarantor is limited to the amount set forth in clause (ii) above. The Indenture provides that, in making any determination as to the solvency or sufficiency of capital of a Subsidiary Guarantor in accordance with the previous sentence, the right of such Subsidiary Guarantors to contribution from other Subsidiary Guarantors and any other rights such Subsidiary Guarantors may have, contractual or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore dischargedotherwise, shall be reinstated taken into account. Capitalized terms used herein have the same meanings given in full force the Indenture unless otherwise indicated. Dated as of , 1997 CONTINENTAL CONVEYOR & EQUIPMENT COMPANY ----------- By: ------------------------------------ Name: Title: Dated as of , 1997 GOOD▇▇▇ ▇▇▇VEYOR COMPANY ----------- By: ------------------------------------ Name: Title: 104 Exhibit E FORM OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of ___________, 1997 between Subsidiary Guarantor (the "New Subsidiary Guarantor"), a subsidiary of Continental Global Group, Inc., a Delaware corporation (the "Company"), and effect. Each 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 obligations guaranteed hereby. Each Guarantor further agrees thatNorwest Bank Minnesota, National Association, as between trustee under the Guarantors, on indenture referred to below (the one hand, "Trustee"). Capitalized terms used herein and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the purposes of this Subsidiary 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 Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors defined herein shall have the right meaning ascribed to seek contribution from any non-paying Guarantor so long them in the Indenture (as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guaranteedefined below).
Appears in 1 contract
Sources: Indenture (Goodman Conveyor Co)
Subsidiary Guarantee. Subject to this Article 10For good and valuable consideration, the Guarantors receipt and sufficiency of which is hereby acknowledged, subject to Section 10.10, each Subsidiary Guarantor, jointly and severally, hereby unconditionally guarantee guarantees (such guarantees, together with further guarantees granted from time to time pursuant to Section 10.13, being the "Subsidiary Guarantee") to each Holder of a Note authenticated and delivered by the Trustee and to irrespective of the Trustee and its successors and assignsvalidity or enforceability of this Indenture, the Notes, the Security Documents, the Registration Rights Agreement or the Obligations of the Issuers hereunder or thereunder: (ai) the due and punctual payment of the principal of, and premium, if any, of, and interest on on, the NotesNotes (including, subject without limitation, interest after the filing of a petition initiating any proceedings referred to any applicable grace periodin Section 6.1(j) or (k)), whether at Stated Maturitymaturity or on an interest payment date, by acceleration, call for redemption or otherwise, ; (ii) the due and punctual payment of interest on the overdue principal of and premium, if any, and, to the extent permitted by law, interestof, and interest on, the Notes, if lawful; (iii) the due and punctual payment and performance of all other obligations Obligations of the Company to Issuers under the Holders or Notes, this Indenture, the Trustee under this Indenture Security Documents and the NotesRegistration Rights Agreement, all in accordance with the terms hereof set forth herein and thereofin the Notes, the Security Documents and the Registration Rights Agreement; and (biv) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations hereunder or under the Notes, that same shall be promptly paid in full when the Security Documents or the Registration Rights Agreement, the due and punctual payment or performed performance thereof in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration pursuant to Section 6.02, redemption or otherwise. Failing payment when due by the Issuers 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 hereby agrees that this is a guarantee of payment and not a guarantee of collection.
(1i) any principles or provisions of lawits obligations hereunder shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and validity, regularity or enforceability of the Notes, this Indenture, the Security Documents, the Registration Rights Agreement or the Obligations of the Issuers hereunder or thereunder, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, any releases of Collateral, any amendment of this Indenture, the Notes or Security Documents, any delays in obtaining or realizing upon or failures to obtain or realize upon Collateral, the recovery of any judgment against either of the Issuers or any of the Subsidiaries, any action to enforce the same, or any other circumstance that might otherwise constitute a legal or equitable discharge or defense of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims a guarantor and (4ii) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee and Obligations of the Issuers under the Notes, this Indenture, the Security Documents and the Registration Rights Agreement. Each Subsidiary Guarantor hereby agrees that it shall not be entitled to and irrevocably waives (i) diligence, presentment, demand of payment, filing of claim with a court in the event of insolvency or bankruptcy of either of the Issuers, any Subsidiary Guarantor, any other Subsidiary or any other obligor under the Notes, any right to require a proceeding first against the applicable Issuer, any Subsidiary Guarantor, any other Subsidiary or any other obligor under this Indenture, the Notes or the Security Documents, protest, notice and all demands whatsoever, (ii) any right of subrogation, reimbursement, exoneration, contribution or indemnification in respect of any Obligations guaranteed hereby and (iii) any claim or other rights that it may now or hereafter acquire against the Issuers or any of the Subsidiaries that arise from the existence or performance of its Obligations under this Subsidiary Guarantee, including, without limitation, any right to participate in any claim or remedy of a Holder against the Issuers or any of the Subsidiaries or any Collateral that a Holder now has or hereafter acquires, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, and including, without limitation, the right to take or receive from the Issuers or any of the Subsidiaries, directly or indirectly, in cash or other property, by setoff or in any other manner, payment or security on account of such claim or other rights. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers, any Subsidiary Guarantor, any other Subsidiary of the Issuers or any other obligor under this Indenture, the Guarantors Notes or any custodianthe Security Documents, trustee, liquidator liquidator, or other similar official acting in relation to either the Company or the Guarantorsofficial, any amount paid by either the Issuers, any Subsidiary Guarantor, any other Subsidiary of the Issuers or any other obligor under this Indenture, the Notes or the Security Documents to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof 6.2 for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect as to the Issuers of the obligations Obligations guaranteed hereby hereby, and (yii) in the event of any declaration of acceleration of such obligations those Obligations as provided in Section 6.02 hereof6.2, such obligations those Obligations (whether or not due and payable) shall will forthwith become due and payable by each of the Subsidiary Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Sources: Indenture (Majestic Star Casino LLC)
Subsidiary Guarantee. (a) Subject to this Article 10, each of the Subsidiary Guarantors hereby shall, jointly and severally, irrevocably and unconditionally 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 and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the due and punctual payment of the principal of, premium, if any, and or interest on the Notes, subject to any applicable grace periodNotes shall be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest on the Notes, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations Obligations of the Company to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same 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 pursuant to Section 6.02, redemption or otherwise. 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.
(1b) any principles or provisions of lawThe Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and 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 circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor’s obligations hereundera guarantor. Each Subsidiary Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. .
(c) 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 Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. .
(d) 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary 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 Subsidiary GuaranteeGuarantees.
(e) Each Subsidiary 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, 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 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 or Subsidiary 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.
(f) In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(g) Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
(h) All provisions set forth herein with respect to the Subsidiary Guarantees are subject to the Agreed Security Principles.
Appears in 1 contract
Sources: Indenture (Maxar Technologies Inc.)
Subsidiary Guarantee. Subject to this Article 10Each Guarantor hereby fully, the Guarantors hereby unconditionally guarantee and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally with each other Guarantor, to each Holder of a Note authenticated and delivered by the Notes, the Trustee and to the Trustee and its successors and assigns: (a) Collateral Agent the due full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace period, whether at Stated Maturity, by acceleration, redemption or otherwise, Notes and all other Obligations of the due Company under this Indenture and punctual payment of interest on the overdue principal of and premium, if any, and, other Notes Documents. Each Guarantor further agrees (to the extent permitted by law) that the Obligations may be extended or renewed, interestin whole or in part, without notice or further assent from it, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee that it will remain bound under this Indenture and the Notes, all in accordance with the terms hereof and thereof; and (b) in case of Article X notwithstanding any extension of time of payment or renewal of any Notes or any of such other obligations, that same 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 pursuant to Section 6.02, redemption or otherwise. 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 immediatelyObligation. Each Guarantor agrees that this is a guarantee waives presentation to, demand of payment from and not a guarantee protest to the Company of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees Obligations and any legal or equitable discharge also waives notice of such Guarantor’s obligations hereunder, (2) the benefit protest for nonpayment. Each Guarantor waives notice of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary Guarantees, notices of Default default under the Notes or the Obligations. The obligations of each Guarantor hereunder shall not be 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 instrument related thereto, notices of otherwise; (b) any renewal, extension or modification renewal of the Obligations under the Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (gc) to any rescission, waiver, amendment or modification of any of the extent permitted under applicable lawterms or provisions of this Indenture, the benefits Notes or any other agreement; (d) the release of any “One Action” rule and (h) any defenses or benefits that may be derived from or afforded Note held by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. If any Holder or the Trustee is required or the Collateral Agent for the Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; or (f) any change in the ownership of the Company. Each Guarantor further agrees that its Subsidiary 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 court Holder to any Note held for payment of the Obligations. Except as expressly set forth in Article VIII and Section 10.2, 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 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 Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise to return to affected by the Companyfailure of the Trustee, the Guarantors Collateral Agent or any custodianHolder to assert any claim or demand or to enforce any remedy under this Indenture, trusteethe Notes or any other agreement, liquidator by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other similar official acting act or thing or omission or delay to do any other act or thing which may or might in relation any manner or to either 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. Each Guarantor further agrees that its Subsidiary Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the Guarantorsforegoing 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 amount paid of the Obligations when and as the same shall become due, whether at maturity, by either acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee Trustee, forthwith pay, or such Holdercause to be paid, this Subsidiary Guaranteein cash, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation Holders an amount equal to the Holders sum of (i) the unpaid amount of such Obligations then due and owing and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law) and except as provided in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed herebySection 10.2. Each Guarantor further agrees that, as between the Guarantorssuch Guarantor, on the one hand, and the Holders and the TrusteeHolders, on the other hand, (x) the maturity of the obligations guaranteed Obligations Guaranteed hereby may be accelerated as provided in Section 6.02 hereof this Indenture for the purposes of this its Subsidiary GuaranteeGuarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed Obligations Guaranteed hereby and (y) in the event of any such declaration of acceleration of such obligations as provided in Section 6.02 hereofObligations, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose purposes of this Subsidiary Guarantee. The Guarantors shall have Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the right to seek contribution from any non-paying Guarantor so long as Trustee, the exercise of such right does not impair the rights of Collateral Agent or the Holders in enforcing any rights under the Subsidiary Guaranteethis Section 10.1.
Appears in 1 contract
Sources: Indenture (Venoco, Inc.)
Subsidiary Guarantee. Subject to this Article 1011, each of the Guarantors hereby hereby, jointly and severally, unconditionally guarantee 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 or the Obligations of the Company hereunder or thereunder, that:
(ai) the due and punctual payment principal of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodNotes will be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest on the Notes, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations Obligations of the Company to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and and
(bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that same shall 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 pursuant to Section 6.02, redemption or otherwise. 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 Guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law. The Guarantors hereby agree that their Obligations hereunder shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and 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 circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor’s obligations hereundera guarantor. Each Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or suretiesall demands whatsoever and covenants that, or which may conflict with the terms of the Subsidiary Guarantees. Except to the extent expressly except as provided hereinin this Indenture, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations Obligations contained in its Subsidiary Guarantee the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to 106 113 the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 payments made hereunder until payment in full of all obligations guaranteed Obligations Guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the obligations guaranteed Obligations Guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (yii) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary 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 this Subsidiary Guarantee.
Appears in 1 contract
Sources: Indenture (Advancepcs Research LLC)
Subsidiary Guarantee. Subject to this Article 10Each of the Subsidiary Guarantors hereby, the Guarantors hereby jointly and severally, fully and unconditionally guarantee 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 or the obligations of the Company hereunder or thereunder, that: (a) the due and punctual payment principal of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodNotes will be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest on the Notes, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees The Subsidiary Guarantors hereby agree that this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of lawtheir obligations hereunder shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and 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 circumstance which might otherwise constitute a legal or equitable discharge or defense of such a Subsidiary Guarantor’s obligations hereunder. Each Subsidiary Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) any defenses or benefits all demands whatsoever and covenant 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyCompany or Subsidiary Guarantors, the Guarantors or any custodianCustodian, trusteeTrustee, liquidator or other similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by either any such entity to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article 6 for the purposes of this the Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereofArticle 6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Sources: Indenture (Delta Financial Corp)
Subsidiary Guarantee. (a) Subject to this Article 1012, each of the Subsidiary Guarantors hereby hereby, jointly and severally, unconditionally guarantee guarantees to each Holder of a Note Security 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 Securities or the obligations of the Company hereunder or thereunder, that:
(ai) the due and punctual payment of the principal of, premium, if any, and interest on (including any Additional Payment, Additional Interest or Extension Fee) on, the Notes, subject to any applicable grace periodSecurities will be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption redemption, required repurchase or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest on the Securities, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and and
(bii) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, that same shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall 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.
(1b) any principles or provisions of lawThe Subsidiary Guarantors hereby agree that their obligations hereunder are unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor’s obligations hereundera guarantor. Each Subsidiary Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) any defenses or benefits all demands whatsoever and covenant 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Securities and this Indenture. .
(c) 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 Subsidiary Guarantee, to the extent theretofore discharged, shall will be reinstated in full force and effect. .
(d) Each Subsidiary Guarantor agrees that it shall 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 Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y2) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article 6 hereof, such obligations (whether or not due and payable) shall will forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall will 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 Subsidiary Guarantee.
Appears in 1 contract
Sources: Indenture (Titan International Inc)
Subsidiary Guarantee. Subject to this Article 10Section 1601, each Guarantor unconditionally guarantees, jointly with the other Guarantors hereby unconditionally guarantee and severally, as a primary obligor and not merely as a surety, to each Holder of a Note Security authenticated and delivered by the Trustee Trustees and to the Trustee and its successors and assigns: (a) the due and punctual payment by the Company of (i) the principal of, premium, if any, and interest on the Notes, subject to any applicable grace period, whether at Stated Maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, andand interest (including interest accruing during the pendency of any bankruptcy, to the extent permitted insolvency, receivership or other similar proceeding, regardless of whether such interest is allowed or allowable as a claim in such proceeding) on such Security, when and as due, whether at Maturity, by lawacceleration, interest, upon one or more dates set for prepayment or otherwise and the due and punctual performance of (ii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether such monetary obligations are allowed or allowable as a claim in 84 such proceeding), of the Company to the Holders or the Trustee under this Indenture and the NotesSecurities, (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Company under or pursuant to this Indenture and the Securities and (c) the due and punctual payment and performance of all the covenants, agreements, obligations and liabilities of each other Guarantor under or pursuant to this Indenture and the Securities (all the monetary and other obligations described in accordance with the terms hereof preceding clauses (a) through (c) being collectively called the "Guaranteed Obligations"). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and thereof; that it will remain bound upon the Subsidiary Guarantee notwithstanding any extension or renewal of any obligation. Anything contained in this Indenture to the contrary notwithstanding, the obligations of each Guarantor under this Indenture, the Securities and any Subsidiary Guarantees shall be limited to a maximum aggregate amount equal to the greatest amount that would not render such Guarantor's obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any provisions of applicable state law (collectively, the "Fraudulent Transfer Laws"), in each case after giving effect to all other liabilities of such Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Guarantor (a) in respect of intercompany indebtedness to the Company or Affiliates of the Company to the extent that such indebtedness would be discharged in an amount equal to the amount paid by such Guarantor hereunder and (b) under any guarantee of senior unsecured indebtedness or indebtedness subordinated in case right of payment to the Guaranteed Obligations, which guarantee contains a limitation as to maximum amount similar to that set forth in this paragraph, pursuant to which the liability of such Guarantor hereunder is included in the liabilities taken into account in determining such maximum amount) and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any extension rights to subrogation, contribution, reimbursement, indemnity or similar rights of time such Guarantor pursuant to (i) applicable law or (ii) any agreement providing for an equitable allocation among such Guarantor and other Affiliates of the Company of obligations arising under the Subsidiary Guarantees by such parties. To the fullest extent permitted by applicable law, each Guarantor waives presentment to, demand of payment or renewal from and protest to the Company of any Notes of the Guaranteed Obligations, and also waives notice of acceptance of the Subsidiary Guarantee and notice of protest for nonpayment. To the fullest extent permitted by applicable law and except as otherwise contemplated herein, the obligations of each Guarantor under this Indenture, the Securities and any Subsidiary Guarantees shall not be affected by (a) the failure of the Trustee or the Holders to assert any claim or demand or to enforce or exercise any right or remedy against the Company or any other Guarantor under this Indenture, the Securities, any Subsidiary Guarantees or otherwise or (b) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of this Indenture, the Securities, any Subsidiary Guarantees or any other agreement, including with respect to any other Guarantor under this Indenture. Each Guarantor further agrees that the Subsidiary Guarantee constitutes a guarantee of payment when due and not of collection, and waives any right to require that any resort be had by the Trustee or the Holders to any of the security held for payment of the Guaranteed Obligations or to any balance of any deposit account or credit on the books of the Trustee or the Holders in favor of the Company or any other Person. The obligations of each Guarantor shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Guaranteed Obligations), including any claim or waiver, release, surrender, alteration or compromise of any of the Guaranteed Obligations, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor shall not be discharged or impaired or otherwise affected by the failure of the Trustee or the Holders to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Guarantor or that would otherwise operate as a discharge of each Guarantor as a matter of law or equity (other than the indefeasible payment in full in cash of all the Guaranteed Obligations) or which would impair or eliminate any right of such Guarantor to subrogation. To the fullest extent permitted by applicable law, each of the Guarantors waives any defense based on or arising out of any defense of the Company or the unenforceability of the Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Company, other than the indefeasible payment in full in cash of all the Guaranteed Obligations. The Trustee and the Holders may, at their election, compromise or adjust any part of the Guaranteed Obligations, make any other accommodation with the Company or any other Guarantor or exercise any other right or remedy available to them against the Company or any other Guarantor, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent that all the Guaranteed Obligations have been indefeasibly paid in full in cash. Pursuant to applicable law, each of the Guarantors waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor against the Company or any other Guarantor. In furtherance of the foregoing and not in limitation of any other right that the Trustee or any of such the Holders has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company or any other obligations, that Guarantor to pay any Guaranteed Obligation when and as the same shall become due, whether at Maturity, by acceleration, after notice of prepayment or otherwise, each Guarantor hereby promises to and will forthwith pay, or cause to be promptly paid paid, to the Trustee or the Holders, as the case may be, in cash the amount of such unpaid Guaranteed Obligations. Upon payment by any Guarantor of any sums to the Trustee or any Holder, as the case may be, as provided above, all rights of such Guarantor against the Company arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respect be subordinate and junior in right of payment to the prior indefeasible payment in full when due in cash of all the Guaranteed Obligations. In addition, any indebtedness of the Company now or performed hereafter held by any Guarantor is hereby subordinated in right of payment to the prior payment in full in cash of the Guaranteed Obligations. If any amount shall erroneously be paid to any Guarantor on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of 86 the Company, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Trustee or the Holders, as the case may be, to be credited against the payment of the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms of this Indenture and the extension or renewalSecurities. Each of the Guarantors assumes all responsibility for being and keeping itself informed of the Company's financial condition and assets, whether at Stated Maturityand of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, by acceleration pursuant scope and extent of the risks that such Guarantor assumes and incurs, and agrees that neither the Trustee nor the Holders will have any duty to Section 6.02, redemption or otherwise. Failing payment when due advise any of any amount so guaranteed the Guarantors of information known to it or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediatelyof them regarding such circumstances or risks. Each Guarantor agrees that this makes or is a guarantee required to make any payment in respect of payment and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might its Subsidiary Guarantee shall be in conflict with entitled to seek contribution from the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) other Guarantors to the extent permitted under by applicable law, the benefits of any “One Action” rule law and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the purposes of this Subsidiary 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 Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary 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 Subsidiary Guaranteedetermined otherwise.
Appears in 1 contract
Sources: Indenture (Winn Dixie Logistics Inc)
Subsidiary Guarantee. (a) Subject to this Article 10, in the Guarantors hereby event that any Restricted Subsidiary of the Company shall execute and deliver a supplemental indenture to this Indenture with respect to a Subsidiary Guarantee (as required by Section 10.02 hereof or otherwise), any such Guarantor shall, jointly and severally, unconditionally 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 and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (ai) the due and punctual payment principal of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodNotes will be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest on the Notes, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall 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 pursuant to Section 6.02, redemption 7.02 hereof or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors any Guarantor shall be jointly and severally obligated to pay the same immediately. Each Any Guarantor also agrees that this is a guarantee of payment and not a guarantee of collection.
(1b) Any Guarantor agrees that its obligations with regard to such Subsidiary Guarantee shall be joint and several, unconditional, irrespective of the validity or 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 circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Any Guarantor further, to the 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 Company (each a “Benefited Party”), as a condition of payment or performance by such Guarantor, to (A) proceed against the Company, any other guarantor (including any other Guarantor) of the obligations under the Subsidiary Guarantees or any other person, (B) proceed against or exhaust any security held from the Company, any such other guarantor or any other person, (C) proceed against or have resort to any balance of any deposit account or credit on the books 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; (ii) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of the Company including any defense based on or arising out of the lack of validity or the unenforceability of the obligations under the Subsidiary
(A) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2B) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3C) any rights to set-offs, recoupments and counterclaims and (4D) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (fvi) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary Guarantees, notices of Default default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Obligations obligations under the Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (gvii) to the extent permitted under applicable law, the benefits of any “One Action” rule and (hviii) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections Section 8.02, 8.03 and 10.05, each any Guarantor hereby covenants that its Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. .
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the any Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the any Guarantors, any amount paid by either to the Trustee or such Holder, this any Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each .
(d) Any 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 obligations guaranteed hereby. Each Any Guarantor further agrees that, as between the any Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 7.02 hereof for the purposes of this any Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby and (yii) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 7.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the any Guarantors for the purpose of this any such Subsidiary Guarantee. The Any 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 Subsidiary Guarantee.
Appears in 1 contract
Subsidiary Guarantee. Subject to this Article 10The Subsidiary Guarantors, the Guarantors hereby unconditionally fully and unconditionally, jointly and severally, on an unsecured senior subordinated basis, guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns: (ai) the due and punctual payment of the principal of, premium, premium (if any, ) and interest on each Note, when and as the Notes, subject to any applicable grace periodsame shall become due and payable, whether at Stated Maturitymaturity, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, andinterest on the Notes, to the extent permitted by law, interestlawful, and the due and punctual payment of all other obligations and due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the Notes, all in accordance with the terms hereof of such Note, this Indenture and thereof; the Registration Rights Agreement, and (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 shall 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 pursuant to Section 6.02, redemption or otherwise. 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 Subsidiary Guarantor agrees that its 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 is a guarantee of payment and not a guarantee of collection.
(1) Indenture, any principles or failure to enforce the provisions of lawany such Note, statutory this Indenture or otherwisethe Registration Rights Agreement, any waiver, modification or indulgence granted to the Company with respect thereto by the Holder of such Note, or any other circumstances which are or might be in conflict with the terms of the Subsidiary Guarantees and any may otherwise constitute a legal or equitable discharge of a surety or such Subsidiary Guarantor’s obligations hereunder. Each Subsidiary Guarantor hereby waives diligence, (2) presentment, demand for payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder merger or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent require a proceeding first against the Company, protest or notice with respect to any thereof; (g) to such Note or the extent permitted under applicable lawDebt evidenced thereby and all demands whatsoever, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged as to any such Note except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed herebythe principal thereof, premium (if any) and interest thereon. Each Subsidiary Guarantor further hereby agrees that, as between the Guarantorssuch Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article Six for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (yii) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereofArticle Six, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors each Subsidiary Guarantor for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Subsidiary Guarantee. Subject to this Article 10, the Subsidiary Guarantors hereby unconditionally guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns: (a) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace period, whether at Stated Maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, to the extent permitted by law, interest, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and Indenture, the NotesRegistration Rights Agreement or any other agreement with or for the benefit of the Holders or the Trustee, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same 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 pursuant to Section 6.02, redemption or otherwise. 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.
(1) any principles or provisions of law. Each Subsidiary Guarantor hereby agrees that its obligations with regard to its Subsidiary Guarantee shall be joint and several, statutory or otherwiseunconditional, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and validity or 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 circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of such a Subsidiary Guarantor’s obligations hereunder. Each Subsidiary Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and in this Indenture. 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 Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the purposes of this Subsidiary 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 Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.guaranteed
Appears in 1 contract
Subsidiary Guarantee. Subject to this Article 1011, each of the Subsidiary Guarantors hereby hereby, jointly and severally, unconditionally guarantee guarantees on a senior unsecured 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 or the obligations of the Company under this Indenture or the Notes, that: (a) the due and punctual payment principal of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodNotes shall be promptly paid in full when due, whether at Stated Maturity, upon redemption, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal of of, and premiumoverdue premium and interest on, the Notes, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations of the Company to Holders of the Holders Notes or the Trustee under this Indenture and or the NotesNotes shall be promptly paid in full or promptly performed, as the case may be, all in accordance with the terms hereof of this Indenture and thereof; the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, upon redemption, by acceleration pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or failing performance of any performance other obligation so guaranteed for whatever reason, the Guarantors each Subsidiary Guarantor shall be jointly and severally obligated to pay pay, or to perform or cause the performance of, the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms . Each of the Subsidiary Guarantees and Guarantors hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of this Indenture or the Notes, the release of any other Subsidiary Guarantor, 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 such a Subsidiary Guarantor’s obligations hereunder. Each Subsidiary Guarantor hereby waives, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under by applicable law, diligence, presentment, demand of payment, filing of claims with a court in the benefits event of any “One Action” rule and (h) any defenses insolvency 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 bankruptcy of the Subsidiary Guarantees. Except Company, any right to require a proceeding first against the extent expressly provided hereinCompany, including Sections 8.02protest, 8.03 notice and 10.05, each Guarantor hereby covenants all demands whatsoever and covenant that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. Unless and until released with respect to any Subsidiary Guarantor in accordance with Section 11.04 of this Indenture, this Subsidiary 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 custodian, trustee, liquidator or other similar official be appointed for all or any part of the Company’s assets. If any Holder of the Notes or the Trustee is required by any court or Governmental Authority or is otherwise required to return to the Company, the Guarantors any Subsidiary Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorssuch Subsidiary Guarantor, any amount paid by either the Company or such Subsidiary Guarantor to the Trustee or such Holder, the Notes and this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees (to the fullest extent permitted by law) that, as between the Guarantorsit, on the one hand, and the Holders of the Notes and the Trustee, on the other hand, (xa) subject to this Article 11, the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the purposes of this Subsidiary GuaranteeArticle 6, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (yb) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereofArticle 6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Sources: Indenture (Service Properties Trust)
Subsidiary Guarantee. Subject to this Article 10Twelve, each of the Subsidiary Guarantors hereby jointly, severally and unconditionally guarantee guarantees to each Holder of a Note Notes 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 or the obligations of the Company under this Indenture or the Notes, that:
(a) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodNotes shall be promptly paid in full when due, whether at Stated Maturity, upon redemption or repurchase, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, to the extent permitted by law, interest, and the due and punctual performance of all other obligations of the Company to Holders of the Holders Notes or the Trustee under this Indenture and or the NotesNotes shall be promptly paid in full or promptly performed, as the case may be, all in accordance with the terms hereof of this Indenture and thereofthe Notes; and and
(b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, upon redemption or repurchase, by acceleration pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or failing performance of any performance other obligation so guaranteed for whatever reason, the Guarantors each Subsidiary Guarantor shall be jointly and severally obligated to pay pay, or to perform or cause the performance of, the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms . Each of the Subsidiary Guarantees and Guarantors hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of this Indenture or the Notes, the release of any other Subsidiary Guarantor, 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 such a Subsidiary Guarantor’s obligations hereunder. Each Subsidiary Guarantor hereby waives, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under by applicable law, diligence, presentment, demand of payment, filing of claims with a court in the benefits event of any “One Action” rule and (h) any defenses insolvency 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 bankruptcy of the Subsidiary Guarantees. Except Company, any right to require a proceeding first against the extent expressly provided hereinCompany, including Sections 8.02protest, 8.03 notice and 10.05, each Guarantor hereby covenants all demands whatsoever and covenant that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. Unless and until released with respect to any Subsidiary Guarantor in accordance with Section 12.04 of this Indenture, this Subsidiary 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 custodian, trustee, liquidator or other similar official be appointed for all or any part of the Company’s assets. If any Holder of the Notes or the Trustee is required by any court or governmental authority or is otherwise required to return to the Company, the Guarantors any Subsidiary Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorssuch Subsidiary Guarantor, any amount paid by either the Company or such Subsidiary Guarantor to the Trustee or such Holder, the Notes and this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees (to the fullest extent permitted by law) that, as between the Guarantorsit, on the one hand, and the Holders of the Notes and the Trustee, on the other handother, (xa) subject to this Article Twelve, the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article Five of this Indenture, for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (yb) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereofsuch Article Five, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Sources: Senior Priority Guaranteed Unsecured Notes (Office Properties Income Trust)
Subsidiary Guarantee. Subject to the provisions of this Article 10XII, the Guarantors each Subsidiary Guarantor hereby jointly and severally unconditionally guarantee guarantees to each Holder of a Note Security 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 Securities or the obligations of the Company or any other Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder, that: (a) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodSecurities will be duly and punctually paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, (to the extent permitted by law, ) interest, if any, on the Securities and the due and punctual performance of all other obligations of the Company or the Subsidiary Guarantors to the Holders or the Trustee under hereunder or thereunder (including fees or expenses) and all other obligations with respect to the Securities and this Indenture and the Noteswill be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsSecurities, that the same shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed guaranteed, or failing performance of any performance so guaranteed other obligation of the Company to the Holders, for whatever reason, the Guarantors shall each Subsidiary Guarantor will be jointly and severally obligated to pay pay, or to perform or cause the performance of, the same immediately. Each Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Securities shall constitute an event of payment default under this Subsidiary Guarantee, and not a guarantee shall entitle the Holders of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with Securities to accelerate the terms obligations of the Subsidiary Guarantees Guarantors hereunder in the same manner and to the same extent as the obligations of the Company. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any holder of the Securities 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, whether or not a Subsidiary Guarantee is affixed to any particular Security, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor’s obligations hereunder, (2) a guarantor. Each of the Subsidiary Guarantors hereby waives the benefit of any statute diligence, presentment, demand of limitations affecting such Guarantor’s liability hereunder payment, filing of claims with a court in the event of insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants cove- nants that its Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Securities, this Indenture and this IndentureSubsidiary Guarantee. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyCompany or to any Subsidiary Guarantor, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorssuch Subsidiary Guarantor, any amount paid by either the Company or such Subsidiary Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders of Securities and the Trustee, on the other hand, (xa) subject to this Article XII, the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article VI hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (yb) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article VI hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. This Subsidiary 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 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 Securities are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities, 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 Securities 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. No stockholder, officer, director, employer or incorporator, past, present or future, or any Subsidiary Guarantor, as such, shall have any personal liability under this Subsidiary Guarantee by reason of his, her or its status as such stockholder, officer, director, employer or incorporator. 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 this Subsidiary Guarantee. Each Subsidiary Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is the intention of all such parties that the guarantee by each Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. To effectuate the foregoing intention, the Holders and each Subsidiary Guarantor hereby irrevocably agrees that the obligations of each Subsidiary Guarantor under the Subsidiary GuaranteeGuarantees shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of each Subsidiary Guarantor (including, but not limited to, the Guarantor Senior Indebtedness of each Subsidiary Guarantor) result in the obligations of each Subsidiary Guarantor under the Subsidiary Guarantees not constituting such fraudulent transfer or conveyance.
Appears in 1 contract
Subsidiary Guarantee. Subject to this Article 10CRLP hereby acknowledges and agrees that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, the Guarantors including, without limitation, such substantial benefits. Accordingly, CRLP hereby fully and unconditionally guarantee guarantees to each Holder of a Note Notes that are authenticated by the Trustee and delivered by the Trustee and to or the Trustee and its successors and assignsOperating Partnership that: (ai) the due and punctual payment of the principal of, and premium, if any, and interest on on, the Notes, subject to any applicable grace periodNotes shall be duly and punctually paid in full when due, whether at Stated Maturity, by upon acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, the due and punctual payment of interest on the overdue principal of of, and overdue premium, if any, andand interest on, to the extent permitted by law, interest, Notes shall be duly and the due punctually paid in full when due; and punctual performance of (iii) all other obligations of the Company Operating Partnership to the Holders of Notes or (solely insofar as it relates to the Notes) to the Trustee under this the Indenture or under the Notes (including, without limitation, obligations to pay fees, expenses or other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the Notescase may be, all in accordance with the terms hereof of the Indenture and thereof; and (b) the Notes, and, in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same shall be promptly duly and punctually paid in full when due due, whether at Stated Maturity, by acceleration, call for redemption or performed otherwise, or duly and punctually performed, as the case may be, in accordance with the terms of the extension or renewal, whether at Stated Maturitysubject, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 of the Indenture (such Section 1703 having been added to the Original Indenture by acceleration pursuant the First Supplemental Indenture) and, in each case referred to Section 6.02above, redemption or otherwiseon the other terms and conditions set forth in Article Seventeen of the Indenture (such Article Seventeen having been added to the Original Indenture by the First Supplemental Indenture). Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reasonWithout limitation to the foregoing, the Guarantors CRLP agrees that it shall be jointly bound by, and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment it shall comply with and not a guarantee of collection.
(1) any principles or provisions of lawperform, statutory or otherwise, which are or might be in conflict with the terms all of the Subsidiary Guarantees covenants, obligations and any legal or equitable discharge of such Guarantor’s obligations hereunderagreements to be complied with and performed by CRLP under the Indenture (including, (2without limitation, Article Seventeen thereof) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of under the Subsidiary Guarantees, notices of Default under the Notes or any agreement or instrument related theretoif any, notices of any renewal, extension or modification of the Obligations under the Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, endorsed on the one hand, and certificates evidencing the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the purposes of this Subsidiary 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 Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary 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 Subsidiary GuaranteeNotes.
Appears in 1 contract
Sources: First Supplemental Indenture (Mid-America Apartments, L.P.)
Subsidiary Guarantee. Subject to the provisions of this Article 10X, the Guarantors hereby Guarantor unconditionally guarantee and irrevocably guarantees to each Holder of a Note authenticated Lender and delivered by the Trustee Agent and to the Trustee and its their respective successors and assigns, that: (ai) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to Advances and any applicable grace periodpromissory note issued hereunder will be duly and punctually paid in full when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, the due and punctual payment of interest on the overdue principal of principal, and premium, if any, and, and (to the extent permitted by law, ) interest on any interest, if any, on the Advances, any promissory note issued hereunder and the due and punctual performance of all other obligations of the Company to the Holders Lenders or the Trustee under this Indenture Agent hereunder (including fees and the Notesexpenses) will be promptly paid in full, all in accordance with the terms hereof and thereofhereof; and (bii) in case of any extension of time of payment or renewal of any Notes of the Advances or any of such other obligations, that the same shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed guaranteed, or failing performance of any performance so guaranteed other obligation of the Company to the Lenders or the Agent, for whatever reason, the Guarantors shall Guarantor will be jointly and severally obligated to pay pay, or to perform or to cause the performance of, the same immediately. Each An Event of Default under this Agreement shall constitute an event of default under this Guarantee, and shall entitle the Lenders to accelerate the obligations of the Guarantor agrees that under this is a guarantee Guarantee in the same manner and to the same extent as the obligations of payment and not a guarantee of collectionthe Company.
(1a) any principles right to require the Agent, the Lenders or provisions the Company (each, a "Benefitted Person") to proceed against the Company or any other Person or to proceed against or exhaust any security held by a Benefitted Person at any time or to pursue any other remedy in any secured party's power before proceeding against the Guarantor; (b) any defense that may arise by reason of lawthe incapacity, statutory lack of authority, death or otherwisedisability of any other Person or Persons or the failure of a Benefitted Person to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) demand, protest and notice of any kind (except as expressly required by this Agreement), including but not limited to notice of the existence, creation or incurring of any new or additional Debt or obligation or of any action or non-action on the part of the Guarantor, the Company, any Benefitted Person, any creditor of the Guarantor, the Company or on the part of any other Person whomsoever in connection with any obligations the performance of which are guaranteed under this Guarantee; (d) any defense based upon an election of remedies by a Benefitted Person, including but not limited to an election to proceed against the Guarantor for reimbursement; (e) any defense based upon any statute or might rule of law which provides that the obligation of a surety must be neither larger in conflict with the terms amount nor in other respects more burdensome than that of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject theretoprincipal; (f) noticesany defense arising because of a Benefitted Person's election, demandsin any proceeding instituted under the Bankruptcy Code, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary Guarantees, notices 364-Day Credit Agreement application of Default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification Section 1111(b)(2) of the Obligations under the Subsidiary Guarantees or any agreement related thereto, Bankruptcy Code; and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted any defense based on any borrowing or grant of a security interest under applicable law, the benefits of any “One Action” rule and (h) 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 Section 364 of the Subsidiary GuaranteesBankruptcy Code. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each The Guarantor hereby covenants that its Subsidiary this Guarantee shall will not be discharged except by complete performance payment in full of all principal, premium, if any, and interest on the obligations contained in its Subsidiary Advances and all other costs provided for under this Agreement. This is a Guarantee of payment and this Indenturenot of collectibility. If any Holder Lender or the Trustee Agent is required by any court or otherwise to return to either the CompanyCompany or the Guarantor, the Guarantors or any custodian, trustee, liquidator trustee or other similar official acting in relation to either the Company or the GuarantorsGuarantor, any amount paid by either the Company or the Guarantor to the Trustee Agent or such HolderLender, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each The Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders Lenders or the Agent in respect of any obligations guaranteed hereby under this Guarantee until payment in full of all obligations guaranteed hereby. Each The Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders Lenders and the TrusteeAgent, on the other hand, (x) the maturity of the obligations guaranteed hereby under this Guarantee may be accelerated as provided in Section 6.02 Article VI hereof for the purposes of this Subsidiary Guaranteehereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article VI hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Subsidiary Guarantee. Subject to this Article 10Each of the Subsidiary Guarantors hereby, the Guarantors hereby jointly and severally, fully and unconditionally guarantee 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 or the obligations of the Company hereunder or thereunder, that: (a) the due and punctual payment principal of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodNotes will be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest on the Notes, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall the principal of and interest on the Notes 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees The Subsidiary Guarantors hereby agree that this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of lawtheir obligations hereunder shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and 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 circumstance which might otherwise constitute a legal or equitable discharge or defense of such a Subsidiary Guarantor’s obligations hereunder. Each Subsidiary Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) any defenses or benefits all demands whatsoever and covenant 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyCompany or Subsidiary Guarantors, the Guarantors or any custodianCustodian, trusteeTrustee, liquidator or other similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by either any such entity to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article 6 for the purposes of this the Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereofArticle 6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Sources: Indenture (Df Special Holdings Corp)
Subsidiary Guarantee. Subject to the provisions of this Article 10, the Guarantors each Subsidiary Guarantor hereby jointly and severally unconditionally guarantee guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns: Trustee, on behalf of the Holders, (ai) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodwhen and as the same shall become due and payable, whether at Stated Maturitymaturity, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal of of, and premium, if any, andand interest on the Notes, to the extent permitted by law, interestlawful, and the due and punctual performance of all other obligations Obligations of the Company to the Holders or the Trustee under this Indenture and the Notes, all in accordance with the terms hereof and thereof; of this Indenture, and (bii) in the case of any extension of time of payment or renewal of any the Notes or any of such other obligationsObligations, that the same shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due Each Subsidiary Guarantor hereby agrees that its obligations hereunder shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any amount so guaranteed 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 the Holder of such Note or the Trustee, 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 other circumstances which may otherwise constitute a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of a surety or such Subsidiary Guarantor’s obligations hereunder. Each Subsidiary Guarantor hereby waives diligence, (2) presentment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder merger or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent require a proceeding first against the Company, protest or notice with respect to any thereof; (g) to such Note or the extent permitted under applicable lawDebt evidenced thereby and all demands whatsoever, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged as to any such Note except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed herebythe principal thereof, premium if any, and interest thereon and as provided in Section 9.01 hereof. Each Subsidiary Guarantor further agrees that, as between the Guarantorssuch Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby hereby, and (yii) in the event of any declaration of acceleration of such obligations Obligations as provided in Section 6.02 Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors each Subsidiary Guarantor for the purpose of this Subsidiary Guarantee. The Guarantors In addition, without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article 6 hereof, the Trustee 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 promptly make a demand for payment on all Obligations under the Subsidiary GuaranteeGuarantee provided for in this Article 10 and not discharged. The Subsidiary Guarantee set forth in this Section 10.01 shall not be valid or become obligatory for any purpose with respect to a Note until the certificate of authentication on such Note shall have been signed by or on behalf of the Trustee.
Appears in 1 contract
Subsidiary Guarantee. Subject to this Article 10the limitations set forth in the Indenture, the Guarantors hereby (as defined in the Indenture referred to in this Note and each hereinafter referred to as a "Guarantor," which term includes any successor or additional Guarantor under the Indenture) have, jointly and severally, irrevocably and unconditionally guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns: guaranteed (a) the due and punctual payment of the principal of, (and premium, if any, ) of and interest (including Additional Amounts, if any and Special Interest, if any) on the Notes, subject to any applicable grace period, whether at Stated Maturity, by acceleration, redemption call for redemption, upon a Change of Control Offer, Asset Sale Offer, offer to purchase upon a Termination of Trading, purchase or otherwise, (b) the due and punctual payment of interest on the overdue principal of and premiuminterest (including Additional Amounts, if any, andand Special Interest, if any) on the Notes, if any, to the extent permitted by lawlawful, interest, and (c) the due and punctual performance of all other obligations of the Company and the Guarantors to the Holders or under the Trustee under this Indenture and Indenture, the Notes, all in accordance with the terms hereof Collateral Documents and thereof; the Senior Note Collateral Documents and (bd) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same shall 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 pursuant acceleration, call for redemption, upon a Change of Control Offer, Asset Sale Offer, offer to Section 6.02purchase upon a Termination of Trading, redemption purchase or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reasonCapitalized terms used herein shall have the meanings assigned to them in the Indenture unless otherwise indicated. Payment on each Note is guaranteed, jointly and severally, by the Guarantors shall be jointly pursuant to Article X of the Indenture on a senior subordinated basis to the extent provided in the Indenture and severally obligated reference is made to pay such Indenture for the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the precise terms of the Subsidiary Guarantees and any legal or equitable discharge such subordination. The obligations of each Guarantor are limited to the lesser of (a) an amount equal to such Guarantor's Adjusted Net Assets as of the date of the Guarantee and (b) the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor’s Guarantor (including, if applicable, its obligations hereunder, (2under the Senior Notes) the benefit and after giving effect to any collections from or payments made by or on behalf of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each other Guarantor hereby covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby of such other Guarantor under its Guarantee or pursuant to its contribution obligations under the Indenture, result in the obligations of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law or not otherwise being void, voidable or unenforceable under any similar other bankruptcy, receivership, insolvency, liquidation or other similar legislation or legal principles under applicable foreign law. Each Guarantor that makes a payment or distribution under a Guarantee shall be entitled to a contribution from each other Guarantor in a pro rata amount based on the Adjusted Net Assets of each Guarantor. Certain of the Guarantors may be released from their Guarantees upon the terms and (y) subject to the conditions provided in the Indenture. 20 The Guarantee shall be binding upon each Guarantor and its successors and assigns and shall inure to the benefit of the Trustee and the Holders and, in the event of any declaration transfer or assignment of acceleration of rights by any Holder or the Trustee, the rights and privileges herein conferred upon that party shall automatically extend to and be vested in such obligations as provided transferee or assignee, all subject to the terms and conditions hereof and in Section 6.02 hereof, such obligations the Indenture. NWE CAPITAL (whether or not due and payableCYPRUS) shall forthwith become due and payable by the Guarantors for the purpose LIMITED By: /s/ Clay▇▇▇ ▇. ▇▇▇▇▇ _____________________________________ PLD ASSET LEASING LIMITED By: /s/ Clay▇▇▇ ▇. ▇▇▇▇▇ _____________________________________ PLD CAPITAL LIMITED By: /s/ Clay▇▇▇ ▇. ▇▇▇▇▇ _____________________________________ BALTIC COMMUNICATIONS LIMITED By: /s/ Clay▇▇▇ ▇. ▇▇▇▇▇ _____________________________________ WIRELESS TECHNOLOGY CORPORATIONS LIMITED By: /s/ Jame▇ ▇.▇. ▇▇▇▇ _____________________________________ SCHEDULE OF PRINCIPAL AMOUNT The initial principal amount at maturity of this Subsidiary GuaranteeNote shall be $26,500,000. The Guarantors shall following decreases/increase in the principal amount at maturity of this Note 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.been made: TOTAL PRINCIPAL AMOUNT AT NOTATION DECREASE IN INCREASE IN MATURITY MADE BY DATE OF PRINCIPAL PRINCIPAL FOLLOWING SUCH OR ON DECREASE/ AMOUNT AT AMOUNT AT DECREASE/ BEHALF OF INCREASE MATURITY MATURITY INCREASE TRUSTEE -------- -------- -------- -------- ------- ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------ ---------------------- ------------------------ ----------------- -------------------- ------------------
Appears in 1 contract
Subsidiary Guarantee. Subject to this Section 11.06 and Article 1012 hereof, each of the Guarantors hereby hereby, jointly and severally, unconditionally guarantee guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes and the Obligations of the Company hereunder and thereunder, that: (a) the due and punctual payment of the principal of, premium, if any, interest and interest Liquidated Damages, if any, on the NotesNotes will be promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and principal, premium, if any, and, (to the extent permitted by law, ) interest on any interest, if any, and Liquidated Damages, if any, on the due Notes, and punctual performance of all other obligations payment Obligations of the Company to the Holders or the Trustee under this Indenture hereunder or thereunder will be promptly paid in full and the Notesperformed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same shall 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 pursuant to Section 6.02acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, reason the Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Notes shall constitute an event of payment default under the Subsidiary Guarantees, and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with shall entitle the terms Holders to accelerate the Obligations of the Subsidiary Guarantees Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such a Guarantor’s obligations hereunder. Each Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged (subject to Section 11.04) except by complete performance of the obligations Obligations contained in its Subsidiary Guarantee the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Guarantors, or any custodianNote Custodian, trusteeTrustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article 6 for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Section 6.02 Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor and the Company so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees.
Appears in 1 contract
Sources: Indenture (Laralev Inc)
Subsidiary Guarantee. Subject to this the subordination provisions contained in Article 10X, the Subsidiary Guarantors hereby hereby, jointly and severally, unconditionally guarantee and irrevocably, Guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns: assigns (a) the due full and punctual payment of principal of and interest on the Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company 84 76 under this Indenture (including obligations to the Trustee) and the Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities (all the foregoing being hereinafter collectively called the "Obligations"). The Subsidiary Guarantors further agree that the Obligations may be extended or renewed, in whole or in part, without notice or further assent from the Subsidiary Guarantors, and that the Subsidiary Guarantors will remain bound under this Article XI notwithstanding any extension or renewal of any Obligation. The Subsidiary Guarantors waive presentation to, demand of, payment from and protest to the Company of any of the Obligations and also waive notice of protest for nonpayment. The Subsidiary Guarantors waive notice of any default under the Securities or the Obligations. The obligations of the Subsidiary Guarantors 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 Securities or any other agreement or otherwise; (b) any extension or renewal of any Obligation; (c) any rescission, waiver, amendment, modification or supplement of any of the terms or provisions of this Indenture (other than this Article XI), the Securities 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 the Company. The Subsidiary Guarantors further agree that their Guarantees herein constitute a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waive any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Obligations. The Guarantee of each Subsidiary Guarantor is, to the extent and in the manner set forth in Article X, subordinated and subject in right of payment to the prior payment in full of the principal of, of and premium, if any, and interest on all Guarantor Senior Indebtedness of such Subsidiary Guarantor and this Guarantee is made subject to such provisions of this Indenture. The obligations of the Notes, Subsidiary Guarantors hereunder shall not be subject to any applicable grace periodreduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense, setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Subsidiary Guarantors herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any 85 77 remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of the Subsidiary Guarantors or would otherwise operate as a discharge of the Subsidiary Guarantors as a matter of law or equity. The Subsidiary Guarantors further agree that their 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 any Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against the Subsidiary Guarantors by virtue hereof, upon the failure of the Company to pay any Obligation when and as the same shall become due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Obligation, the due Subsidiary Guarantors hereby promise to and punctual payment will, upon receipt of interest on written demand by the overdue principal of and premiumTrustee, if anyforthwith pay, andor cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Obligations, (ii) accrued and unpaid interest on such Obligations (but only to the extent permitted not prohibited by law, interest, ) and the due and punctual performance of (iii) all other obligations monetary Obligations of the Company to the Holders or the Trustee under this Indenture and the Notes, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same 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 pursuant to Section 6.02, redemption or otherwiseTrustee. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the The Subsidiary 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.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Guarantor further agrees agree that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article VI for the purposes of this Subsidiary Guaranteethe Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Section 6.02 hereofArticle VI, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose purposes of this Subsidiary GuaranteeSection. The Subsidiary Guarantors shall have also agree to pay any and all costs and expenses (including reasonable attorneys' fees) incurred by the right to seek contribution from Trustee or any non-paying Guarantor so long as the exercise of such right does not impair the Holder in enforcing any rights of the Holders under the Subsidiary Guaranteethis Section.
Appears in 1 contract
Sources: Indenture (Campfire Inc)
Subsidiary Guarantee. Subject Each Subsidiary that is a signatory hereto, if any, and each Subsidiary of the Company that in accordance with the terms of any Securities of a Series issued hereunder pursuant to any supplement indenture relating to such Securities is required to become party to this Article 10Indenture as a guarantor (each, the Guarantors a "Guarantor"), hereby jointly and severally unconditionally guarantee guarantees to each Holder Securityholder of a Note Security of a Series that is to be guaranteed and that has been authenticated and delivered by the Trustee and to irrespective of the Trustee and its successors and assignsvalidity or enforceability of this Indenture, the Securities or the obligations of the Company under this Indenture or the Securities, that: (ai) the due and punctual payment principal of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodSecurities will be paid in full when due, whether at Stated Maturitythe maturity or interest payment or mandatory redemption date, by acceleration, call for redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest, if any, and, to on the extent permitted by law, interest, Securities and the due and punctual performance of all other obligations of the Company to the Holders Securityholders or the Trustee under this Indenture and or the NotesSecurities will be promptly paid in full or performed, all in accordance with the terms hereof of this Indenture and thereofthe Securities; and (bii) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, that same shall they will 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall each Guarantor will be jointly and severally obligated to pay the same immediatelywhether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 6.2 hereof. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law. Each Guarantor hereby agrees that its obligations with regard to this Subsidiary Guarantee shall be joint and several and unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and validity or enforceability of the Securities 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 Securities or the obligations of the Company under this Indenture or the Securities, any action to enforce the same or any other circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor further, to the 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: (a) any right to require the Trustee, the Securityholders or the Company (each, a "Benefited Party") to proceed against the Company or any other Person or to proceed against or exhaust any security held by a Benefited Party at any time or to pursue any other remedy in any Benefited Party's power before proceeding against such Guarantor; (b) the defense of the statute of limitations in any action hereunder or in any action for the collection of any Indebtedness or the performance of any obligation hereby guaranteed; (c) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or the failure of a Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person; (d) 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’s obligations hereunder, (2) the benefit Company, any Benefited Party, any creditor of such Guarantor, the Company or on the part of any statute of limitations affecting such Guarantor’s liability hereunder other Person whomsoever in connection with any Indebtedness or the enforcement hereof, obligations hereby guaranteed; (3e) any rights defense based upon an election of remedies by a Benefited Party, including but not limited to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject theretoan election to proceed against such Guarantor for reimbursement; (f) notices, demands, presentations, protests, notices any defense based upon any statute or rule of protest, notices law which provides that the obligation of dishonor and notices of any action or inaction, including acceptance a surety must be neither larger in amount nor in other respects more burdensome than that of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereofprincipal; (g) to any defense arising because of a Benefited Party's election, in any proceeding instituted under Bankruptcy Law, of the extent permitted under applicable law, the benefits application of any “One Action” rule and 11 U.S.C. Section 1111(b)(2); or (h) any defenses defense based on any borrowing or benefits that may be derived from or afforded by law which limit the liability grant of or exonerate guarantors or sureties, or which may conflict with the terms of the Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the purposes of this Subsidiary 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 Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary 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 a security interest under the Subsidiary Guarantee.11 U.S.C.
Appears in 1 contract
Subsidiary Guarantee. Subject to this Article 1011, each of the Subsidiary Guarantors hereby hereby, jointly and severally, unconditionally guarantee 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 or the obligations of the Issuer hereunder or thereunder, that: (a) the due and punctual payment principal of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodNotes will be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest on the Notes, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations of the Company Issuer to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall 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 pursuant to Section 6.02, redemption or otherwise. 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.
(1) any principles or provisions of law. The Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and 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 Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such a Subsidiary Guarantor’s obligations hereunder. Subject to Section 6.06, (2) each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesIssuer, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawIssuer, the benefits of any “One Action” rule protest, notice and (h) any defenses or benefits all demands whatsoever and covenant 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuer, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuer or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this such Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this such Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this such Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying nonpaying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.
Appears in 1 contract
Sources: Indenture (GameStop Corp.)
Subsidiary Guarantee. Subject to this Article 10Section 10.6 hereof, each of the Subsidiary Guarantors hereby hereby, jointly and severally, unconditionally guarantee 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, the Collateral Documents and the Obligations of the Company hereunder and thereunder, that: (a) the due principal of and punctual payment of the principal of, premium, if any, premium and interest on the NotesNotes will be promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and principal, premium, if any, and, (to the extent permitted by law, interest) interest on the Notes, and the due and punctual performance of all other obligations payment Obligations of the Company to the Holders or the Trustee under this Indenture hereunder or thereunder will be promptly paid in full and the Notesperformed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same shall 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 pursuant to Section 6.02acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, reason the Subsidiary Guarantors shall 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.
(1) any principles . An Event of Default under this Indenture or provisions the Notes shall constitute an event of lawdefault under the Subsidiary Guarantees, statutory or otherwiseand shall entitle the Holders to accelerate, which are or might be in conflict with the terms Obligations of the Subsidiary Guarantees Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Subsidiary Guarantors hereby agree that their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such a Subsidiary Guarantor’s obligations hereunder. Each Subsidiary Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in its Subsidiary Guarantee the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Subsidiary Guarantors, or any custodianNote Custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by either the Company or any Subsidiary Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article VI hereof for the purposes of this its Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby thereby, and (yb) in the event of any declaration of acceleration of such obligations Obligations as provided in Section 6.02 Article VI hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Subsidiary Guarantor for the purpose of this its Subsidiary 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 Subsidiary GuaranteeGuarantees.
Appears in 1 contract
Sources: Indenture (Neenah Foundry Co)
Subsidiary Guarantee. Subject to the provisions of this Article 10X, the Guarantors hereby Guarantor unconditionally guarantee and irrevocably guarantees to each Holder of a Note authenticated Lender and delivered by the Trustee Agent and to the Trustee and its their respective successors and assigns, that: (ai) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to Advances and all L/C Reimbursement Obligations and any applicable grace periodpromissory note issued hereunder will be duly and punctually paid in full when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, the due and punctual payment of interest on the overdue principal of principal, and premium, if any, and, and (to the extent permitted by law, ) interest on any interest, if any, on the Advances, and the due all L/C Reimbursement Obligations and punctual performance of any promissory note issued hereunder and all other obligations of the Company to the Holders Lenders or the Trustee under this Indenture Agent hereunder (including fees and the Notesexpenses) will be promptly paid in full, all in accordance with the terms hereof and thereofhereof; and (bii) in case of any extension of time of payment or renewal of any Notes of the Advances or any of such other obligationsobligations including, that without limitation, as a result of any amendment and restatement of the Existing Credit Agreement or any other Loan Document, the same shall will be promptly paid in full when due or performed in accordance with the terms of the extension extension, renewal or renewalamendment and restatement, whether at Stated Maturitystated maturity, by acceleration pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed guaranteed, or failing performance of any performance so guaranteed other obligation of the Company to the Lenders or the Agent, for whatever reason, the Guarantors shall Guarantor will be jointly and severally obligated to pay pay, or to perform or to cause the performance of, the same immediately. Each An Event of Default under this Agreement shall constitute an event of default under this Guarantee, and shall entitle the Lenders to accelerate the obligations of the Guarantor under this Guarantee in the same manner and to the same extent as the obligations of the Company. The Guarantor hereby agrees that its obligations under this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of lawGuarantee shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and validity, regularity or enforceability of this Agreement, the absence of any action to enforce the same, any waiver or consent by any Lender or the Agent of this Agreement with respect to any thereof, the entry 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 such the Guarantor. The Guarantor hereby waives and relinquishes: (a) any right to require the Agent, the Lenders or the Company (each, a “Benefitted Person”) to proceed against the Company or any other Person or to proceed against or exhaust any security held by a Benefitted Person at any time or to pursue any other remedy in any secured party’s obligations hereunderpower before proceeding against the Guarantor; (b) any defense that may arise by reason of the incapacity, (2) the benefit lack of authority, death or disability of any statute of limitations affecting such Guarantor’s liability hereunder other Person or Persons or the enforcement hereoffailure of a Benefitted Person to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (3c) demand, protest and notice of any kind (except as expressly required by this Agreement), including but not limited to notice of the existence, creation or incurring of any new or additional Debt or obligation or of any action or non-action on the part of the Guarantor, the Company, any Benefitted Person, any creditor of the Guarantor, the Company or on the part of any other Person whomsoever in connection with any obligations the performance of which are guaranteed under this Guarantee; (d) any rights defense based upon an election of remedies by a Benefitted Person, including but not limited to set-offs, recoupments and counterclaims and an election to proceed against the Guarantor for reimbursement; (4e) promptness, diligence and any requirement defense based upon any statute or rule of law which provides that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject theretothe obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) noticesany defense arising because of a Benefitted Person’s election, demandsin any proceeding instituted under the Bankruptcy Code, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary Guarantees, notices application of Default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification Section 1111(b)(2) of the Obligations under the Subsidiary Guarantees or any agreement related thereto, Bankruptcy Code; and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted any defense based on any borrowing or grant of a security interest under applicable law, the benefits of any “One Action” rule and (h) 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 Section 364 of the Subsidiary GuaranteesBankruptcy Code. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each The Guarantor hereby covenants that its Subsidiary this Guarantee shall will not be discharged except by complete performance payment in full of all principal, premium, if any, and interest on the obligations contained in its Subsidiary Advances and all other costs provided for under this Agreement. This is a Guarantee of payment and this Indenturenot of collectability. If any Holder Lender or the Trustee Agent is required by any court or otherwise to return to either the CompanyCompany or the Guarantor, the Guarantors or any custodian, trustee, liquidator trustee or other similar official acting in relation to either the Company or the GuarantorsGuarantor, any amount paid by either the Company or the Guarantor to the Trustee Agent or such HolderLender, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each The Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders Lenders or the Agent in respect of any obligations guaranteed hereby under this Guarantee until payment in full of all obligations guaranteed hereby. Each The Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders Lenders and the TrusteeAgent, on the other hand, (x) the maturity of the obligations guaranteed hereby under this Guarantee may be accelerated as provided in Section 6.02 Article VI hereof for the purposes of this Subsidiary Guaranteehereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article VI hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Subsidiary Guarantee. (a) Subject to this Article 10Thirteen, each of the Guarantors hereby unconditionally guarantee Subsidiary Guarantors, jointly and severally, fully and unconditionally, guarantees, on a senior unsecured 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 or the obligations of the Company hereunder or thereunder, that: (ai) the due principal of, premium, if any, and punctual payment of interest on the Notes will be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest on the Notes, if any, if lawful (subject in all cases to any applicable grace period, whether at Stated Maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, to the extent permitted by law, interestperiod provided herein), and the due and punctual performance of all other monetary obligations of the Company to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall 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 pursuant to Section 6.02, redemption or otherwise. 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.
(1b) any principles or provisions of lawThe Subsidiary Guarantors agree that, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the maximum extent permitted under applicable law, their obligations hereunder shall be unconditional, irrespective of the benefits validity, regularity or enforceability of the Notes or this Indenture, the absence of any “One Action” rule and (h) action to enforce the same, any defenses waiver or benefits that may be derived from or afforded consent by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms 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 circumstance which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary GuaranteesGuarantor. Except Subject to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05Section 9.06, each Subsidiary Guarantor hereby covenants 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 its Subsidiary this Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. .
(c) 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 of the Company or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. .
(d) 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article Nine for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereofArticle Nine, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors Each Subsidiary Guarantor that makes a payment or distribution under its Guarantee shall have the right to seek contribution from any non-paying Subsidiary Guarantor, in a pro rata amount based on the net assets of each Subsidiary Guarantor determined in accordance with GAAP, so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.
(e) In respect to its obligations under its Guarantee, each Subsidiary Guarantor agrees to be bound to, and hereby covenants, with respect to itself, the covenant set forth in Section 7.06.
Appears in 1 contract
Sources: Indenture (Goodrich Petroleum Corp)
Subsidiary Guarantee. Subject to this Article 10Section 10.06 hereof, each of the Subsidiary Guarantors hereby hereby, jointly and severally, unconditionally guarantee guarantees to each Holder of a Senior Note authenticated and Indenture delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Senior Notes and the Obligations of the Company hereunder and thereunder, that: (a) the due and punctual payment of the principal of, premium, if any, and interest on the NotesSenior Notes will be promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and principal, premium, if any, and, (to the extent permitted by law, ) and interest on any interest, if any, on the Senior Notes, and the due and punctual performance of all other obligations payment Obligations of the Company to the Holders or the Trustee under this Indenture hereunder or thereunder will be promptly paid in full and the Notesperformed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Senior Notes or any of such other obligationsObligations, that the same shall 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 pursuant to Section 6.02acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, reason the Subsidiary Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Senior Notes shall constitute an event of payment default under the Subsidiary Guarantees, and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with shall entitle the terms Holders to accelerate the Obligations of the Subsidiary Guarantees Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Subsidiary Guarantors hereby agree that their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Senior Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such a Subsidiary Guarantor’s obligations hereunder. Each Subsidiary Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in its Subsidiary Guarantee the Senior Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Subsidiary Guarantors, or any custodianSenior Note Custodian, trusteeTrustee, liquidator or other similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by either the Company or any Subsidiary Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this its Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby thereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Section 6.02 Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Subsidiary Guarantor for the purpose of this its Subsidiary 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 Subsidiary Guarantee.Guarantees. Indenture
Appears in 1 contract
Sources: Indenture (Goodman Conveyor Co)
Subsidiary Guarantee. Subject to this Article 10Section 11.06 hereof, each of the Guarantors hereby hereby, jointly and severally, unconditionally guarantee guarantees to each Holder of a Note authenticated and delivered made available for delivery by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes and the Obligations of the Company hereunder and thereunder, that: (a) the due and punctual payment of the principal of, premium, if any, interest and interest Liquidated Damages, if any, on the NotesNotes will be promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and principal, premium, if any, and, (to the extent permitted by law, ) interest on any interest, if any, and Liquidated Damages, if any, on the due Notes, and punctual performance of all other obligations payment Obligations of the Company to the Holders or the Trustee under this Indenture hereunder or thereunder will be promptly paid in full and the Notesperformed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same shall 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 pursuant to Section 6.02acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, reason the Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Notes shall constitute an event of payment default under the Subsidiary Guarantees, and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with shall entitle the terms Holders to accelerate the Obligations of the Subsidiary Guarantees Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such a Guarantor’s obligations hereunder. Each Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in its Subsidiary Guarantee the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Guarantors, or any custodianNote Custodian, trusteeTrustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that so long as any Obligations on the Notes are outstanding it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article 6 for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Section 6.02 Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary 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 Subsidiary GuaranteeGuarantees.
Appears in 1 contract
Subsidiary Guarantee. Subject to the provisions of this Article 10XII, the Guarantors each Subsidiary Guarantor hereby jointly and severally unconditionally guarantee guarantees to each Holder of a Note Security 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 Securities or the obligations of the Company or any other Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder, that: (a) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodSecurities will be duly and punctually paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, (to the extent permitted by law, ) interest, if any, on the Securities and the due and punctual performance of all other obligations of the Company or the Subsidiary Guarantors to the Holders or the Trustee under hereunder or thereunder (including fees or expenses) and all other obligations with respect to the Securities and this Indenture and the Noteswill be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsSecurities, that the same shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed guaranteed, or failing performance of any performance so guaranteed other obligation of the Company to the Holders, for whatever reason, the Guarantors shall each Subsidiary Guarantor will be jointly and severally obligated to pay pay, or to perform or cause the performance of, the same immediately. Each Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Securities shall constitute an event of payment default under this Subsidiary Guarantee, and not a guarantee shall entitle the Holders of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with Securities to accelerate the terms obligations of the Subsidiary Guarantees Guarantors hereunder in the same manner and to the same extent as the obligations of the Company. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any holder of the Securities 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, whether or not a Subsidiary Guarantee is affixed to any particular Security, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor’s obligations hereunder, (2) a guarantor. Each of the Subsidiary Guarantors hereby waives the benefit of any statute diligence, presentment, demand of limitations affecting such Guarantor’s liability hereunder payment, filing of claims with a court in the event of insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Securities, this Indenture and this IndentureSubsidiary Guarantee. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyCompany or to any Subsidiary Guarantor, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorssuch Subsidiary Guarantor, any amount paid by either the Company or such Subsidiary Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders of Securities and the Trustee, on the other hand, (xa) subject to this Article XII, the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article VI hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (yb) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article VI hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. This Subsidiary 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 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 Securities are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities, 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 Securities 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. No stockholder, officer, director, employer or incorporator, past, present or future, or any Subsidiary Guarantor, as such, shall have any personal liability under this Subsidiary Guarantee by reason of his, her or its status as such stockholder, officer, director, employer or incorporator. 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 this Subsidiary Guarantee. Each Subsidiary Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is the intention of all such parties that the guarantee by each Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. To effectuate the foregoing intention, the Holders and each Subsidiary Guarantor hereby irrevocably agrees that the obligations of each Subsidiary Guarantor under the Subsidiary GuaranteeGuarantees shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of each Subsidiary Guarantor (including, but not limited to, the Guarantor Senior Indebtedness of each Subsidiary Guarantor) re- ▇▇▇▇ in the obligations of each Subsidiary Guarantor under the Subsidiary Guarantees not constituting such fraudulent transfer or conveyance.
Appears in 1 contract
Sources: Indenture (Navistar Financial Corp)
Subsidiary Guarantee. (a) Subject to this Article 1013, the Guarantors hereby Subsidiary Guarantor fully and unconditionally guarantee guarantees, on a senior unsecured 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 Third Supplemental Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (ai) the due principal of, premium, if any, and punctual payment of interest on the Notes will be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest on the Notes, if any, if lawful (subject in all cases to any applicable grace period, whether at Stated Maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, to the extent permitted by law, interestperiod provided herein), and the due and punctual performance of all other monetary obligations of the Company to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors Subsidiary Guarantor shall be jointly and severally obligated to pay the same immediately. Each The Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(1b) any principles or provisions of lawThe Subsidiary Guarantor agrees that, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the maximum extent permitted under applicable law, their obligations hereunder shall be unconditional, irrespective of the benefits validity, regularity or enforceability of the Notes or this Third Supplemental Indenture, the absence of any “One Action” rule and (h) action to enforce the same, any defenses waiver or benefits that may be derived from or afforded consent by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms 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 circumstance which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary GuaranteesGuarantor. Except The Subsidiary Guarantor 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 extent expressly provided hereinCompany, including Sections 8.02protest, 8.03 notice and 10.05, each Guarantor hereby covenants all demands whatsoever and covenant that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Third Supplemental Indenture. .
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Subsidiary Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either of the Company or the GuarantorsSubsidiary Guarantor, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each .
(d) The 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 obligations guaranteed hereby. Each The Subsidiary Guarantor further agrees that, as between the GuarantorsSubsidiary Guarantor, 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 Section 6.02 hereof Article 5 of the Base Indenture as amended by the Third Supplemental Indenture for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereofArticle 5 of the Base Indenture as amended by the Third Supplemental Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Subsidiary Guarantor for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Sources: Third Supplemental Indenture (Goodrich Petroleum Corp)
Subsidiary Guarantee. (a) Subject to this Article 1015, each of the Subsidiary Guarantors hereby hereby, as primary obligor and not merely as surety, jointly and severally, fully and unconditionally guarantee guarantees to each Holder of a Note the Guaranteed Notes 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 Guaranteed Notes or the obligations of the Issuer hereunder or thereunder, that:
(a1) the due principal of, premium, if any, and punctual payment of interest on, the Guaranteed 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, if any, and interest on the Guaranteed Notes, subject to any applicable grace period, whether at Stated Maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other monetary obligations of the Company Issuer to the Holders or the Trustee under this Indenture and hereunder whether for payment of principal of or interest on the Guaranteed Notes, expenses, indemnification or otherwise, or thereunder will be punctually paid in full, all in accordance with the terms hereof and thereof; and and
(b2) in case of any extension of time of payment or renewal of any Guaranteed Notes or any of such other obligations, that same shall will be promptly punctually 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, redemption or otherwise. Notwithstanding any other provision of this Indenture, the maximum aggregate liability of each Subsidiary Guarantor under this Note Guarantee shall not exceed fifty thousand United States dollars (U.S. $50,000) (the “Guaranteed Amount”). Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall 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. Each Subsidiary Guarantor, pursuant to its Note Guarantee, also hereby agrees to pay any and all reasonable out-of-pocket expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under its Note Guarantee.
(1b) any principles or provisions of The Subsidiary Guarantors hereby agree that (to the fullest extent permitted by law) their obligations hereunder are unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and validity, regularity or enforceability of the Guaranteed Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Guaranteed 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 such a Subsidiary Guarantor’s obligations hereunder. Each Subsidiary Guarantor hereby waives (to the fullest extent permitted by law) diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesIssuer, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants (gexcept as otherwise provided in Section 15.4 hereof) to that the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Subsidiary Note Guarantee shall will not be discharged except by complete performance of the monetary obligations contained in its Subsidiary Guarantee the Guaranteed Notes and this Indenture. .
(c) If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuer, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuer or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Note Guarantee, to the extent theretofore discharged, shall will be reinstated in full force and effect. .
(d) Each Subsidiary Guarantor agrees that it shall 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 Subsidiary Guarantor further agrees (to the fullest extent permitted by law) that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article 5 of this Indenture for the purposes of this Subsidiary the Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y2) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereofArticle 5 of this Indenture, such obligations (whether or not due and payable) shall will forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Note Guarantee. The Subsidiary Guarantors shall will have the right to seek contribution from the Issuer or any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Note Guarantee.
Appears in 1 contract
Subsidiary Guarantee. Subject to this Article 10Twelve, each of the Subsidiary Guarantors hereby jointly, severally and unconditionally guarantee guarantees, on a senior secured basis, to each Holder of a Note Notes 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 or the obligations of the Company under this Indenture or the Notes, that:
(a) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodNotes shall be promptly paid in full when due, whether at Stated Maturity, upon redemption or repurchase, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, to the extent permitted by law, interest, and the due and punctual performance of all other obligations of the Company to Holders of the Holders Notes or the Trustee under this Indenture and or the NotesNotes shall be promptly paid in full or promptly performed, as the case may be, all in accordance with the terms hereof of this Indenture and thereofthe Notes; and and
(b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, upon redemption or repurchase, by acceleration pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or failing performance of any performance other obligation so guaranteed for whatever reason, the Guarantors each Subsidiary Guarantor shall be jointly and severally obligated to pay pay, or to perform or cause the performance of, the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms . Each of the Subsidiary Guarantees and Guarantors hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of this Indenture or the Notes, the release of any other Subsidiary Guarantor, 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 such a Subsidiary Guarantor’s obligations hereunder. Each Subsidiary Guarantor hereby waives, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under by applicable law, diligence, presentment, demand of payment, filing of claims with a court in the benefits event of any “One Action” rule and (h) any defenses insolvency 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 bankruptcy of the Subsidiary Guarantees. Except Company, any right to require a proceeding first against the extent expressly provided hereinCompany, including Sections 8.02protest, 8.03 notice and 10.05, each Guarantor hereby covenants all demands whatsoever and covenant that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. Unless and until released with respect to any Subsidiary Guarantor in accordance with Section 12.04 of this Indenture, this Subsidiary 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 custodian, trustee, liquidator or other similar official be appointed for all or any part of the Company’s assets. If any Holder of the Notes or the Trustee is required by any court or governmental authority or is otherwise required to return to the Company, the Guarantors any Subsidiary Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorssuch Subsidiary Guarantor, any amount paid by either the Company or such Subsidiary Guarantor to the Trustee or such Holder, the Notes and this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees (to the fullest extent permitted by law) that, as between the Guarantorsit, on the one hand, and the Holders of the Notes and the Trustee, on the other handother, (xa) subject to this Article Twelve, the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article Five of this Indenture, for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (yb) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereofsuch Article Five, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Sources: Senior Secured Notes Agreement (Office Properties Income Trust)
Subsidiary Guarantee. Subject Each Subsidiary that is a signatory hereto and each Subsidiary of the Company that in accordance with the terms of any Securities of a Series issued hereunder pursuant to any supplement indenture relating to such Securities is required to become party to this Article 10Indenture as a guarantor (each, the Guarantors a "GUARANTOR"), hereby jointly and severally unconditionally guarantee guarantees to each Holder Securityholder of a Note Security of a Series that is to be guaranteed and that has been authenticated and delivered by the Trustee and to irrespective of the Trustee and its successors and assignsvalidity or enforceability of this Indenture, the Securities or the obligations of the Company under this Indenture or the Securities, that: (ai) the due and punctual payment principal of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodSecurities will be paid in full when due, whether at Stated Maturitythe maturity or interest payment or mandatory redemption date, by acceleration, call for redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest, if any, and, to on the extent permitted by law, interest, Securities and the due and punctual performance of all other obligations of the Company to the Holders Securityholders or the Trustee under this Indenture and or the NotesSecurities will be promptly paid in full or performed, all in accordance with the terms hereof of this Indenture and thereofthe Securities; and (bii) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, that same shall they will 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall each Guarantor will be jointly and severally obligated to pay the same immediatelywhether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 6.2 hereof. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the purposes of this Subsidiary 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 Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Subsidiary Guarantee. Subject to this Article 10For good and valuable consideration, the Guarantors receipt and sufficiency of which is hereby acknowledged, subject to Section 10.3, each Subsidiary Guarantor, jointly and severally, hereby unconditionally guarantee guarantees (such guarantees, together with further guarantees granted from time to time pursuant to Section 10.6, being the "Subsidiary Guarantee") to each Holder of a Note authenticated and delivered by the Trustee and to irrespective of the Trustee and its successors and assignsvalidity or enforceability of this Indenture, the Notes, the Registration Rights Agreement or the Obligations of the Issuers hereunder or thereunder: (ai) the due and punctual payment of the principal of, and premium, if any, of, and interest on on, the NotesNotes (including, subject without limitation, interest after the filing of a petition initiating any proceedings referred to any applicable grace periodin Section 6.1(j) or (k)), whether at Stated Maturitymaturity or on an interest payment date, by acceleration, call for redemption or otherwise, ; (ii) the due and punctual payment of interest on the overdue principal of and premium, if any, and, to the extent permitted by law, interestof, and interest on, the Notes, if lawful; (iii) the due and punctual payment and performance of all other obligations Obligations of the Company to Issuers under the Holders or the Trustee under Notes, this Indenture and the NotesRegistration Rights Agreement, all in accordance with the terms hereof set forth herein and thereofin the Notes and the Registration Rights Agreement; and (biv) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations hereunder or under the Notes or the Registration Rights Agreement, that same shall be promptly paid in full when the due and punctual payment or performed performance thereof in accordance with the terms of the extension or renewal, whether at Stated Maturitystated maturity, by acceleration pursuant to Section 6.02, redemption or otherwise. Failing payment when due by the Issuers 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 hereby agrees that this is a guarantee of payment and not a guarantee of collection.
(1i) any principles or provisions of lawits obligations hereunder shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and validity, regularity or enforceability of the Notes, this Indenture, the Registration Rights Agreement or the Obligations of the Issuers hereunder or thereunder, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, any amendment of this Indenture or the Notes, the recovery of any judgment against either of the Issuers or any of the Subsidiaries, any action to enforce the same, or any other circumstance that might otherwise constitute a legal or equitable discharge or defense of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims a guarantor and (4ii) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations contained Obligations of the Issuers under the Notes, this Indenture and the Registration Rights Agreement. Each Subsidiary Guarantor hereby agrees that it shall not be entitled to and irrevocably waives (i) diligence, presentment, demand of payment, filing of claim with a court in the event of insolvency or bankruptcy of either of the Issuers, any Subsidiary Guarantor, any other Subsidiary or any other obligor under the Notes, any right to require a proceeding first against the applicable Issuer, any Subsidiary Guarantor, any other Subsidiary or any other obligor under this Indenture or the Notes, protest, notice and all demands whatsoever, (ii) any right of subrogation, reimbursement, exoneration, contribution or indemnification in respect of any Obligations guaranteed hereby and (iii) any claim or other rights that it may now or hereafter acquire against the Issuers or any of the Subsidiaries that arise from the existence or performance of its Obligations under this Subsidiary Guarantee Guarantee, including, without limitation, any right to participate in any claim or remedy of a Holder against the Issuers or any of the Subsidiaries, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, and this Indentureincluding, without limitation, the right to take or receive from the Issuers or any of the Subsidiaries, directly or indirectly, in cash or other property, by setoff or in any other manner, payment on account of such claim or other rights. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers, any Subsidiary Guarantor, any other Subsidiary of the Guarantors Issuers or any custodianother obligor under this Indenture or the Notes, trustee, liquidator liquidator, or other similar official acting in relation to either the Company or the Guarantorsofficial, any amount paid by either the Issuers, any Subsidiary Guarantor, any other Subsidiary of the Issuers or any other obligor under this Indenture or the Notes to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof 6.2 for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect as to the Issuers of the obligations Obligations guaranteed hereby hereby, and (yii) in the event of any declaration of acceleration of such obligations those Obligations as provided in Section 6.02 hereof6.2, such obligations those Obligations (whether or not due and payable) shall will forthwith become due and payable by each of the Subsidiary Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Sources: Indenture (Majestic Star Casino LLC)
Subsidiary Guarantee. Subject to the provisions of this Article 10, the Guarantors each Subsidiary Guarantor hereby jointly and severally unconditionally guarantee guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assignsTrustee: (ai) the due and punctual payment of the principal ofof and premium, if any, and interest on each Note, when and as the same shall become due and payable, whether at maturity, by acceleration or otherwise, the due and punctual payment of interest (including Additional Interest) on the overdue principal of and premium, if any, and interest on the Notes, subject to any applicable grace period, whether at Stated Maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, to the extent permitted by law, interestlawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee (including without limitation amounts due the Trustee under this Indenture and the NotesSection 7.07), all in accordance with the terms hereof of such Note and thereof; this Indenture, and (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 shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due Each Subsidiary Guarantor hereby agrees that its obligations hereunder shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any amount so guaranteed 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 the Holder of such Note or the Trustee, 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 other circumstances which may otherwise constitute a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of a surety or such Subsidiary Guarantor (other than a defense of payment or performance). Each Subsidiary Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable by law, hereby waives diligence, presentment, demand for payment, filing of claims with a court in the benefits event of any “One Action” rule and (h) any defenses merger 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 bankruptcy of the Subsidiary Guarantees. Except Company, any right to require a proceeding first against the extent expressly provided hereinCompany, including Sections 8.02protest or notice with respect to any such Note or the Indebtedness evidenced 92 -83- thereby and all demands whatsoever, 8.03 and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged as to any such Note except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed herebythe principal thereof, premium, if any, and interest thereon and as provided in Section 9.01 hereof. Each Subsidiary Guarantor further agrees that, as between the Guarantorssuch Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (yii) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors each Subsidiary Guarantor for the purpose of this Subsidiary Guarantee. The Guarantors In addition, without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article 6 hereof, the Trustee shall have promptly make a demand for payment on 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 Notes under the Subsidiary GuaranteeGuarantee provided for in this Article 10 and not discharged. The Subsidiary Guarantee set forth in this Section 10.01 shall not be valid or become obligatory for any purpose with respect to a Note until the certificate of authentication on such Note shall have been signed by or on behalf of the Trustee by its manual signature.
Appears in 1 contract
Sources: Indenture (Cityscape Corp)
Subsidiary Guarantee. (a) Subject to the provisions of this Article 10Thirteen, the Guarantors each Restricted Subsidiary that hereafter becomes a Subsidiary Guarantor pursuant to Section 10.10, by its execution and delivery of its Subsidiary Guarantee in accordance with Sections 10.10 and 13.02, shall thereby agree as follows:
(i) Each such Subsidiary Guarantor hereby jointly and severally and fully and unconditionally guarantee guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns: , irrespective (ato the fullest extent permitted by law) of (x) the due validity and punctual payment enforceability of this Indenture, the Notes or the Obligations of the Company or any other Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder or (y) the absence 157
(1) the principal of, and premium, if any, and interest on on, the Notes, subject to any applicable grace periodNotes will be duly and punctually paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, (to the extent permitted by law, ) interest, if any, on the Notes and the due and punctual performance of all other obligations Obligations of the Company or the Subsidiary Guarantors to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder (including fees, expenses or other) will be promptly paid in full when due, all in accordance with the terms hereof and thereof; and (b) in 2)in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations with respect to the Notes, that the same shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed guaranteed, for whatever reason, the Guarantors shall each Subsidiary Guarantor will be jointly and severally obligated to pay pay, or to cause the payment of, the same immediately. Each Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Notes shall constitute an event of payment default under each Subsidiary Guarantee, and not a guarantee shall entitle the Holders of collectionNotes to accelerate the obligations of the Subsidiary Guarantors under their respective Subsidiary Guarantees in the same manner and to the same extent as the obligations of the Company.
(1ii) any principles or provisions Each of such Subsidiary Guarantors hereby agrees (to the fullest extent permitted by law) that its obligations hereunder shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms 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, any release of any other Subsidiary Guarantees and Guarantor, the recovery of any judgment against the Company, any action to enforce the 158 same, whether or not a Subsidiary Guarantee is affixed to any particular Note, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each of such Guarantor’s obligations hereunder, Subsidiary Guarantors hereby waives (2to the fullest extent permitted by law) the benefit of any statute diligence, presentment, demand of limitations affecting such Guarantor’s liability hereunder payment, filing of claims with a court in the event of insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that (except as otherwise provided in Section 13.07 or its Subsidiary Guarantee) its Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes, this Indenture and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each such Subsidiary Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) 1)subject to this Article Thirteen, the maturity of the obligations guaranteed hereby may be accelerated as and to the extent provided in Section 6.02 Article Five hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby and (y) in 2)in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Subsidiary Guarantor for the purpose of this its Subsidiary Guarantee.
(iii) Until terminated in accordance with Section 13.07 or its terms, the Subsidiary Guarantee of such Subsidiary Guarantor 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 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. The Guarantors 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.
(b) No stockholder, officer, director, employer, incorporator or controlling person, past, present or future, of any Subsidiary Guarantor, as such, shall have any personal liability under any Subsidiary Guarantee by reason of his, her or its status as such stockholder, officer, director, employer, incorporator or controlling person.
(c) Each Subsidiary Guarantor 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 its Subsidiary Guarantee.
(d) Notwithstanding any of the foregoing, each Subsidiary Guarantor's liability under its Subsidiary Guarantee shall be limited to the maximum amount that would not result in such Subsidiary Guarantee constituting a fraudulent conveyance or fraudulent transfer under applicable law.
Appears in 1 contract
Subsidiary Guarantee. (a) Subject to this Article 10, the Guarantors Guarantor hereby unconditionally guarantee 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 or the obligations of the Company hereunder or thereunder, that:
(a1) the due and punctual payment of the principal of, premiumpremium and Special Interest, if any, and interest on the Notes, subject to any applicable grace periodNotes will be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest on the Notes, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and and
(b2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall Guarantor will be jointly and severally obligated to pay the same immediately. Each The Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(1b) any principles or provisions of lawThe Guarantor hereby agrees that its obligations hereunder are unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and 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 circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor’s obligations hereundera guarantor. The Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. .
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the GuarantorsGuarantor, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall will be reinstated in full force and effect. Each .
(d) The Guarantor agrees that it shall 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 The Guarantor further agrees that, as between the GuarantorsGuarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y2) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article 6 hereof, such obligations (whether or not due and payable) shall will forthwith become due and payable by the Guarantors Guarantor for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Sources: Indenture (Fort James Corp)
Subsidiary Guarantee. Subject to this Article 1011, each of the Guarantors hereby hereby, jointly and severally, unconditionally guarantee 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 or the obligations of the Company hereunder or thereunder, that: (a) the due and punctual payment principal of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodNotes will be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest on the Notes, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall 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 pursuant to Section 6.02, redemption or otherwise. 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.
(1) any principles or provisions of law. The Guarantors hereby agree that their obligations hereunder shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and 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 circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor’s obligations hereundera guarantor. Each Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) any defenses or benefits all demands whatsoever and covenant 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Sources: Indenture (Clean Towel Service Inc)
Subsidiary Guarantee. Subject Each Subsidiary that is a signatory hereto and each Restricted Subsidiary of the Company which in accordance with Section 4.13 hereof is required to this Article 10guarantee the obligations of the Company under the Notes (each, the Guarantors a "Guarantor"), upon execution of a supplemental indenture, hereby jointly and severally unconditionally guarantee guarantees to each Holder of a Note authenticated and delivered by the Trustee and to irrespective of the Trustee and its successors and assignsvalidity or enforceability of this Indenture, the Notes or the obligations of the Company under this Indenture or the Notes, that: (ai) the due principal of and punctual payment of the principal of, premiuminterest on and Liquidated Damages, if any, and interest on with respect to the Notes, subject to any applicable grace periodNotes will be paid in full when due, whether at Stated Maturitythe maturity or interest payment or mandatory redemption date, by acceleration, call for redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest, if any, and, to on the extent permitted by law, interest, Notes and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and or the NotesNotes will be promptly paid in full or performed, all in accordance with the terms hereof of this Indenture and thereofthe Notes; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall they will 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall each Guarantor will be jointly and severally obligated to pay the same immediatelywhether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 6.02 hereof. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law. Each Guarantor hereby agrees that its obligations with regard to this Subsidiary Guarantee shall be joint and several and unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and validity or 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 circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor further, to the 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: (a) any right to require the Trustee, the Holders or the Company (each, a "Benefited Party") to proceed against the Company or any other Person or to proceed against or exhaust any security held by a Benefited Party at any time or to pursue any other remedy in any Benefited Party's power before proceeding against such Guarantor’s obligations hereunder, ; (2b) the benefit defense of any the statute of limitations affecting such Guarantor’s liability in any action hereunder or in any action for the enforcement hereof, collection of any Indebtedness or the performance of any obligation hereby guaranteed; (3c) any rights to set-offsdefense that may arise by reason of the incapacity, recoupments and counterclaims and (4) promptnesslack of authority, diligence and death or disability of any requirement that any other Person or the failure of a Benefited Party protectto file or enforce a claim against the estate (in administration, secure, perfect or insure any security interest or lien bankruptcy or any property subject theretoother proceeding) of any other Person; (fd) noticesdemand, demandsprotest and notice of any kind including but not limited to notice of the existence, presentations, protests, notices creation or incurring of protest, notices of dishonor and notices any new or additional Indebtedness or obligation or of any action or inactionnon-action on the part of such Guarantor, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodianBenefited Party, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the purposes of this Subsidiary 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 Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.any
Appears in 1 contract
Sources: Indenture (Iron Mountain Inc /De)
Subsidiary Guarantee. Subject to this Article 10, the Guarantors hereby unconditionally guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns: (a) Subject to the due provisions of this Article Ten, each Subsidiary Guarantor hereby jointly and punctual payment severally unconditionally guarantees, on an unsubordinated unsecured basis, irrespective of (i) the validity and enforceability of the Indenture, the Notes or the obligations of the Company or any other Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder or (ii) the 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 Subsidiary Guarantor, that:
(1) the principal of, premium, if any, interest and defaulted interest on with respect to the Notes, subject to any applicable grace periodNotes shall be duly and punctually paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, (to the extent permitted by law, interest, ) interest or defaulted interest with respect to the Notes and the due and punctual performance of all other obligations of the Company or any Subsidiary Guarantor to the Holders or the Trustee hereunder or thereunder and all other obligations under this the Indenture and the Notesshall be promptly paid in full or performed, all in accordance with the terms hereof of the Indenture and thereof; and , and
(b2) in case of any extension of time of payment or renewal of any the Notes or any of such other obligations, that the same 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, redemption or otherwise. Failing payment when due of any amount so guaranteed guaranteed, or failing performance of any performance so guaranteed other obligation of the Company to the Holders, for whatever reason, the Guarantors each Subsidiary Guarantor shall be jointly and severally obligated to pay pay, or to perform or cause the performance of, the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary Guarantees, notices An Event of Default under the Indenture or the Notes or any agreement or instrument related thereto, notices shall constitute an event of any renewal, extension or modification of the Obligations default under the Subsidiary Guarantees Guarantee and shall entitle the Holders or any agreement related thereto, the Trustee to accelerate the obligations of the Subsidiary Guarantors hereunder in the same manner and notices of any extension of credit to the Company and same extent as the obligations of the Company.
(b) Each Subsidiary Guarantor, by execution of its Subsidiary Guarantee, waives the benefit of diligence, presentment, demand for payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) any defenses or benefits all demands whatsoever and covenant 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its such Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its the Indenture and such Subsidiary Guarantee.
(c) The Subsidiary Guarantee is a guarantee of payment and this Indenturenot of collection. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyCompany or to any Subsidiary Guarantor, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorssuch Subsidiary Guarantor, any amount paid by either the Company or such Subsidiary Guarantor to the Trustee or such Holder, this the Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (xi) subject to this Article Ten, the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article Six for the purposes of this the Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (yii) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereofArticle Six, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Subsidiary Guarantor for the purpose of this its Subsidiary Guarantee.
(d) The Subsidiary 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 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. The Guarantors 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.
(e) No shareholder, partner, manager, member, director, officer, employee, agent or incorporator, past, present or future, of any Subsidiary Guarantor, as such, 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 personal liability under the Subsidiary GuaranteeGuarantee of such Subsidiary Guarantor by reason of his, her or its status as such partner, manager, member shareholder, director, officer, employee, agent or incorporator.
Appears in 1 contract
Sources: Indenture (Advance Auto Parts Inc)
Subsidiary Guarantee. Subject to this Article 10CRLP hereby acknowledges and agrees that it receives substantial benefits from the Operating Partnership and the Guarantor and that CRLP is providing its Subsidiary Guarantees for good and valuable consideration, the Guarantors including, without limitation, such substantial benefits. Accordingly, CRLP hereby fully and unconditionally guarantee guarantees to each Holder of a Note Notes that are authenticated by the Trustee and delivered by the Trustee and to or the Trustee and its successors and assignsOperating Partnership that: (ai) the due and punctual payment of the principal of, and premium, if any, and interest on on, the Notes, subject to any applicable grace periodNotes shall be duly and punctually paid in full when due, whether at Stated Maturity, by upon acceleration, upon redemption or otherwise; (ii) to the extent permitted by applicable law, the due and punctual payment of interest on the overdue principal of of, and overdue premium, if any, andand interest on, to the extent permitted by law, interest, Notes shall be duly and the due punctually paid in full when due; and punctual performance of (iii) all other obligations of the Company Operating Partnership to the Holders of Notes or (solely insofar as it relates to the Notes) to the Trustee under this the Indenture or under the Notes (including, without limitation, obligations to pay fees, expenses or other charges) shall be duly and punctually paid in full when due or duly and punctually performed, as the Notescase may be, all in accordance with the terms hereof of the Indenture and thereof; and (b) the Notes, and, in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same shall be promptly duly and punctually paid in full when due due, whether at Stated Maturity, by acceleration, call for redemption or performed otherwise, or duly and punctually performed, as the case may be, in accordance with the terms of the extension or renewal, whether at Stated Maturitysubject, however, in each case referred to above in this paragraph, to the limitations set forth in Section 1703 of the Indenture (such Section 1703 having been added to the Original Indenture by acceleration pursuant the Second Supplemental Indenture) and, in each case referred to Section 6.02above, redemption or otherwiseon the other terms and conditions set forth in Article Seventeen of the Indenture (such Article Seventeen having been added to the Original Indenture by the Second Supplemental Indenture). Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reasonWithout limitation to the foregoing, the Guarantors CRLP agrees that it shall be jointly bound by, and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment it shall comply with and not a guarantee of collection.
(1) any principles or provisions of lawperform, statutory or otherwise, which are or might be in conflict with the terms all of the Subsidiary Guarantees covenants, obligations and any legal or equitable discharge of such Guarantor’s obligations hereunderagreements to be complied with and performed by CRLP under the Indenture (including, (2without limitation, Article Seventeen thereof) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of under the Subsidiary Guarantees, notices of Default under the Notes or any agreement or instrument related theretoif any, notices of any renewal, extension or modification of the Obligations under the Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, endorsed on the one hand, and certificates evidencing the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the purposes of this Subsidiary 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 Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary 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 Subsidiary GuaranteeNotes.
Appears in 1 contract
Sources: Second Supplemental Indenture (Mid-America Apartments, L.P.)
Subsidiary Guarantee. Subject to this Article 10Section 11.06 of the Indenture, the Guarantors hereby each Guaranteeing Subsidiary hereby, jointly and severally, unconditionally guarantee 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 the Indenture, the Notes and the Obligations of the Company under the Notes or under the Indenture, that: (a) the due and punctual payment of the principal of, premium, if any, interest and interest Liquidated Damages, if any, on the NotesNotes will be promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and principal, premium, if any, and, (to the extent permitted by law, ) interest on any interest, if any, and Liquidated Damages, if any, on the due Notes and punctual performance of all other obligations payment Obligations of the Company to the Holders or the Trustee under this the Indenture or under the Notes will be promptly paid in full and the Notesperformed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationspayment Obligations, that the same shall 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 pursuant to Section 6.02acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall Guaranteeing Subsidiaries will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that The obligations of the Guaranteeing Subsidiaries to the Holders and to the Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly set forth in Article 11 and Article 12 of the Indenture, and reference is hereby made to such Indenture for the precise terms of this Subsidiary Guarantee. The terms of Articles 11 and 12 of the Indenture are incorporated herein by reference. This Subsidiary Guarantee is subject to release as and to the extent provided in Section 11.04 of the Indenture. The obligations of the Guaranteeing Subsidiaries to the Holders and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly subordinated to the extent set forth in Article 12 of the Indenture and reference is hereby made to such Indenture for the precise terms of such subordination. This is a guarantee continuing Guarantee and shall remain in full force and effect and shall be binding upon each Guaranteeing Subsidiary and its respective successors and assigns to the extent set forth in the Indenture until full and final payment of all of the Company's Obligations under the Notes and the Indenture and shall inure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges herein conferred upon that party shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions hereof. This is a Subsidiary Guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its This Subsidiary Guarantee shall not be discharged except valid or obligatory for any purpose until the certificate of authentication on the Note upon which this Subsidiary Guarantee is noted shall have been executed by complete performance the Trustee under the Indenture by the manual signature of one of its authorized officers. For purposes hereof, each Guaranteeing Subsidiaries' liability shall be limited to the lesser of (i) the aggregate amount of the obligations contained Obligations of the Company under the Notes and the Indenture and (ii) the amount, if any, which would not have (A) rendered such Guaranteeing Subsidiary "insolvent" (as such term is defined in the United States Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or (B) left such Guaranteeing Subsidiary with unreasonably small capital at the time its Subsidiary Guarantee and this Indenture. If of the Notes was entered into; PROVIDED that, it will be a presumption in any Holder lawsuit or other proceeding in which a Guaranteeing Subsidiary is a party that the Trustee is required by any court or otherwise to return amount guaranteed pursuant to the CompanySubsidiary Guarantee is the amount set forth in clause (i) above unless any creditor, or representative of creditors of such Guaranteeing Subsidiary, or debtor in possession or trustee in bankruptcy of such Guaranteeing Subsidiary, otherwise proves in such a lawsuit that the aggregate liability of the Guaranteeing Subsidiary is limited to the amount set forth in clause (ii) above. The Indenture provides that, in making any determination as to the solvency or sufficiency of capital of a Guaranteeing Subsidiary in accordance with the previous sentence, the Guarantors right of such Guaranteeing Subsidiary to contribution from other Guaranteeing Subsidiaries and any other rights such Guaranteeing Subsidiary may have, contractual or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore dischargedotherwise, shall be reinstated taken into account. Capitalized terms used herein have the same meanings given in full force the Indenture unless otherwise indicated. [GUARANTEEING SUBSIDIARY] By: ------------------------------------- Name: Title: EXHIBIT F FORM OF INDENTURE ASSUMPTION AGREEMENT INDENTURE ASSUMPTION AGREEMENT (this "Agreement"), dated as of November 26, 1996, between IVAC Holdings, Inc., a Delaware corporation (the "Company"), and effect. Each Guarantor agrees that it shall not be entitled to any right United States Trust Company 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 further agrees thatNew York, a New York banking corporation and trust company, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the purposes of this Subsidiary 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 Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary 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 trustee under the Subsidiary Guaranteeindenture referred to below (the "Trustee").
Appears in 1 contract
Sources: Indenture (Advanced Medical Inc)
Subsidiary Guarantee. (a) Subject to this Article 10, each of the Subsidiary Guarantors hereby shall, jointly and severally, irrevocably and unconditionally 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 and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the due and punctual payment of the principal of, premium, if any, and or interest on the Notes, subject to any applicable grace periodNotes shall be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest on the Notes, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations Obligations of the Company to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same 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 pursuant to Section 6.02, redemption or otherwise. 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.
(1b) any principles or provisions of lawThe Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and 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 circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor’s obligations hereundera guarantor. Each Subsidiary Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. .
(c) 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 Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. .
(d) 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying nonpaying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary GuaranteeGuarantees.
(e) Each Subsidiary 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, 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 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 or Subsidiary 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.
(f) In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(g) Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
(h) All provisions set forth herein with respect to the Subsidiary Guarantees are subject to the Agreed Security Principles.
Appears in 1 contract
Sources: Indenture (Maxar Technologies Inc.)
Subsidiary Guarantee. Subject to this Article 10Section 10.05 hereof, the Guarantors hereby hereby, jointly and severally, unconditionally 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 and enforceability of this Indenture, the Notes held thereby and the Obligations of the Company hereunder and thereunder, that: (a) the due principal of and punctual payment of the principal ofinterest, premium, if any, and interest Liquidated Damages, if any, on the NotesNotes will be promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, (to the extent permitted by law), interest on any interest, if any, premium, if any, and Liquidated Damages, if any, on the due Notes, and punctual performance of all other obligations payment Obligations of the Company to the Holders or the Trustee under this Indenture hereunder or thereunder will be promptly paid in full and the Notesperformed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same shall 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 pursuant to Section 6.02acceleration, redemption or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Notes shall constitute an event of payment default under the Subsidiary Guarantees, and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with shall entitle the terms Holders to accelerate the Obligations of the Subsidiary Guarantees Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such a Guarantor’s obligations hereunder. Each Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in its Subsidiary Guarantee the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Guarantors, or any custodianNote Custodian, trusteeTrustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either the Company or any Guarantor to the Trustee or such Holder, this the Subsidiary GuaranteeGuarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this its Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby thereby, and (yb) in the event of any declaration of acceleration of such obligations Obligations as provided in Section 6.02 Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose of this its Subsidiary 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 Subsidiary GuaranteeGuarantees.
Appears in 1 contract
Subsidiary Guarantee. (a) Subject to this Article 10, each of the Guarantors hereby hereby, jointly and severally, unconditionally guarantee 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 or the obligations of the Company hereunder or thereunder, that:
(a1) the due and punctual payment of the principal of, premiumpremium and Liquidated Damages, if any, and interest on the Notes, subject to any applicable grace periodNotes will be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest on the Notes, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and and
(b2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall 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.
(1b) any principles or provisions of lawSubject to this Article 10, statutory or otherwisethe Guarantors hereby agree that their obligations hereunder are unconditional, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and 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 circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor’s obligations hereundera guarantor. Each Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Notes and this Indenture. .
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall will be reinstated in full force and effect. .
(d) Each Guarantor agrees that it shall 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 further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y2) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article 6 hereof, such obligations (whether or not due and payable) shall will forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall 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.
Appears in 1 contract
Sources: Indenture (Hughes Supply Inc)
Subsidiary Guarantee. (a) Pursuant to Section 10.09 of the Original Indenture, Chicago Express, a Restricted Subsidiary of the Company, hereby provides a Subsidiary Guarantee of payment of the Notes as set forth below.
(a) Subject to the provisions of this Article 10Section 3, the Guarantors Chicago Express, as primary obligor and not merely as surety, hereby fully, unconditionally guarantee and irrevocably guarantees on a senior basis to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns: on behalf of the Holders (aa "Subsidiary Guarantee"):
(i) the due and punctual payment of the principal of, premium, if any, on and interest on each Note, when and as the Notessame shall become due and payable, subject to any applicable grace period, whether at Stated Maturitywhether, by acceleration, required repurchase (including by reason of Change of Control), call for redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest, if any, andon the Notes, to the extent permitted by lawlawful (in each case including interest accruing on or after filing of any petition in bankruptcy or reorganization relating to the Company or any Guarantor, interestwhether or not a claim for post filing interest is allowed in such proceeding), and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the NotesTrustee, all in accordance with the terms hereof of such Note and thereof; the Original Indenture and (bii) in the case of any extension of time of payment or renewal of any Notes Note or any of such other obligations, that the same shall 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 pursuant to Section 6.02acceleration, required repurchase (including by reason of Change of Control), call for redemption or otherwise. Failing payment when due Chicago Express hereby waives diligence, presentment, demand of any amount so guaranteed payment, filing of claims with a court in the event of merger 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.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms bankruptcy of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunderCompany, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to require a proceeding first against the Company, the Guarantors benefit of discussion, protest or notice with respect to any custodian, trustee, liquidator or other similar official acting in relation to either the Company such Note or the Guarantorsdebt evidenced thereby and all demands whatsoever, any amount paid by either to the Trustee or such Holder, and covenants that this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall Guarantee will not be entitled discharged as to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until such Note except by payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, principal thereof and the Holders interest thereon and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby 4.01 and Section 4.02 (y) in the event of any declaration of acceleration of such obligations as provided in subject to Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.4.06)
Appears in 1 contract
Sources: Second Supplemental Indenture (American Trans Air Execujet Inc)
Subsidiary Guarantee. Subject to this Article 10, the Guarantors hereby unconditionally guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns: (a) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace period, whether at Stated Maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, to the extent permitted by law, interest, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the Notes, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same 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 pursuant to Section 6.02, redemption or otherwise. 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.. Each Guarantor hereby agrees that its obligations with regard to its Subsidiary Guarantee shall be joint and several, unconditional, irrespective of the validity or 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 circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor further, to the 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: (a) 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 Guarantor, to (1) proceed against the Company, any other guarantor (including any other Guarantor) of the Obligations under the Subsidiary Guarantees or any other Person, (2) proceed against or exhaust any security held from the Company, any such other guarantor or any other Person, (3) proceed against or have resort to any balance of any deposit account or credit on the books of any Benefited Party in favor of the Company or any other Person, or (4) pursue any other remedy in the power of any Benefited Party whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of the Company including any defense based on or arising out of the lack of validity or the unenforceability of the Obligations under the Subsidiary Guarantees or any agreement or instrument relating thereto or by reason of the cessation of the liability of the Company from any cause other
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the purposes of this Subsidiary 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 Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Sources: Indenture (Centene Corp)
Subsidiary Guarantee. (a) Subject to this Article 10, each of the Subsidiary Guarantors hereby hereby, jointly and severally, unconditionally guarantee 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 or the obligations of the Company hereunder or thereunder, that: (a) the due principal, interest, premium and punctual payment of the principal of, premiumSpecial Interest, if any, and interest on the Notes, subject to any applicable grace periodNotes will be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest on the Notes, if any, and, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall 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 pursuant to Section 6.02, redemption or otherwise. 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.
(1b) any principles or provisions of lawThe Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and 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 circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor’s obligations hereundera guarantor. Each Subsidiary Guarantor hereby waives diligence, (2) presentment, demand of payment, filing of claims with a court in the benefit event of any statute of limitations affecting such Guarantor’s liability hereunder insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) any defenses or benefits all demands whatsoever and covenant 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.
(c) The obligations of the Subsidiary Guarantor under its Subsidiary Guarantee are independent of the obligations guaranteed by such Subsidiary Guarantor hereunder, and a separate action or actions may be brought and prosecuted by the Trustee on behalf of, or by, the Holders, subject to the terms and conditions set forth in this Indenture against a Subsidiary Guarantor to enforce the Subsidiary Guarantee, irrespective of whether any action is brought against the Company or whether the Company is joined in any such action or actions.
(d) The Subsidiary Guarantor hereby agrees that, in the event of a default in payment of principal (or premium and Special Interest, if any) or interest on a 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 Subsidiary Guarantee without first proceeding against the Company or any other Subsidiary Guarantor. The Subsidiary Guarantor agrees that 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 Subsidiary 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.
(e) 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 Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. .
(f) 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof Article 6 for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereofArticle 6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.
(g) Each Subsidiary 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, 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 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 or Subsidiary 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 Note 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. The form of Subsidiary Guarantee is attached hereto as Exhibit E.
(h) In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(i) The Subsidiary Guarantees will be general unsecured obligations of the Subsidiary Guarantors and will rank equally with all existing and future unsecured debt of the Subsidiary Guarantors that is not, by its terms, expressly subordinated in right of payment to the Subsidiary Guarantees. The Subsidiary Guarantees will be effectively subordinated to any existing and all future secured debt of the Subsidiary Guarantors to the extent of the assets securing such debt.
(j) Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
Appears in 1 contract
Sources: Indenture (Russel Metals Inc)
Subsidiary Guarantee. Subject to the provisions of this Article 10X, the Guarantors hereby Guarantor unconditionally guarantee and irrevocably guarantees to each Holder of a Note authenticated Lender and delivered by the Trustee Agent and to the Trustee and its their respective successors and assigns, that: (ai) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to Advances and any applicable grace periodpromissory note issued hereunder will be duly and punctually paid in full when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, the due and punctual payment of interest on the overdue principal of principal, and premium, if any, and, and (to the extent permitted by law, ) interest on any interest, if any, on the Advances, any promissory note issued hereunder and the due and punctual performance of all other obligations of the Company to the Holders Lenders or the Trustee under this Indenture Agent hereunder (including fees and the Notesexpenses) will be promptly paid in full, all in accordance with the terms hereof and thereofhereof; and (bii) in case of any extension of time of payment or renewal of any Notes of the Advances or any of such other obligations, that the same shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed guaranteed, or failing performance of any performance so guaranteed other obligation of the Company to the Lenders or the Agent, for whatever reason, the Guarantors shall Guarantor will be jointly and severally obligated to pay pay, or to perform or to cause the performance of, the same immediately. Each An Event of Default under this Agreement shall constitute an event of default under this Guarantee, and shall entitle the Lenders to accelerate the obligations of the Guarantor agrees that under this is a guarantee Guarantee in the same manner and to the same extent as the obligations of payment and not a guarantee of collectionthe Company.
(1a) any principles right to require the Agent, the Lenders or provisions the Company (each, a "Benefitted Person") to proceed against the Company or any other Person or to proceed against or exhaust any security held by a Benefitted Person at any time or to pursue any other remedy in any secured party's power before proceeding against the Guarantor; (b) any defense that may arise by reason of lawthe incapacity, statutory lack of authority, death or otherwisedisability of any other Person or Persons or the failure of a Benefitted Person to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) demand, protest and notice of any kind (except as expressly required by this Agreement), including but not limited to notice of the existence, creation or incurring of any new or additional Debt or obligation or of any action or non-action on the part of the Guarantor, the Company, any Benefitted Person, any creditor of the Guarantor, the Company or on the part of any other Person whomsoever in connection with any obligations the performance of which are guaranteed under this Guarantee; (d) any defense based upon an election of remedies by a Benefitted Person, including but not limited to an election to proceed against the Guarantor for reimbursement; (e) any defense based upon any statute or might rule of law which provides that the obligation of a surety must be neither larger in conflict with the terms amount nor in other respects more burdensome than that of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject theretoprincipal; (f) noticesany defense arising because of a Benefitted Person's election, demandsin any proceeding instituted under the Bankruptcy Code, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary Guarantees, notices application of Default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification Section 1111(b)(2) of the Obligations under the Subsidiary Guarantees or any agreement related thereto, Bankruptcy Code; and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted any defense based on any borrowing or grant of a security interest under applicable law, the benefits of any “One Action” rule and (h) 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 Section 364 of the Subsidiary GuaranteesBankruptcy Code. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each The Guarantor hereby covenants that its Subsidiary this Guarantee shall will not be discharged except by complete performance payment in full 5-Year Credit Agreement of all principal, premium, if any, and interest on the obligations contained in its Subsidiary Advances and all other costs provided for under this Agreement. This is a Guarantee of payment and this Indenturenot of collectibility. If any Holder Lender or the Trustee Agent is required by any court or otherwise to return to either the CompanyCompany or the Guarantor, the Guarantors or any custodian, trustee, liquidator trustee or other similar official acting in relation to either the Company or the GuarantorsGuarantor, any amount paid by either the Company or the Guarantor to the Trustee Agent or such HolderLender, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each The Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders Lenders or the Agent in respect of any obligations guaranteed hereby under this Guarantee until payment in full of all obligations guaranteed hereby. Each The Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders Lenders and the TrusteeAgent, on the other hand, (x) the maturity of the obligations guaranteed hereby under this Guarantee may be accelerated as provided in Section 6.02 Article VI hereof for the purposes of this Subsidiary Guaranteehereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article VI hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose of this Subsidiary 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 Subsidiary Guarantee.
Appears in 1 contract
Subsidiary Guarantee. Subject to this Article 10, the Guarantors (a) The Guarantor hereby unconditionally guarantee 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 or the Obligations of the Company hereunder or thereunder, that:
(ai) the due principal of and punctual payment of the principal of, premiuminterest and Liquidated Damages, if any, and interest on the Notes, subject to any applicable grace periodNotes shall be promptly paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption redemption, repurchase or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest and Liquidated Damages, if any, andon the Notes, to the extent permitted by law, interestif lawful, and the due and punctual performance of all other obligations Obligations of the Company to the Holders or the Trustee under this Indenture and the Noteshereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and and
(bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that same 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 6.02acceleration, redemption redemption, repurchase or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors Guarantor 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.
(1b) any principles or provisions of lawThe Guarantor hereby agrees that its Obligations hereunder shall be unconditional, statutory or otherwise, which are or might be in conflict with the terms irrespective of the Subsidiary Guarantees and 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 circumstance which might otherwise constitute a legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance defense of the Subsidiary GuaranteesGuarantor. The Guarantor hereby waives diligence, notices presentment, demand of Default under payment, filing of claims with a court in the Notes event of insolvency or any agreement or instrument related thereto, notices of any renewal, extension or modification bankruptcy of the Obligations under the Subsidiary Guarantees or any agreement related theretoCompany, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a proceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) any defenses or benefits all demands whatsoever and covenant 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations Obligations contained in its Subsidiary Guarantee the Notes and this Indenture. .
(c) If any Holder of Notes or the Trustee is required by any court or otherwise to return to the CompanyCompany or Guarantor, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the GuarantorsGuarantor, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each .
(d) The Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any obligations Obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each The Guarantor further agrees that, as between the GuarantorsGuarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x1) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby and (y2) in the event of any declaration of acceleration of such obligations Obligations as provided in Section 6.02 Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose of this Subsidiary Guarantee. The If any Restricted Subsidiary executes a Subsidiary Guarantee pursuant to Section 4.08, 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 Subsidiary GuaranteeGuarantees.
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Subsidiary Guarantee. Subject to the provisions of this Article 10X, the Guarantors hereby Guarantor unconditionally guarantee and irrevocably guarantees to each Holder of a Note authenticated Lender and delivered by the Trustee Agent and to the Trustee and its their respective successors and assigns, that: (ai) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to Advances and any applicable grace periodpromissory note issued hereunder will be duly and punctually paid in full when due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, the due and punctual payment of interest on the overdue principal of principal, and premium, if any, and, and (to the extent permitted by law, ) interest on any interest, if any, on the Advances, any promissory note issued hereunder and the due and punctual performance of all other obligations of the Company to the Holders Lenders or the Trustee under this Indenture Agent hereunder (including fees and the Notesexpenses) will be promptly paid in full, all in accordance with the terms hereof and thereofhereof; and (bii) in case of any extension of time of payment or renewal of any Notes of the Advances or any of such other obligations, that the same shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed guaranteed, or failing performance of any performance so guaranteed other obligation of the Company to the Lenders or the Agent, for whatever reason, the Guarantors shall Guarantor will be jointly and severally obligated to pay pay, or to perform or to cause the performance of, the same immediately. Each An Event of Default under this Agreement shall constitute an event of default under this Guarantee, and shall entitle the Lenders to accelerate the obligations of the Guarantor agrees that under this is a guarantee Guarantee in the same manner and to the same extent as the obligations of payment and not a guarantee of collectionthe Company.
(1a) any principles right to require the Agent, the Lenders or provisions 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 time or to pursue any other remedy in any secured party's power before proceeding against the Guarantor; (b) any defense that may arise by reason of lawthe incapacity, statutory lack of authority, death or otherwisedisability of any other Person or Persons or the failure of a Benefitted Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) demand, protest and notice of any kind (except as expressly required by this Agreement), including but not limited to notice of the existence, creation 55 60 or incurring of any new or additional Debt or obligation or of any action or non-action on the part of the Guarantor, the Company, any Benefitted Party, any creditor of the Guarantor, the Company or on the part of any other Person whomsoever in connection with any obligations the performance of which are guaranteed under this Guarantee; (d) any defense based upon an election of remedies by a Benefitted Party, including but not limited to an election to proceed against the Guarantor for reimbursement; (e) any defense based upon any statute or might rule of law which provides that the obligation of a surety must be neither larger in conflict with the terms amount nor in other respects more burdensome than that of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject theretoprincipal; (f) noticesany defense arising because of a Benefitted Party's election, demandsin any proceeding instituted under the Bankruptcy Code, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary Guarantees, notices application of Default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification Section 1111(b)(2) of the Obligations under the Subsidiary Guarantees or any agreement related thereto, Bankruptcy Code; and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted any defense based on any borrowing or grant of a security interest under applicable law, the benefits of any “One Action” rule and (h) 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 Section 364 of the Subsidiary GuaranteesBankruptcy Code. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each The Guarantor hereby covenants that its Subsidiary this Guarantee shall will not be discharged except by complete performance payment in full of all principal, premium, if any, and interest on the obligations contained in its Subsidiary Advances and all other costs provided for under this Agreement. This is a Guarantee of payment and this Indenturenot of collectibility. If any Holder Lender or the Trustee Agent is required by any court or otherwise to return to either the CompanyCompany or the Guarantor, the Guarantors or any custodian, trustee, liquidator trustee or other similar official acting in relation to either the Company or the GuarantorsGuarantor, any amount paid by either the Company or the Guarantor to the Trustee Agent or such HolderLender, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each The Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders Lenders or the Agent in respect of any obligations guaranteed hereby under this Guarantee until payment in full of all obligations guaranteed hereby. Each The Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders Lenders and the TrusteeAgent, on the other hand, (x) the maturity of the obligations guaranteed hereby under this Guarantee may be accelerated as provided in Section 6.02 Article VI hereof for the purposes of this Subsidiary Guaranteehereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article VI hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose of this Subsidiary 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 Subsidiary Guarantee.
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Subsidiary Guarantee. Subject to this Article 10The Subsidiary Guarantor hereby fully, the Guarantors hereby unconditionally guarantee and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally with each other Subsidiary Guarantor, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns: (a) the due full and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodwhen due, whether at Stated Maturitymaturity, by acceleration, by redemption or otherwise, of the due and punctual payment of interest on Obligations (such guaranteed Obligations, the overdue principal of and premium, if any, and, “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent permitted by law) that the Obligations may be modified in any manner, interestextended or renewed, in whole or in part, without notice or further assent from it, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee that it shall remain bound under this Indenture and the Notessupplemental indenture notwithstanding any modification, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same 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 pursuant to Section 6.02, redemption or otherwise. 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 immediatelyObligation. Each Subsidiary 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 Subsidiary Guarantee. Each Subsidiary Guarantor further agrees that this is its Subsidiary 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 Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (1) other than payment of the Obligations in full), including any principles claim of waiver, release, surrender, alteration or provisions compromise, and shall not be subject to any defense of lawsetoff, statutory counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise, which are or might be in conflict with . Without limiting the terms generality of the foregoing, the obligations of each Subsidiary Guarantees and any legal Guarantor herein shall not be discharged or equitable discharge of such Guarantor’s obligations hereunder, (2) impaired or otherwise affected by the benefit failure of any statute of limitations affecting such Guarantor’s liability hereunder Holder to assert any claim or the enforcement hereofdemand or to enforce any remedy under this Indenture, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary Guarantees, notices of Default under the Notes or any agreement or instrument related theretoother agreement, notices of by any renewal, extension waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the Obligations under performance of the Subsidiary Guarantees Obligations, or by any agreement related thereto, and notices of other act or thing or omission or delay to do any extension of credit to the Company and other act or thing which may or might in any right to consent manner or to any thereof; (g) to extent vary the extent permitted under applicable law, the benefits risk of any “One Action” rule and (h) any defenses such Subsidiary Guarantor or benefits that may be derived from would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the equity. Each Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants further agrees that its Subsidiary Guarantee herein shall not continue to be discharged except by complete performance effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any of the obligations contained in its Subsidiary Guarantee and this Indenture. If Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either reorganization of the Company or otherwise. In furtherance of the Guarantorsforegoing and not in limitation of any other right which any Holder has at law or in equity against each Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay any amount paid of the Obligations when and as the same shall become due, whether at maturity, by either acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee Trustee, forthwith pay, or such Holdercause to be paid, this Subsidiary Guaranteein cash, to the Holders an amount equal to the sum of: the unpaid amount of such Obligations then due and owing; and accrued and unpaid interest on such Obligations then due and owing (but only to the extent theretofore discharged, shall be reinstated in full force and effectnot prohibited by law). Each 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Guarantorssuch Subsidiary Guarantor, on the one hand, and the Holders and the TrusteeHolders, on the other hand, (x) : the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof this Indenture for the purposes of this its Subsidiary GuaranteeGuarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby hereby; and (y) in the event of any such declaration of acceleration of such obligations as provided in Section 6.02 hereofObligations, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Subsidiary Guarantor for the purpose purposes of this Subsidiary 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 its Subsidiary Guarantee.
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Subsidiary Guarantee. Subject to the provisions of this Article 10XI, the Guarantors each Subsidiary Guarantor hereby jointly and severally unconditionally guarantee guarantees to each Holder of a Note Security 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 Securities or the obligations of the Company or any other Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder, that: (a) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodSecurities will be duly and punctually paid in full when due, whether at Stated Maturitymaturity, by acceleration, redemption acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, (to the extent permitted by law, ) interest, if any, on the Securities and the due and punctual performance of all other obligations of the Company or the Subsidiary Guarantors to the Holders or the Trustee under hereunder or thereunder (including fees or expenses) and all other obligations with respect to the Securities and this Indenture and the Noteswill be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsSecurities, that the same shall 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed guaranteed, or failing performance of any performance so guaranteed other obligation of the Company to the Holders, for whatever reason, the Guarantors shall each Subsidiary Guarantor will be jointly and severally obligated to pay pay, or to perform or cause the performance of, the same immediately. Each Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Securities shall constitute an event of payment default under this Subsidiary Guarantee, and not a guarantee shall entitle the Holders of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with Securities to accelerate the terms obligations of the Subsidiary Guarantees Guarantors hereunder in the same manner and to the same extent as the obligations of the Company. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any holder of the Securities 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, whether or not a Subsidiary Guarantee is affixed to any particular Security, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor’s obligations hereunder, (2) a guarantor. Each of the Subsidiary Guarantors hereby waives the benefit of any statute diligence, presentment, demand of limitations affecting such Guarantor’s liability hereunder payment, filing of claims with a court in the event of insolvency or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance bankruptcy of the Subsidiary GuaranteesCompany, 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to require a pro- ceeding first against the extent permitted under applicable lawCompany, the benefits of any “One Action” rule protest, notice and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 all demands whatsoever and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee shall will not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee the Securities, this Indenture and this IndentureSubsidiary Guarantee. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyCompany or to any Subsidiary Guarantor, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorssuch Subsidiary Guarantor, any amount paid by either the Company or such Subsidiary Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders of Securities and the Trustee, on the other hand, (xa) subject to this Article XI, the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 Article VI hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby hereby, and (yb) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 Article VI hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. This Subsidiary 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 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 Securities are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities, 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 Securities 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. No stockholder, officer, director, employer or incorporator, past, present or future, or any Subsidiary Guarantor, as such, shall have any personal liability under this Subsidiary Guarantee by reason of his, her or its status as such stockholder, officer, director, employer or incorporator. 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 this Subsidiary Guarantee. Each Subsidiary Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is the intention of all such parties that the guarantee by each Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. To effectuate the foregoing intention, the Holders and each Subsidiary Guarantor hereby irrevocably agrees that the obligations of each Subsidiary Guarantor under the Subsidiary GuaranteeGuarantees shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of each Subsidiary Guarantor (including, but not limited to, the Guarantor Senior Indebtedness of each Subsidiary Guarantor) result in the obligations of each Subsidiary Guarantor under the Subsidiary Guarantees not constituting such fraudulent transfer or conveyance.
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Subsidiary Guarantee. Subject Each Subsidiary that is a signatory hereto and each Subsidiary of the Company that in accordance with the terms of any Securities of a Series issued hereunder pursuant to any supplement indenture relating to such Securities is required to become party to this Article 10Indenture as a guarantor (each, the Guarantors a "Guarantor"), hereby jointly and severally unconditionally guarantee guarantees to each Holder Securityholder of a Note Security of a Series that is to be guaranteed and that has been authenticated and delivered by the Trustee and to irrespective of the Trustee and its successors and assignsvalidity or enforceability of this Indenture, the Securities or the obligations of the Company under this Indenture or the Securities, that: (ai) the due and punctual payment principal of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace periodSecurities will be paid in full when due, whether at Stated Maturitythe maturity or interest payment or mandatory redemption date, by acceleration, call for redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premiuminterest, if any, and, to on the extent permitted by law, interest, Securities and the due and punctual performance of all other obligations of the Company to the Holders Securityholders or the Trustee under this Indenture and or the NotesSecurities will be promptly paid in full or performed, all in accordance with the terms hereof of this Indenture and thereofthe Securities; and (bii) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, that same shall they will 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 pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall each Guarantor will be jointly and severally obligated to pay the same immediatelywhether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 6.2 hereof. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary 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 Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) 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 Subsidiary Guarantees. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Each Guarantor hereby covenants agrees that its obligations with regard to this Subsidiary Guarantee shall not be discharged except by complete performance joint and several and unconditional, irrespective of the obligations contained in its Subsidiary Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each 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 obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the purposes of this Subsidiary 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 Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary 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 Subsidiary Guarantee.validity or
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