Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section.
Appears in 3 contracts
Sources: Fifth Supplemental Indenture (Lear Corp), Fourth Supplemental Indenture (Lear Corp), Third Supplemental Indenture (Lear Corp)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby jointly and severally irrevocably and unconditionally and irrevocably guarantees, jointly as a primary obligor and severallynot merely as a surety, to each Holder Noteholder and to the Trustee and its successors and assigns (ai) the full and punctual payment of principal of and interest on the Notes when due, whether at maturityStated Maturity, by acceleration, by redemption redemption, repurchase or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, Interest on, in respect of the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (bii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Subsidiary Guarantor, and that each such Subsidiary Guarantor and that such Subsidiary Guarantor will shall remain bound under this Article 10 17 notwithstanding any extension or renewal of any Guaranteed Obligation. .
(b) Each Subsidiary Guarantor waives presentation to, demand of, of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (ai) the failure of any Holder Noteholder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (bii) any extension or renewal of any thereof; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (div) the release of any security held by any Holder Noteholder or the Trustee for the Guaranteed Obligations or any of them; (ev) the failure of any Holder Noteholder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (fvi) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor.
(c) Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Subsidiary Guarantors, such that such Subsidiary Guarantor’s obligations would be less than the full amount claimed. Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have the assets of the Company first be used and depleted as payment of the Company’s or such Subsidiary Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Subsidiary Guarantor hereunder. Each Subsidiary Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Subsidiary Guarantor.
(d) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder Noteholder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) The Subsidiary Guarantee of each Subsidiary Guarantor is, to the extent and in the manner set forth in Article 18, subordinated and subject in right of payment to the prior payment in full of the principal of and premium, if any, and interest on all Senior Indebtedness of the relevant Subsidiary Guarantor and is made subject to such provisions of this Indenture.
(f) Except as expressly set forth in Sections 17.03 and 17.07, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Noteholder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, wilful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of any Subsidiary Guarantor as a matter of law or equity.
(g) Except as otherwise provided herein, each Subsidiary Guarantor agrees that its Subsidiary Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 Interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder Noteholder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(h) In furtherance of the foregoing and not in limitation of any other right which any Noteholder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or Interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Noteholders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid Interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (iii) all other monetary obligations of the Company to the Noteholders and the Trustee.
(i) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Noteholders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations and all obligations to which the Guaranteed Obligations are subordinated as provided in Article 18. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders Noteholders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 7 for the purposes of such Subsidiary Guarantor’s any Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 67, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Section 17.02.
(j) Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder Noteholder in enforcing any rights under this SectionSection 17.02.
(k) Upon request of the Trustee, each Subsidiary Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
Appears in 3 contracts
Sources: Indenture (Alliant Techsystems Inc), Indenture (Alliant Techsystems Inc), Indenture (Alliant Techsystems Inc)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteeshereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and to delivered by the Trustee and its successors and assigns that: (ai) the full and punctual payment of principal of of, premium, if any, and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, to the extent lawful, and all other monetary obligations Obligations of the Company to the Holders or the Trustee under this Indenture and the Notes will be promptly paid in full, all in accordance with the terms of this Indenture and the Notes; and (bii) in case of any extension of time of payment of any Notes or any of such other Obligations, that the Notes will be promptly paid in full and punctual performance within applicable grace periods when due in accordance with the terms of all other obligations of such extension or renewal, whether at Stated Maturity, by acceleration or otherwise. In the event that the Company fails to pay any amount guaranteed by the Subsidiary Guarantors for any reason whatsoever, the Subsidiary Guarantors will be jointly and severally obligated to pay such amount immediately. The Subsidiary Guarantors hereby further agree that their Obligations under this Indenture and the Notes (all shall be unconditional, regardless of the foregoing being hereinafter collectively called validity, regularity or enforceability of this Indenture or the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that Notes, the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal absence of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation action to enforce this Indenture or the Notes, any waiver or consent by any Holder with respect to any provisions of this Indenture or the Notes, any modification or amendment of, or supplement to, demand ofthis Indenture or the Notes, payment from and protest to the Company recovery of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy judgment against the Company or any other Person under this Indentureaction to enforce any such judgment, the Notes or any other agreement circumstance that might otherwise constitute a legal or otherwise; (b) any extension equitable discharge or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further agrees hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee herein constitutes a guarantee of payment, the Company’s Obligations under this Indenture and the Notes will not be discharged except by complete performance and compliance when due (and not a guarantee by the Company or another Guarantor of collection) and waives any right to require that any resort be had by such Obligations. If any Holder or the Trustee is required by any court or otherwise to return to the Company, any security held for payment Subsidiary Guarantor or a Custodian of the Guaranteed ObligationsCompany or a Subsidiary Guarantor any amount paid by the Company or any Subsidiary Guarantor to the Trustee or such Holder, the Subsidiary Guarantee of the Company’s Obligations under this Indenture and the Notes by each Subsidiary Guarantor shall, to the extent previously discharged as a result of any such payment, be immediately reinstated and be in full force and effect. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further hereby acknowledges and agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Company’s Obligations under this Indenture and the Notes may be accelerated as provided in Article 6 VI for the purposes of such the Subsidiary Guarantor’s Subsidiary Guarantee herein, Guarantees notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsacceleration, and (y) in the event of any declaration of acceleration of such Guaranteed the Company’s Obligations under this Indenture and the Notes as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of the Subsidiary Guarantees.
(b) Each Subsidiary Guarantor hereby waives all rights of subrogation, contribution, reimbursement and indemnity, and all other rights, that such Subsidiary Guarantor for would have against the purposes Company at any time as a result of this Section. any payment in respect of its Subsidiary Guarantee (whether contractual, under Section 509 of the Bankruptcy Code, or otherwise).
(c) Each Subsidiary Guarantor that makes or is required to make any payment in respect of its Subsidiary Guarantee shall be entitled to seek contribution from the other Subsidiary Guarantors to the extent permitted by applicable law; provided that each Subsidiary Guarantor agrees that any such claim for contribution that such Subsidiary Guarantor may have against any other Subsidiary Guarantor shall be subrogated to the prior payment in full in cash of all Obligations owed to Holders under or in respect of the Notes.
(d) Upon the sale or disposition (whether by merger, stock purchase or issuance of Capital Stock, asset sale or otherwise) of a Subsidiary Guarantor (or substantially all of its assets) to a Person which is not the Company or a Subsidiary of the Company, or upon the liquidation, dissolution or winding up of such Subsidiary Guarantor, which is otherwise in compliance with this Indenture, such Subsidiary Guarantor shall be deemed released from all its obligations under its Subsidiary Guarantee; provided that any such termination shall occur only to the extent that all obligations of such Subsidiary Guarantor under all of its guarantees of, and under all of its pledges of assets or other security interests which secure, other Indebtedness of the Company under any Senior Credit Facilities shall also terminate upon such release, sale or transfer.
(e) Each Subsidiary Guarantor may consolidate with or merge into or sell its assets to the Company or another Subsidiary Guarantor without limitation. A Subsidiary Guarantor may consolidate with or merge into or sell its assets to a corporation other than the Company or another Subsidiary Guarantor (whether or not affiliated with such Subsidiary Guarantor, but subject to the provisions described in Section 11.01(d)), provided that (a) if the Surviving Person is not the Subsidiary Guarantor, the Surviving Person agrees to pay any assume such Subsidiary Guarantor’s obligations under its Subsidiary Guarantee and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights its obligations under this SectionIndenture and (b) such transaction does not (i) violate any covenants set forth in this Indenture or (ii) result in a Default or Event of Default under this Indenture immediately thereafter that is continuing.
(f) The Subsidiary Guarantee of each Subsidiary Guarantor will be automatically and unconditionally released in connection with a Legal Defeasance or Covenant Defeasance of this Indenture or upon satisfaction and discharge of this Indenture.
Appears in 3 contracts
Sources: Indenture (Gray Television Inc), Indenture (Gray Television Inc), Indenture (Gray Television Inc)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesSubject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees, on a senior unsecured basis, to each Holder authenticated and delivered by the Trustee and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Notes when dueassigns, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations irrespective of the Company under this Indenture validity and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions enforceability of this Indenture, the Notes held thereby and the Obligations of the Issuers hereunder and thereunder, that: (a) the principal of and premium, if any, and interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise, and interest on the overdue principal of and premium, if any, (to the extent permitted by law) interest on the Notes, and all other payment Obligations of the Issuers to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise. Failing payment when so due of any amount so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Issuers. 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 an Issuer, any action to enforce the same or any other agreement; circumstance (dother than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor further, to the release extent permitted by law, hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of an Issuer, any security held right to require a proceeding first against an Issuer, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee will not be discharged except by complete performance of the Obligations contained in the Notes and this Indenture. If any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had is required by any Holder court or otherwise to return to an Issuer, the Trustee to any security held for payment of the Guaranteed Obligations. 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 paymentGuarantors, or any part thereofCustodian, Trustee or other similar official acting in relation to any of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder the Issuers or the Guarantors, any amount paid by an Issuer or any Guarantor to the Trustee upon or such Holder, the bankruptcy or reorganization of Subsidiary Guarantees, to the Company or otherwiseextent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to, and hereby waives, any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby. Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of such its Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed thereby, and (yb) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 66 hereof, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary the Guarantor for the purposes purpose of this Sectionits Subsidiary Guarantee. Each 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 Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantees.
Appears in 3 contracts
Sources: Indenture (Calumet Specialty Products Partners, L.P.), Indenture (Calumet Specialty Products Partners, L.P.), Indenture (Calumet Specialty Products Partners, L.P.)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby jointly and severally unconditionally and irrevocably guarantees, jointly and severally, guarantees on a senior basis to each Holder and to the Trustee and its successors and assigns (ai) the full and punctual payment of principal of principal, premium, if any, interest, and interest on Additional Interest, if any, with respect to, the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company Issuers under this the Indenture (including obligations to the Trustee) and the Notes and (bii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuers under this the Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Note Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Note Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Subsidiary Guarantor, and that each such Subsidiary Guarantor and that such Subsidiary Guarantor will shall remain bound under this Article 10 IX notwithstanding any extension or renewal of any Guaranteed Note Obligation. .
(b) Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company Issuers of any of the Guaranteed Note Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default Default or Event of Default under the Notes or the Guaranteed Note Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company Issuers or any other Person under this the Indenture, the Notes or any other agreement or otherwise; (bii) any extension or renewal of any thereof; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this the Indenture, the Notes or any other agreement; (div) the release of any security held by any Holder or the Trustee for the Guaranteed Note Obligations or any of them; (ev) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Note Obligations; or (fvi) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. , except as provided in Section 9.02 hereof.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Note Obligations.
(d) The obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason other than indefeasible payment in full of the Note Obligations, 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 Note Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under the Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of any Subsidiary Guarantor as a matter of law or equity.
(e) 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 principal, premium, if any, interest or interest on Additional Interest, if any, with respect to any Guaranteed Note Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of either of the Company Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay the principal, premium, if any, interest or Additional Interest, if any, with respect to any Note Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Note Obligation, each Subsidiary Guarantor hereby promises to and shall forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Note Obligations, (ii) accrued and unpaid interest on such Note Obligations (but only to the extent not prohibited by law) and (iii) all other monetary Note Obligations of the Issuers to the Holders and the Trustee.
(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 Note Obligations guaranteed hereby until payment in full of all Note Obligations. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Note Obligations guaranteed hereby may be accelerated as provided in Article 6 VII hereof for the purposes of such any Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsNote Obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6VII hereof, such Guaranteed Note Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Section 9.01.
(h) Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder in enforcing any rights under this SectionSection 9.01.
Appears in 3 contracts
Sources: Thirteenth Supplemental Indenture (Plains All American Pipeline Lp), Supplemental Indenture (Plains All American Pipeline Lp), Second Supplemental Indenture (Plains All American Pipeline Lp)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees(A) Subject to this Article 12, each of the Guarantors hereby, jointly and severally, unconditionally guarantees, on a senior secured basis, as primary obligors and not as a surety, to each Holder (and its successors and assigns) of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of this Indenture, the Notes, the Indenture Documents and/or the Obligations of the Company:
(ai) that the full and punctual payment of principal of and of, interest on on, or any other amount payable to the Holders, under the Notes shall be promptly paid in full or performed when due, whether at maturity, by acceleration, by redemption or otherwise, and all interest on the overdue principal of and interest (including but not limited to any interest, fees, costs or charges that would accrue but for the provisions of applicable Bankruptcy Law after any insolvency proceeding), on the Notes, if any, if lawful; and
(ii) that in the case of any extension of time of payment or renewal of any Notes or the payment of any other monetary amount payable to the Holders, the same shall be promptly paid in full when due (such obligations of the Company under this Indenture and the Notes in clauses (i) and (bii) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter herein collectively called the “Guaranteed Obligations”)
(B) Failing payment when so due of any amount so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. Each An Event of Default under this Indenture or the Notes shall constitute an event of default under the Subsidiary Guarantor further agrees Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the obligations of the Company.
(C) The Guarantors hereby agree that their obligations hereunder shall be absolute, irrevocable and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of the Notes, this Indenture, the Indenture Documents or any other agreement or instrument referred to herein or therein, 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 a surety of Guarantor, all to the fullest extent permitted by law. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Guarantors hereunder which remain absolute, irrevocable and unconditional under any and all circumstances as described above, to the fullest extent permitted by law:
(i) at any time or from time to time, without notice to the Guarantors, the time for any performance of or compliance with any of the Guaranteed Obligations may shall be extended extended, or renewedsuch performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this Indenture or the Notes, in whole if any, or in part, without notice any other agreement or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension instrument referred to herein or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to therein shall be done or omitted;
(iii) the Company maturity of any of the Guaranteed Obligations and also waives notice shall be accelerated, or any of protest for nonpayment. Each Subsidiary Guarantor waives notice of the Guaranteed Obligations shall be amended in any default respect, or any right under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes Notes, or any other agreement or otherwise; (b) instrument referred to herein or therein shall be amended or waived in any extension respect or renewal of any thereof; (c) any rescission, waiver, amendment or modification other guarantee of any of the terms Guaranteed Obligations or provisions any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;
(iv) any Lien or security interest granted to, or in favor of this Indentureany Holder, the Notes Collateral Trustee or the Trustee as security for any other agreementof the Guaranteed Obligations shall fail to be perfected; or
(dv) the release of any security held other Guarantor.
(D) Each Guarantor further, to the fullest extent permitted by any Holder law, hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise Company, any right or remedy to require a proceeding first against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06Company, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee herein constitutes a guarantee of payment, will not be discharged except by complete performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Each Subsidiary Guarantor further agrees that its obligations contained in the Notes and this Indenture.
(E) Until terminated in accordance with Section 12.05, each Subsidiary Guarantee herein shall shall, to the fullest extent permitted by law, 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 or other similar officer 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 paymentpayment of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment had not been made. In the event that any payment or any part thereof, of principal of is rescinded, reduced, restored or interest on any Guaranteed Obligation is rescinded 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 must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. returned.
(F) Each Subsidiary Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 Section 7.02 hereof (and shall be deemed to have become automatically due and payable in the circumstances in said Section 7.02) for the purposes of such its Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed thereby, and (yb) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6Section 7.02 hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary the Guarantor for the purposes purpose of this Sectionits 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 Guarantees.
(G) Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder the Collateral Trustee in enforcing any rights under the Indenture Documents.
(H) Each Guarantor shall be subrogated to all rights of Holders against the Company in respect of any amounts paid by such Guarantor pursuant to the provisions of this SectionSection 12.01; provided that, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Company under this Indenture, the Notes or the Indenture Documents shall have been paid in full in cash.
(I) Each payment to be made by a Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
Appears in 3 contracts
Sources: Indenture (Maxeon Solar Technologies, Ltd.), Indenture (Maxeon Solar Technologies, Ltd.), Indenture (Maxeon Rooster HoldCo, Ltd.)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees(a) Subject to this Article Nine, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of this Indenture or the Notes held thereby and the Obligations of the Issuers under the Notes or this Indenture, that: (a) the full and punctual payment of principal of and interest and premium, if any, on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturityStated Maturity, by acceleration, by upon repurchase or redemption or otherwise, and interest on the overdue principal of and premium and (to the extent permitted by law) interest on the Notes, and all other monetary obligations payment Obligations of the Company Issuers to the Holders or the Trustee under the Notes or this Indenture will be promptly paid in full and performed, all in accordance with the Notes terms hereof and thereof; and (b) the full and punctual performance within applicable grace periods in case of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension of time of payment or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of Notes or any of such other Obligations, the Guaranteed Obligations same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise. The Guarantors will be jointly and also waives notice severally obligated to pay any amount so guaranteed which was not otherwise paid when due, regardless of protest the reason for nonpayment. Each Subsidiary Guarantor waives notice such failure to pay by the Person then obligated to pay.
(b) The Guarantors hereby agree that, except as expressly provided in this Article Nine, their obligations hereunder shall be unconditional, irrespective of any default under the validity, regularity or enforceability of the Notes or this Indenture, the Guaranteed Obligationsabsence 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 an Issuer, 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 a Guarantor. The obligations Each Guarantor further, to the extent permitted by law, hereby waives diligence, presentment, demand of each payment, filing of claims with a court in the event of insolvency or bankruptcy of an Issuer, any right to require a proceeding first against an Issuer, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantor hereunder shall Guarantee will not be affected by: discharged except by complete performance of the Obligations contained in the Notes and this Indenture.
(ac) the failure of If any Holder or the Trustee is required by any court or otherwise to assert any claim or demand or return to enforce any right or remedy against an Issuer, the Company Guarantors, or any Custodian, Trustee or other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of similar official acting in relation to any of the terms Issuers or provisions of this Indenturethe Guarantors, any amount paid by an Issuer or any Guarantor to the Trustee or such Holder, the Notes or Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to, and hereby waives, any other agreement; right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby.
(d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 Six for the purposes of such its Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed thereby, and (yb) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6Six, such Guaranteed Obligations (whether or not then due and payable) shall forthwith become due and payable by such Subsidiary the Guarantor for the purposes purpose of this Sectionits Subsidiary Guarantee. Each 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 Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantees.
Appears in 3 contracts
Sources: Indenture (USA Compression Partners, LP), Indenture (USA Compression Partners, LP), Indenture (USA Compression Partners, LP)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesGuarantor, jointly and severally, as primary obligor and not merely as surety, hereby irrevocably, fully and unconditionally Guarantees on a senior basis to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Notes Securities when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Notes Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes Securities (all the foregoing being obligations hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor Guarantor, and that such Subsidiary Guarantor will shall remain bound under this Article 10 11 notwithstanding any extension or renewal of any such Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (f) except as set forth provided in Section 10.0611.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Sections 8.01(b), 11.02 and 11.06, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the 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 Guaranteed 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 such 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (iii) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations Guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder in enforcing any rights under this Section.
Appears in 3 contracts
Sources: Indenture (CONSOL Energy Inc), Indenture (CONSOL Energy Inc), Indenture (CONSOL Energy Inc)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby unconditionally required to execute and irrevocably guaranteesdeliver a supplemental indenture or Guarantee Agreement, as applicable, pursuant to Section 4.11 of this Indenture shall, upon execution and delivery of its supplemental indenture or Guarantee Agreement, as applicable, jointly and severallyseverally irrevocably and unconditionally guarantee, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Issuer under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of and interest on the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Subsidiary Guarantor Guarantor, and that each such Subsidiary Guarantor will shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary .
(b) To the fullest extent permitted by applicable law, each Guarantor waives presentation to, demand of, of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; , (bii) any extension or renewal of any thereof; thereof and (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (eiii) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or .
(fc) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. [Reserved].
(d) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Section 8.01(b), 10.02 and 10.06 and to the fullest extent permitted by applicable law, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the payment of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Each Guarantor agrees that its Subsidiary Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (iii) all other monetary obligations of the Issuer to the Holder and the Trustee.
(h) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 VI for the purposes of such Subsidiary Guarantor’s any Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Section 10.01.
(i) Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionSection 10.01.
(j) Upon request of the Trustee, each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
Appears in 3 contracts
Sources: Indenture (Western Digital Corp), Indenture, Indenture
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees(a) Subject to this Article Nine, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of this Indenture or the Notes held thereby and the Obligations of the Issuers under the Notes or this Indenture, that: (a) the full and punctual payment of principal of and interest and premium, if any, on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturityStated Maturity, by acceleration, by upon repurchase or redemption or otherwise, and interest on the overdue principal of and premium and (to the extent permitted by law) interest on the Notes, and all other monetary obligations payment Obligations of the Company Issuers to the Holders or the Trustee under the Notes or this Indenture will be promptly paid in full and performed, all in accordance with the Notes terms hereof and thereof; and (b) the full and punctual performance within applicable grace periods in case of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise. Each Subsidiary Guarantor waives presentation to, demand of, Failing payment from and protest to the Company when so due of any amount so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately.
(b) The Guarantors hereby agree that, except as expressly provided in this Article Nine, their obligations hereunder shall be unconditional, irrespective of the Guaranteed Obligations and also waives notice validity, regularity or enforceability of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes 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 an Issuer, any action to enforce the same or any other agreement circumstance (other than complete performance) which might otherwise constitute a legal or otherwise; (b) any extension equitable discharge or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary a Guarantor. Each Subsidiary Guarantor further agrees further, to the extent permitted by law, hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of an Issuer, any right to require a proceeding first against an Issuer, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee herein constitutes a guarantee of payment, will not be discharged except by complete performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (y) contained in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due Notes and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionIndenture.
Appears in 2 contracts
Sources: Indenture (Enviva Partners, LP), Indenture (Enviva Partners, LP)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteeshereby, jointly and severally, unconditionally guarantees, on a senior unsecured basis, to each Holder of a Note authenticated and to delivered by the Trustee and its successors and assigns that: (ai) the full and punctual payment of principal of of, premium, if any, and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, to the extent lawful, and all other monetary obligations Obligations of the Company to the Holders or the Trustee under this Indenture and the Notes will be promptly paid in full, all in accordance with the terms of this Indenture and the Notes; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that the Notes will be promptly paid in full and punctual performance within applicable grace periods when due in accordance with the terms of all other obligations of such extension or renewal, whether at stated maturity, by acceleration or otherwise. In the event that the Company fails to pay any amount guaranteed by the Subsidiary Guarantors for any reason whatsoever, the Subsidiary Guarantors will be jointly and severally 76 -69- obligated to pay such amount immediately. The Subsidiary Guarantors hereby further agree that their Obligations under this Indenture and the Notes (all shall be unconditional and absolute, regardless of the foregoing being hereinafter collectively called validity, legality or enforceability of this Indenture or the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that Notes, the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal absence of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation action to enforce this Indenture or the Notes, any waiver or consent by any Holder with respect to any provisions of this Indenture or the Notes, any modification or amendment of, or supplement to, demand ofthis Indenture or the Notes, payment from and protest to the Company recovery of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy judgment against the Company or any other Person under this Indentureaction to enforce any such judgment, the Notes or any other agreement circumstance that might otherwise constitute a legal or otherwise; (b) any extension equitable discharge or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further agrees hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee herein constitutes a guarantee of payment, the Company's Obligations under this Indenture and the Notes will not be discharged except by complete performance and compliance when due (and not a guarantee by the Company or another Guarantor of collection) and waives any right to require that any resort be had by such Obligations. If any Holder or the Trustee is required by any court or otherwise to return to the Company, any security held for payment Subsidiary Guarantor or a Custodian of the Guaranteed ObligationsCompany or a Subsidiary Guarantor any amount paid by the Company or any Subsidiary Guarantor to the Trustee or such Holder, the Subsidiary Guarantee of the Company's Obligations under this Indenture and the Notes by each Subsidiary Guarantor shall, to the extent previously discharged as a result of any such payment, be immediately reinstated and be in full force and effect. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further hereby acknowledges and agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Company's Obligations under this Indenture and the Notes may be accelerated as provided in Article 6 VI for the purposes of such the Subsidiary Guarantor’s Subsidiary Guarantee herein, Guarantees notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsacceleration, and (y) in the event of any declaration of acceleration of such Guaranteed the Company's Obligations under this Indenture and the Notes as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of the Subsidiary Guarantees.
(b) Each Subsidiary Guarantor hereby waives all rights of subrogation, contribution, reimbursement and indemnity, and all other rights, that such Subsidiary Guarantor for would have against the purposes Company at any time as a result of any payment in respect of its Subsidiary Guarantee (whether contractual, under section 509 of the Bankruptcy Code, or otherwise).
(d) Upon the sale or disposition (whether by merger, stock purchase, asset sale or otherwise) of a Subsidiary Guarantor (or substantially all of its assets) to an entity which is not a Subsidiary of the Company, which is otherwise in compliance with this Section. Indenture, such Subsidiary Guarantor shall be deemed released from all its obligations under its Subsidiary Guarantee; provided that any such termination shall occur only to the extent that all obligations of such Subsidiary Guarantor under all of its guarantees of, and under all of its pledges of assets or other security interests which secure, other Indebtedness of the Company shall also terminate upon such release, sale or transfer.
(e) Each Subsidiary Guarantor also may consolidate with or merge into or sell its assets to the Company or another Subsidiary Guarantor without limitation. A Subsidiary Guarantor may consolidate with or merge into or sell its assets to a corporation other than the Company or another Subsidiary Guarantor (whether or not affiliated with such Subsidiary Guarantor, but subject to the provisions described in Section 10.01(d)), provided that (a) if the Surviving Person is not the Subsidiary Guarantor, the Surviving Person agrees to pay any assume such Subsidiary Guarantor's obligations under its Subsidiary Guarantee and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights its obligations under this SectionIndenture and (b) such transaction does not (i) violate any covenants set forth in this Indenture or (ii) result in a Default or Event of Default under this Indenture immediately thereafter that is continuing.
Appears in 2 contracts
Sources: Indenture (Phonetel Technologies Inc), Indenture (Phonetel Technologies Inc)
Subsidiary Guarantees. Each (a) Subject to the provisions of this Article 7 each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesGuarantor, jointly and severally, hereby irrevocably unconditionally guarantees to each Holder and to the Trustee and its successors and assigns of a Note that: (ai) the full and punctual payment of principal of of, premium, if any, and interest on the Notes shall be duly and punctually paid in full when due, whether at stated maturity, by acceleration, by redemption call for redemption, upon a Change of Control, or otherwise, and all other monetary obligations of interest on overdue principal, premium, if any, interest on any interest (to the Company under this Indenture and extent permitted by law), if any, on the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture to Holders of Notes will be promptly paid in full or performed, all in accordance with the terms hereof and the Notes thereof, (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, ii) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other obligations, 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 maturity, by acceleration, call for redemption, upon a Change of Control, or otherwise, and (iii) the prompt payment of any and all costs and expenses (including reasonable attorneys' fees) incurred by the Holder of Notes in successfully enforcing any rights under the Notes. Each Failing payment when due of any amount so guaranteed or failing performance of any other obligation of the Company to the Holders of Notes, for whatever reason, each Subsidiary Guarantor waives presentation toshall be jointly and severally obligated to pay, demand or to perform or to cause the performance of, payment from and protest to the Company same immediately. An Event of any Default under the Notes shall constitute an event of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Subsidiary Guarantees, and shall entitle the Holders of Notes or to accelerate the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder in the same manner and to the same extent as the obligations of the Company. Each Subsidiary Guarantor hereby agrees that its obligations hereunder shall not be affected by: (a) unconditional, irrespective of the failure validity, regularity, or enforceability of the Notes, the absence of any Holder or the Trustee to assert any claim or demand or action to enforce the same, any right waiver or remedy consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Company Company, any action to enforce the same or any other Person under this Indenture, the Notes circumstance which might otherwise 35 140 constitute a legal or any other agreement equitable discharge or otherwise; (b) any extension or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance hereby waives and compliance when due relinquishes: (and not a guarantee of collectionA) and waives any right to require that any resort be had by any Holder the Holders of Notes or the Trustee Company (each, a "Benefitted Party") to proceed against the Company, the Subsidiary Guarantors, or any other Person or to proceed against or exhaust any security held for payment by a Benefitted Party at any time or to pursue any other remedy in any secured party's power before proceeding against the Subsidiary Guarantor; (B) any defense that may arise by reason of the Guaranteed Obligationsincapacity, lack of authority, death, or disability 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 Note), 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 the Subsidiary Guarantors, the Company, any Benefitted Party, any creditor of the Subsidiary Guarantors, the Company or on the part of any other Person whomsoever in connection with any obligations the performance of which are hereby guaranteed; (D) any defense based upon an election of remedies by a Benefitted Party, including but not limited to an election to proceed against the Subsidiary Guarantors for reimbursement; (E) 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; (F) any defense arising because of a Benefitted Party's election, in any proceeding instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy Code; and (G) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code. The Subsidiary Guarantors hereby covenant that the Subsidiary Guarantors shall not be discharged except by payment in full of all principal, premium, if any, and interest on the Notes and all other costs provided for under this Note.
(b) If any Holder of Notes is required by any court or otherwise to return to either the Company or the Subsidiary Guarantors, or any trustee or similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by the Company or the Subsidiary Guarantors to such Holder of Notes, the Subsidiary Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect.
(c) Each of the Subsidiary Guarantors agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trusteeof Notes, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 5 for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee hereinhereof, notwithstanding any stay, injunction injunction, or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 65, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes purpose of this Section. Each its Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantee.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Kevco Partners Investment Trust), Securities Purchase Agreement (Kevco Inc)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesSubject to Section 10.05 hereof, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, the Notes and the Obligations of the Company hereunder and thereunder, that: (a) the full principal of, premium, if any, interest and punctual payment of principal of and interest Liquidated Damages, if any, on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration, by redemption or otherwise, and interest on the overdue principal, premium, if any (to the extent permitted by law), interest on any interest, if any, and Liquidated Damages, if any, on the Notes, and all other monetary obligations payment Obligations of the Company under this Indenture to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the Notes terms hereof and thereof; and (b) the full and punctual performance within applicable grace periods in case of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration, redemption or otherwise. Each Subsidiary Guarantor waives presentation to, demand of, Failing payment from and protest to the Company when so due of any amount so guaranteed or any performance so guaranteed for whatever reason the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Guaranteed Obligations and also waives notice Notes shall constitute an event of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity or enforceability of the Notes or this Indenture, the Guaranteed Obligationsabsence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. The obligations Each Guarantor hereby waives diligence, presentment, demand of each payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantor hereunder shall Guarantee will not be affected by: (a) discharged except by complete performance of the failure of Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to assert return to the Company, the Guarantors, or any claim Note Custodian, Trustee, liquidator or demand other similar official acting in relation to either the Company or to enforce the Guarantors, any right or remedy against amount paid by the Company or any other Person under this IndentureGuarantor to the Trustee or such Holder, the Notes or Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to, and hereby waives, any other agreement or otherwise; (b) any extension or renewal right of subrogation in relation to the Holders in respect of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantorguaranteed hereby. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of such its Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed thereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 66 hereof, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary the Guarantor for the purposes purpose of this Sectionits Subsidiary Guarantee. Each Subsidiary The Guarantors shall have the right to seek contribution from any non-paying Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by as provided in Section 10.05 hereof so long as the exercise of such right does not impair the rights of the Holders or the Trustee under the Subsidiary Guarantees or any Holder in enforcing any rights under this SectionIndenture.
Appears in 2 contracts
Sources: Indenture (Ames Department Stores Inc), Indenture (Ames Department Stores Inc)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby fully and unconditionally guarantees on a general unsecured senior basis, as primary obligor and irrevocably guaranteesnot merely as surety, jointly and severallyseverally with each other Subsidiary Guarantor, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company principal, interest, premium, Additional Amounts, penalties, fees, indemnifications, reimbursements, damages, and other liabilities payable under this Indenture the Notes, Subsidiary Guarantees and the Notes and Indenture (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called such guaranteed obligations, the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent permitted by law) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor it, and that such Subsidiary Guarantor it will remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Obligation. 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.
(b) Each Subsidiary Guarantor waives presentation presentment to, demand of, of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (bii) any extension or renewal of any thereof; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (div) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (ev) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the ObligationsSubsidiary Guarantor; or (fvi) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. the Company.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section.
Appears in 2 contracts
Sources: Indenture (Arcos Dorados Holdings Inc.), Indenture (Arcos Dorados Holdings Inc.)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesSubject to this Article 10, each of the Guarantors hereby, jointly and severally, 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 (a) the full and punctual payment of principal of and interest on the Notes when dueassigns, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations irrespective of the Company under this Indenture validity and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions enforceability of this Indenture, the Notes held thereby and the Obligations of the Issuers hereunder and thereunder, that: (a) the principal of and interest and premium, if any, on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise, and interest on the overdue principal of and premium and (to the extent permitted by law) interest on the Notes, and all other payment Obligations of the Issuers to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise. Failing payment when so due of any amount so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Issuers. 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 an Issuer, any action to enforce the same or any other agreement; circumstance (dother than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor further, to the release extent permitted by law, hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of an Issuer, any security held right to require a proceeding first against an Issuer, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee will not be discharged except by complete performance of the Obligations contained in the Notes and this Indenture. If any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had is required by any Holder court or otherwise to return to an Issuer, the Trustee to any security held for payment of the Guaranteed Obligations. 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 paymentGuarantors, or any part thereofCustodian, Trustee or other similar official acting in relation to any of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder the Issuers or the Guarantors, any amount paid by an Issuer or any Guarantor to the Trustee upon or such Holder, the bankruptcy or reorganization of Subsidiary Guarantees, to the Company or otherwiseextent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to, and hereby waives, any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby. Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of such its Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed thereby, and (yb) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 66 hereof, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary the Guarantor for the purposes purpose of this Sectionits Subsidiary Guarantee. Each 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 Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantees.
Appears in 2 contracts
Sources: Indenture (Genesis Energy Lp), Indenture (Genesis Energy Lp)
Subsidiary Guarantees. Each (a) Subject to this Article 10, each Restricted Subsidiary Guarantor hereby unconditionally of the Company designated by the Company from time to time as a Subsidiary Guarantor, upon execution and irrevocably guaranteesdelivery of a supplemental indenture substantially in the form of Exhibit C hereto, shall jointly and severally, severally unconditionally guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:
(a1) the full principal of, and punctual payment of principal of any premium and interest on on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations interest on the overdue principal of and interest on the Company under this Indenture Notes, if any, if lawful, and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and the Notes thereof; and
(all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, 2) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at the date scheduled to be paid, by acceleration or otherwise. In addition to the foregoing, by executing and delivering such supplemental indenture, each Subsidiary Guarantor shall also agree, unconditionally and jointly and severally with each other Subsidiary Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Subsidiary Guarantor. 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 waives presentation toGuarantor, demand ofby executing and delivering such supplemental indenture, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under agree that this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes is a guarantee of payment, performance and compliance when due (payment and not a guarantee of collection.
(b) Each Subsidiary Guarantor, by executing and waives delivering such supplemental indenture, shall agree 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 hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Subsidiary Guarantor, by executing and delivering such supplemental indenture, shall waive diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that any resort its Subsidiary Guarantee will not be had discharged except by complete performance of the obligations contained in the Notes and this Indenture or release in accordance with Section 10.05 hereof.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, a Subsidiary Guarantor 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, each Subsidiary Guarantee, to the extent theretofore discharged, will be reinstated and be in full force and effect.
(d) Each Subsidiary Guarantor, by executing and delivering such supplemental indenture, shall agree that it will not be entitled to any security held for right of subrogation in relation to the Holders in respect of any obligations guaranteed thereby until payment in full of the Guaranteed Obligationsall obligations guaranteed thereby. Each Subsidiary Guarantor Guarantor, by executing and delivering such supplemental indenture, shall 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees agree that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x1) the maturity of the Guaranteed Obligations obligations guaranteed by the Subsidiary Guarantees may be accelerated as provided in Article 6 hereof for the purposes of such any Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed thereby, and (y2) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 66 hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by such the Subsidiary Guarantor Guarantors for the purposes purpose of the Subsidiary Guarantees.
(e) Except as provided herein, the provisions of this Section. Each Article 10 cover all agreements between the parties hereto relative to each Subsidiary Guarantor also agrees to pay Guarantee and none of the parties shall be bound by any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred representation, warranty or promise made by the Trustee or any Holder in enforcing any rights under this SectionPerson relative thereto which is not embodied herein.
Appears in 2 contracts
Sources: Indenture (Medco Health Solutions Inc), Indenture (Medco Health Solutions Inc)
Subsidiary Guarantees. Each If DBS Corp or any Guarantor transfers or causes to be transferred, in one or a series of related transactions, property or assets (including, without limitation, businesses, divisions, real property, assets or equipment) having a fair market value (as determined in good faith by the Board of Directors of EchoStar evidenced by a resolution of the Board of Directors of EchoStar and set forth in an Officers' Certificate delivered to the Trustee; PROVIDED, HOWEVER that if the fair market value exceeds $10 million, the fair market value shall be determined by an investment banking firm of national standing selected by DBS Corp) exceeding $500,000 to any Restricted Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesof DBS Corp that is neither a Subsidiary of ESBC nor a Guarantor, jointly and severallyEchoStar, to each Holder the extent not otherwise precluded by obligations set forth in the 1997 Notes Indenture, 1996 Notes Indenture or the 1994 Notes Indenture, shall, or shall cause the owner of such Subsidiary to: (a) enter into a pledge agreement in order to pledge all of the issued and outstanding Capital Stock of such Subsidiary as security to the Trustee and its successors and assigns (a) for the full and punctual payment of principal of and interest on the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations benefit of the Company under this Indenture and Holders of the Notes Notes; and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from cause such Subsidiary Guarantor to: (i) execute and that deliver to the Trustee a supplemental indenture in form and substance reasonably satisfactory to the Trustee pursuant to which such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal shall unconditionally Guarantee all of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default EchoStar's obligations under the Notes or and execute a notation in form and substance reasonably satisfactory to the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: Trustee; and (aii) the failure of any Holder or deliver to the Trustee an Opinion of Counsel reasonably satisfactory to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06that such pledge agreement and such supplemental indenture have been duly authorized, any change in the ownership executed and delivered by and are valid and binding obligations of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall continue to be effective or be reinstatedsuch owner, as the case may be; PROVIDED, if at any time paymentHOWEVER, that the foregoing provisions shall not apply to transfers of property or assets (other than cash) by DBS Corp or any part thereof, Guarantor in exchange for cash or Cash Equivalents in an amount equal to the fair market value (as determined in good faith by the Board of principal Directors of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored EchoStar evidenced by any Holder or the Trustee upon the bankruptcy or reorganization a resolution of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, Board of Directors of EchoStar and the Holders and set forth in an Officers' Certificate delivered to the Trustee; PROVIDED, on FURTHER, HOWEVER, that if the other handfair market value exceeds $10 million, (xthe fair market value shall be determined by an investment banking firm of national standing selected by EchoStar) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction property or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Sectionassets.
Appears in 2 contracts
Sources: Indenture (Echostar Communications Corp), Indenture (Echostar Communications Corp)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesGuarantor, jointly and severally, hereby unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its their respective successors and assigns (a) the full and punctual payment of principal of and interest on the Notes when dueassigns, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations irrespective of the Company under this Indenture validity and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions enforceability of this Indenture, the Notes or any other agreement; the obligations of the Company hereunder or thereunder, that: (da) the release principal of and any premium and interest on the Notes shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on premium and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder 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 security held extension of time of payment or renewal of any 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 maturity, by acceleration 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. 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 Trustee for recovery of any judgment against the Guaranteed Obligations Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee hereby waives diligence, presentment, demand of payment, performance and compliance when due (and not filing of claims with a guarantee court in the event of collection) and waives insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that any resort this Subsidiary Guarantee shall not be had discharged (other than in accordance with Article Four or Section 1404 of this Indenture) except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to any security held for payment of return to the Guaranteed Obligations. Each Company or 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 paymentGuarantors, or any part thereofcustodian, of principal of trustee, liquidator or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of other similar official acting in relation to either the Company or otherwiseSubsidiary 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 further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 Five for the purposes of such this Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, obligations guaranteed hereby and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6Five, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. In order to provide for just and equitable contribution among the Subsidiary Guarantors, in the event any payment or distribution is made by any Subsidiary Guarantor (a "Funding Subsidiary Guarantor") under its Subsidiary Guarantee, such Funding Subsidiary Guarantor shall be entitled to a contribution from each other Subsidiary Guarantor in a pro rata amount based on the Adjusted Net Assets of each Subsidiary Guarantor (including the Funding Subsidiary Guarantor) for all payments, damages and expenses incurred by the purposes of this SectionFunding Subsidiary Guarantor in discharging the Company's obligations with respect to the Notes or any other Subsidiary Guarantor's obligations with respect to any Subsidiary Guarantee. Each Subsidiary Guarantor also agrees that it will not be entitled to pay exercise any and right of subrogation or contribution in relation to the Holders of Notes in respect of any obligations guaranteed hereby until payment in full of all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights amounts guaranteed under this SectionSection 1401.
Appears in 2 contracts
Sources: Sixth Supplemental Indenture (Pride International Inc), Fifth Supplemental Indenture (Pride International Inc)
Subsidiary Guarantees. Each (a) Subject to the provisions of this Article Four, each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, severally unconditionally guarantees to each Holder and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of the 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 full and punctual payment of principal of of, premium, if any, and interest on the Notes will be duly and punctually paid in full when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, and all other monetary obligations of interest on the Company under this Indenture overdue principal and (to the extent permitted by law) interest, if any, on the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture or the Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder (including fees, expenses or other) and all other obligations with respect to the Notes and the Notes Indenture will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, ii) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationNotes, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration or otherwise. Each Failing payment when due of any amount so guaranteed, or failing performance of any other obligation of the Company to the Holders, for whatever reason, each Subsidiary Guarantor waives presentation towill be obligated, demand jointly and severally with each other Subsidiary Guarantor, to pay, or to perform or cause the performance of, payment from the same immediately. An Event of Default under the Indenture or the Notes shall constitute an event of default under this Article Four, and protest shall entitle the Holders of Notes to accelerate the obligations of the Subsidiary Guarantors hereunder in the same manner and to the Company of any same extent as the obligations of the Guaranteed Obligations Company.
(b) Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be continuing, absolute and also waives notice unconditional, irrespective of, and shall be unaffected by, the validity, regularity or enforceability of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal absence of any thereof; (c) action to enforce the same, any rescission, waiver, amendment waiver or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held consent by any Holder or the Trustee for with respect to any provisions hereof or thereof, any release of any other Subsidiary Guarantor, the Guaranteed Obligations 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 them; (e) a Subsidiary Guarantor. Each of the failure Subsidiary Guarantors hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in the Notes, the Indenture and this Article Four. If any Holder or the Trustee is required by any court or otherwise to exercise return to the Company or to any right Subsidiary Guarantor, or remedy against any custodian, trustee, liquidator or other guarantor of similar official acting in relation to the Obligations; Company or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had amount paid by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwisesuch Subsidiary Guarantor to the Trustee or such Holder, this Article Four, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (xi) subject to this Article Four, the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 Section 6.02 of the Indenture for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee hereinthis Article Four, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6Section 6.02 of the Indenture, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Article Four.
(c) This Article Four 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. 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 Guarantees shall be limited to the maximum amount which, after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor for the purposes and after giving effect to any collections from or payments made by or on behalf of this Section. Each any other Subsidiary Guarantor also agrees in respect of the obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to pay any its contribution obligations under the Indenture, will result in the obligations of such Subsidiary Guarantor and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee its Subsidiary Guarantee not constituting a fraudulent conveyance or any Holder in enforcing any rights fraudulent transfer under this Sectionfederal or state law.
Appears in 2 contracts
Sources: Indenture (Beazer Homes Usa Inc), Thirteenth Supplement Indenture (Beazer Homes Usa Inc)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, fully, unconditionally and irrevocably, irrespective of the validity and enforceability of this Indenture, the Notes, the Collateral Documents, or the obligations of the Issuers hereunder or thereunder, guarantees the Notes and obligations of the Issuers hereunder and thereunder, and guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns on behalf of such Holder, that: (a) the full and punctual payment of principal of and interest on the Notes shall be promptly paid in full when due, whether at maturityStated Maturity, by acceleration, by call for redemption or otherwiseotherwise (including, without limitation, the amount that would become due but for the operation of the automatic stay under Section 362(a) of the Federal Bankruptcy Code), together with interest on the overdue principal, if any, and all other monetary obligations of interest on any overdue interest, to the Company under this Indenture extent lawful, and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture Issuers to the Holders or the Trustee hereunder or thereunder shall be 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 of any such other obligations, the Notes (all same shall be paid in full when due or performed in accordance with the foregoing being hereinafter collectively called terms of the “Guaranteed Obligations”)extension or renewal, whether at Stated Maturity, by acceleration 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 of the Subsidiary Guarantees of the Subsidiary Guarantors shall be a guarantee of payment and not of collection. Each Subsidiary Guarantor further hereby agrees that the Guaranteed Obligations may its obligations hereunder shall be extended or renewedjoint, in whole or in partseveral, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation tounconditional, demand of, payment from and protest to the Company of any irrespective of the Guaranteed Obligations and also waives notice validity, regularity or enforceability of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the 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 either of the Issuers, any action to enforce the same or any other agreement circumstance which might otherwise constitute a legal or otherwise; (b) any extension equitable discharge or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further 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 Issuers (each, a “Benefitted Party”), as a condition of payment or performance by such Subsidiary Guarantor, to (i) proceed against the Issuers, any other guarantor (including any other Subsidiary Guarantor) of the Obligations of the Subsidiary Guarantors under their Subsidiary Guarantees or any other Person, (ii) proceed against or exhaust any security held from the Issuers, any such other guarantor or any other Person, (iii) proceed against or have resort to any balance of any deposit account or credit on the books of any Benefitted Party in favor of the Issuers or any other Person, or (iv) pursue any other remedy in the power of any Benefitted Party whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of the Issuers including any defense based on or arising out of the lack of validity or the unenforceability of the Obligations under the Subsidiary Guarantees of the Subsidiary Guarantors or any agreement or instrument relating thereto or by reason of the cessation of the
(i) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees of the Subsidiary Guarantors and any legal or equitable discharge of such Subsidiary Guarantor’s obligations hereunder, (ii) the benefit of any statute of limitations affecting such Subsidiary Guarantor’s liability hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments and counterclaims, and promptness, diligence and any requirement that any Benefitted Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary Guarantees of the Subsidiary Guarantors, notices of default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Obligations of the Subsidiary Guarantors under their Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Issuers and any right to consent to any thereof; (g) to the extent permitted under Section 40.495 of the Nevada Revised Statutes, the benefits of the “One Action” rule under Section 40.430 of the Nevada Revised Statutes; 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. Each Subsidiary Guarantor hereby covenants that its Subsidiary Guarantee herein constitutes a guarantee will not be discharged except by complete performance of payment, performance the obligations contained in its Subsidiary Guarantee and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to either the Issuers or any security held for payment of Subsidiary Guarantor, or any custodian, trustee, or similar official acting in relation to either the Guaranteed ObligationsIssuers or such Subsidiary Guarantor, any amount paid by the Issuers or such Subsidiary Guarantor to the Trustee or such Holder, the applicable Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor further agrees that its it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantee herein Guarantor agrees that it shall continue not be entitled to be effective or be reinstatedany right of subrogation in relation to the Holders in respect of any obligations, as the case may be, if at any time payment, or any part thereof, guaranteed hereby until payment in full of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by all obligations guaranteed hereby. If any Holder or the Trustee upon is required by any court or otherwise to return to the bankruptcy Issuers or reorganization any Subsidiary Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to either of the Company Issuers or otherwiseany Subsidiary Guarantor, any amount paid by any of them to the Trustee or such Holder, the Subsidiary Guarantee of each of the Subsidiary Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor further agrees that, as between iteach Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 Six hereof for the purposes of the Subsidiary Guarantee of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6Six hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Subsidiary Guarantor for the purposes purpose of this Section. Each the Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantee of such Subsidiary Guarantor.
Appears in 2 contracts
Sources: Indenture (Circus & Eldorado Joint Venture), Indenture (Circus & Eldorado Joint Venture)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteeshereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and to delivered by the Trustee and its successors and assigns that: (ai) the full and punctual payment of principal of of, premium, if any, and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, to the extent lawful, and all other monetary obligations Obligations of the Company to the Holders or the Trustee under this Indenture and the Notes will be promptly paid in full, all in accordance with the terms of this Indenture and the Notes; and (bii) in case of any extension of time of payment of any Notes or any of such other Obligations, that the Notes will be promptly paid in full and punctual performance within applicable grace periods when due in accordance with the terms of all other obligations of such extension or renewal, whether at Stated Maturity, by acceleration or otherwise. In the event that the Company fails to pay any amount guaranteed by the Subsidiary Guarantors for any reason whatsoever, the Subsidiary Guarantors will be jointly and severally obligated to pay such amount immediately. The Subsidiary Guarantors hereby further agree that their Obligations under this Indenture and the Notes (all shall be unconditional, regardless of the foregoing being hereinafter collectively called validity, regularity or enforceability of this Indenture or the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that Notes, the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal absence of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation action to enforce this Indenture or the Notes, any waiver or consent by any Holder with respect to any provisions of this Indenture or the Notes, any modification or amendment of, or supplement to, demand ofthis Indenture or the Notes, payment from and protest to the Company recovery of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy judgment against the Company or any other Person under this Indentureaction to enforce any such judgment, the Notes or any other agreement circumstance that might otherwise constitute a legal or otherwise; (b) any extension equitable discharge or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further agrees hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee herein constitutes a guarantee of payment, the Company’s Obligations under this Indenture and the Notes will not be discharged except by complete performance and compliance when due (and not a guarantee by the Company or another Subsidiary Guarantor of collection) and waives any right to require that any resort be had by such Obligations. If any Holder or the Trustee is required by any court or otherwise to return to the Company, any security held for payment Subsidiary Guarantor or a Custodian of the Guaranteed ObligationsCompany or a Subsidiary Guarantor any amount paid by the Company or any Subsidiary Guarantor to the Trustee or such Holder, the Subsidiary Guarantee of the Company’s Obligations under this Indenture and the Notes by each Subsidiary Guarantor shall, to the extent previously discharged as a result of any such payment, be immediately reinstated and be in full force and effect. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further hereby acknowledges and agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Company’s Obligations under this Indenture and the Notes may be accelerated as provided in Article 6 VI for the purposes of such the Subsidiary Guarantor’s Subsidiary Guarantee herein, Guarantees notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsacceleration, and (y) in the event of any declaration of acceleration of such Guaranteed the Company’s Obligations under this Indenture and the Notes as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of the Subsidiary Guarantees.
(b) Each Subsidiary Guarantor hereby waives all rights of subrogation, contribution, reimbursement and indemnity, and all other rights, that such Subsidiary Guarantor for would have against the purposes Company at any time as a result of this Section. any payment in respect of its Subsidiary Guarantee (whether contractual, under Section 509 of the Bankruptcy Code, or otherwise).
(c) Each Subsidiary Guarantor also that makes or is required to make any payment in respect of its Subsidiary Guarantee shall be entitled to seek contribution from the other Subsidiary Guarantors to the extent permitted by applicable law; provided that each Subsidiary Guarantor agrees that any such claim for contribution that such Subsidiary Guarantor may have against any other Subsidiary Guarantor shall be subrogated to the prior payment in full in cash of all Obligations owed to Holders under or in respect of the Notes.
(d) Upon the sale or other transfer (including by way of consolidation or merger) of Capital Stock in such Subsidiary Guarantor or issuance of Capital Stock by such Subsidiary Guarantor, in each case, following which such Subsidiary Guarantor ceases to be a Subsidiary of the Company, or upon the sale or other disposition of all or substantially all of the assets of such Subsidiary Guarantor (including by way of consolidation or merger) to a Person other than the Company or a Subsidiary Guarantor or upon the liquidation, dissolution or winding up of such Subsidiary Guarantor, such Subsidiary Guarantor shall be deemed automatically and unconditionally released from all its obligations under its Subsidiary Guarantee.
(e) Upon the designation of a Subsidiary Guarantor as an Unrestricted Subsidiary in compliance with the provisions of this Indenture or upon such Subsidiary Guarantor ceasing to be a guarantor or obligor under the Senior Credit Agreement (other than a release as a result of the repayment in full of the Indebtedness under the Senior Credit Agreement), such Subsidiary Guarantor shall be deemed automatically and unconditionally released from all its obligations under its Subsidiary Guarantee.
(f) Each Subsidiary Guarantor may consolidate with or merge into or sell its assets to the Company or another Subsidiary Guarantor without limitation. A Subsidiary Guarantor may consolidate with or merge into or sell its assets to a corporation other than the Company or another Subsidiary Guarantor (whether or not affiliated with such Subsidiary Guarantor, but subject to the provisions described in Section 11.01(d)), provided that (a) if the Surviving Person is not the Subsidiary Guarantor, the Surviving Person agrees to pay any assume such Subsidiary Guarantor’s obligations under its Subsidiary Guarantee and all costs its obligations under this Indenture and expenses (including reasonable attorneys’ fees b) such transaction does not (i) violate any covenants set forth in this Indenture or (ii) result in a Default or Event of Default under this Indenture immediately thereafter that is continuing.
(g) The Subsidiary Guarantee of each Subsidiary Guarantor will be automatically and expensesunconditionally released in connection with a Legal Defeasance or Covenant Defeasance of this Indenture or upon satisfaction and discharge of this Indenture. Notwithstanding the foregoing, if any Subsidiary Guarantor ceases to be a Subsidiary, unless such Subsidiary Guarantor is also released from its obligations under the Senior Credit Agreement and the 2029 Secured Notes Indenture, such Subsidiary Guarantor shall not be released from its obligations under the Notes unless (i) incurred the transaction or transactions that caused such Subsidiary Guarantor to cease to be a Subsidiary are entered into for a bona fide business purpose (as determined in good faith by the Trustee or any Holder Company) and, for the avoidance of doubt, not for the primary purpose of causing such release, (ii) the portion of Equity Interests that caused such Subsidiary Guarantor to cease to be a Subsidiary were not transferred to an Affiliate of the Company (other than for purposes of a bona fide joint venture arrangement on terms that are not less favorable than arm’s-length terms, as determined in enforcing any rights under this Sectiongood faith by the Company) and (iii) after giving pro forma effect to the applicable release, in the event the Company continues to retain an ownership interest in such Subsidiary Guarantor, the Company is deemed to have made a new Investment in such Person on the date of such release (as if such Person were not a Subsidiary Guarantor) in an amount equal to the portion of the fair market value (as determined in good faith by the Company) of the Company’s retained ownership interest in such Person and such Investment is permitted hereunder.
Appears in 2 contracts
Sources: Indenture (Gray Media, Inc), Indenture (Gray Media, Inc)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteeshereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and to delivered by the Trustee and its successors and assigns that: (ai) the full and punctual payment of principal of of, premium, if any, and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, to the extent lawful, and all other monetary obligations Obligations of the Company to the Holders or the Trustee under this Indenture and the Notes will be promptly paid in full, all in accordance with the terms of this Indenture and the Notes; and (bii) in case of any extension of time of payment of any Notes or any of such other Obligations, that the Notes will be promptly paid in full and punctual performance within applicable grace periods when due in accordance with the terms of all other obligations of such extension or renewal, whether at Stated Maturity, by acceleration or otherwise. In the event that the Company fails to pay any amount guaranteed by the Subsidiary Guarantors for any reason whatsoever, the Subsidiary Guarantors will be jointly and severally obligated to pay such amount immediately. The Subsidiary Guarantors hereby further agree that their Obligations under this Indenture and the Notes (all shall be unconditional, regardless of the foregoing being hereinafter collectively called validity, regularity or enforceability of this Indenture or the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that Notes, the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal absence of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation action to enforce this Indenture or the Notes, any waiver or consent by any Holder with respect to any provisions of this Indenture or the Notes, any modification or amendment of, or supplement to, demand ofthis Indenture or the Notes, payment from and protest to the Company recovery of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy judgment against the Company or any other Person under this Indentureaction to enforce any such judgment, the Notes or any other agreement circumstance that might otherwise constitute a legal or otherwise; (b) any extension equitable discharge or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further agrees hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee herein constitutes a guarantee of payment, the Company’s Obligations under this Indenture and the Notes will not be discharged except by complete performance and compliance when due (and not a guarantee by the Company or another Subsidiary Guarantor of collection) and waives any right to require that any resort be had by such Obligations. If any Holder or the Trustee is required by any court or otherwise to return to the Company, any security held for payment Subsidiary Guarantor or a Custodian of the Guaranteed ObligationsCompany or a Subsidiary Guarantor any amount paid by the Company or any Subsidiary Guarantor to the Trustee or such Holder, the Subsidiary Guarantee of the Company’s Obligations under this Indenture and the Notes by each Subsidiary Guarantor shall, to the extent previously discharged as a result of any such payment, be immediately reinstated and be in full force and effect. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further hereby acknowledges and agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Company’s Obligations under this Indenture and the Notes may be accelerated as provided in Article 6 VI for the purposes of such the Subsidiary Guarantor’s Subsidiary Guarantee herein, Guarantees notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsacceleration, and (y) in the event of any declaration of acceleration of such Guaranteed the Company’s Obligations under this Indenture and the Notes as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of the Subsidiary Guarantees.
(b) Each Subsidiary Guarantor hereby waives all rights of subrogation, contribution, reimbursement and indemnity, and all other rights, that such Subsidiary Guarantor for would have against the purposes Company at any time as a result of this Section. any payment in respect of its Subsidiary Guarantee (whether contractual, under Section 509 of the Bankruptcy Code, or otherwise).
(c) Each Subsidiary Guarantor also that makes or is required to make any payment in respect of its Subsidiary Guarantee shall be entitled to seek contribution from the other Subsidiary Guarantors to the extent permitted by applicable law; provided that each Subsidiary Guarantor agrees that any such claim for contribution that such Subsidiary Guarantor may have against any other Subsidiary Guarantor shall be subrogated to the prior payment in full in cash of all Obligations owed to Holders under or in respect of the Notes.
(d) Each Subsidiary Guarantor may consolidate with or merge into or sell its assets to the Company or another Subsidiary Guarantor without limitation. A Subsidiary Guarantor may consolidate with or merge into or sell its assets to a corporation other than the Company or another Subsidiary Guarantor (whether or not affiliated with such Subsidiary Guarantor, but subject to the provisions described in Section 11.01(d)), provided that (a) if the Surviving Person is not the Subsidiary Guarantor, the Surviving Person agrees to pay any assume such Subsidiary Guarantor’s obligations under its Subsidiary Guarantee and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights its obligations under this SectionIndenture and (b) such transaction does not (i) violate any covenants set forth in this Indenture or (ii) result in a Default or Event of Default under this Indenture immediately thereafter that is continuing.
Appears in 2 contracts
Sources: Indenture (E.W. SCRIPPS Co), Indenture (E.W. SCRIPPS Co)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees(a) Subject to this Section 5.3, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder and to holder of the Trustee and its successors and assigns Notes (aeach, a “Holder”) that: (i) the full and punctual payment of principal of of, and interest on on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations interest on the overdue principal of and interest on the Company under this Indenture Notes, if any, if lawful, and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture to the holders of a Note thereunder will be promptly paid in full or performed, all in accordance with the terms thereof and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, ii) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any of such other agreement obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration or otherwise; (b) any extension or renewal . Failing payment when due of any thereof; (c) amount so guaranteed or any rescission, waiver, amendment or modification of any of the terms or provisions of this Indentureperformance so guaranteed for whatever reason, the Notes or any other agreement; (d) Guarantors will be jointly and severally obligated to pay the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantorsame immediately. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes this is a guarantee of payment, performance and compliance when due (payment and not a guarantee of collection.
(b) and waives The Guarantors hereby agree that, to the fullest extent permitted by applicable law, their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Agreement, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives, to the fullest extent permitted by applicable law, diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Agreement.
(c) If any resort be had Holder is required by any Holder court or otherwise to return to the Trustee to any security held for payment of Company, the Guaranteed Obligations. 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, Guarantors or any part thereofcustodian, of principal of trustee, liquidator or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of other similar official acting in relation to either the Company or otherwisethe Guarantors, any amount paid by either to such Holder, this guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the TrusteeHolders, on the other hand, (xi) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 the Notes for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee hereinthis guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6the Notes, such Guaranteed Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by such Subsidiary Guarantor the Guarantors for the purpose of this guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under this guarantee.
(e) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of this SectionTitle 11 of the U.S. Code or any similar federal or state law for the relief of debtors, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any guarantee. Each Subsidiary To effectuate the foregoing intention, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor also agrees will be limited to pay any the maximum amount that will, after giving effect to such maximum amount and all costs other contingent and expenses (including reasonable attorneys’ fees fixed liabilities of such Guarantor that are relevant under such laws, and expenses) incurred after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the Trustee or any Holder in enforcing any rights obligations of such other Guarantor under this SectionSection 5.3, result in the obligations of such Guarantor under its guarantee not constituting a fraudulent transfer or conveyance.
(f) Within five Business Days (or such extended period as the Requisite Holders may allow) of the acquisition or creation of any direct or indirect subsidiary, the Company shall cause such subsidiary to execute and to deliver to the Holders a Notation of Guarantee.
Appears in 2 contracts
Sources: Securities Purchase Agreement (4Licensing Corp), Securities Purchase Agreement (Prescott Group Capital Management, L.L.C.)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesof the Guarantors hereby, jointly and severally, unconditionally guaranty to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the full and punctual payment of principal of and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations interest on the overdue principal of and interest on the Company under this Indenture Notes, if any, if lawful, and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and the Notes thereof; and (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, b) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Each Subsidiary Guarantor waives presentation to, demand of, Failing payment from and protest to the Company when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the Guaranteed Obligations and also waives notice validity, regularity or enforceability of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or this Indenture, the Guaranteed Obligationsabsence 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 a guarantor. The obligations Each Guarantor hereby waives diligence, presentment, demand of each payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantor hereunder shall Guarantee will not be affected by: (a) discharged except by complete performance of the failure of obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to assert any claim or demand or return to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 paymentGuarantors, or any part thereofCustodian, of principal of Trustee, liquidator or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of other similar official acting in relation to either the Company or otherwiseGuarantors, 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 they 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 itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of such this Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor the Guarantors for the purposes purpose of this SectionSubsidiary Guarantee. Each Subsidiary The Guarantors shall have the right to seek contribution from any non-paying Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by so long as the Trustee or any Holder in enforcing any exercise of such right does not impair the rights of the Holders under this Sectionthe Guarantee.
Appears in 2 contracts
Sources: Indenture (Shop at Home Inc /Tn/), Indenture (Pillowtex Corp)
Subsidiary Guarantees. Each (a) The Additional Subsidiary Guarantor hereby fully and unconditionally guarantees on a general unsecured senior basis, as primary obligor and irrevocably guaranteesnot merely as surety, jointly and severallyseverally with each other Subsidiary Guarantor, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company principal, interest, premium, Additional Amounts, penalties, fees, indemnifications, reimbursements, damages, and other liabilities payable under this Indenture the Notes, Subsidiary Guarantees and the Notes and Indenture (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called such guaranteed obligations, the “Guaranteed Obligations”). Each The Additional Subsidiary Guarantor further agrees (to the extent permitted by law) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor it, and that such Subsidiary Guarantor it will remain bound under this Article 10 Agreement notwithstanding any extension or renewal of any Guaranteed Obligation. Each The Additional 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.
(b) The Additional Subsidiary Guarantor waives presentation presentment to, demand of, of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each The Additional Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each the Additional Subsidiary Guarantor hereunder shall not be affected by: by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this the Indenture, the Notes or any other agreement or otherwise; (bii) any extension or renewal of any thereof; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this the Indenture, the Notes or any other agreement; (div) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (ev) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the ObligationsSubsidiary Guarantor; or (fvi) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each the Company.
(c) The Additional Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(d) The Additional Subsidiary Guarantors further expressly waives irrevocably and unconditionally:
(i) Any right it may have to first require any Holder to proceed against, initiate any actions before a court of law or any other judge or authority, or enforce any other rights or security or claim payment from the Company or any other Person (including any Subsidiary Guarantor or any other guarantor) before claiming from it under this Indenture;
(ii) Any rights and benefits set forth in the following provisions of Argentine law: Articles 480, 481 and 482 of the Argentine Commercial Code and Articles 1990, 2020 and 2021 (other than with respect to defenses or motions based on documented payment (pago), reduction (quita), extension (espera) or release or remission (remisión), 2012, 2013 and 2024 (beneficios de excusión y división), 2025, 2026, 2029, 2043, 2046 and 2050 of the Argentine Civil Code;
(iii) Any rights to the benefits of orden, excusión, división, quita and espera arising from Articles 2814, 2815, 2817, 2818, 2819, 2820, 2821, 2822, 2823, 2826, 2837, 2839, 2840, 2845, 2846, 2847 and any other related or applicable Articles that are not explicitly set forth herein because of the Additional Subsidiary Guarantor’s knowledge thereof, of the Código Civil Federal of Mexico and the Código Civil of each State of the Mexican Republic and for the Federal District of Mexico;
(1) the collection benefit (beneficio de excusión) granted by articles 1812, 1815, 1816, 1818 of the Venezuelan Civil Code; (2) the division benefit (beneficio de división) granted in articles 1819 and 1820 of the Venezuelan Civil Code;
(v) Any right to which it may be entitled to have the assets of the Company or any other Person (including any Subsidiary Guarantor or any other guarantor) first be used, applied or depleted as payment of the Company’s or the Additional Subsidiary Guarantors’ obligations hereunder, prior to any amount being claimed from or paid by the Additional Subsidiary Guarantors hereunder; and
(vi) Any right to which it may be entitled to have claims hereunder divided among the Subsidiary Guarantors and the Additional Subsidiary Guarantor.
(e) The obligations of the Additional Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Each Without limiting the generality of the foregoing, the obligations of the Additional Subsidiary Guarantor herein shall not 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 the Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guaranteed 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 Additional Subsidiary Guarantor or would otherwise operate as a discharge of the Additional Subsidiary Guarantor as a matter of law or equity.
(f) The Additional 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 Guaranteed Obligation Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy bankruptcy, or reorganization of the Company or otherwise. Each .
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against the Additional Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guaranteed Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, the Additional Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of:
(i) the unpaid amount of such Guaranteed Obligations then due and owing in U.S. Dollars; and
(ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law).
(h) The Additional Subsidiary Guarantor further agrees that, as between itthe Additional Subsidiary Guarantor, on the one hand, and the Holders and the TrusteeHolders, on the other hand, :
(xi) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 the Indenture for the purposes of such Subsidiary Guarantor’s its Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and Obligations guaranteed hereby; and
(yii) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Obligations, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such the Additional Subsidiary Guarantor for the purposes of this Section. Each its Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantee.
Appears in 2 contracts
Sources: Indenture (Arcos Dorados Holdings Inc.), Indenture (Arcos Dorados Holdings Inc.)
Subsidiary Guarantees. Each (a) Subject to the provisions of this Article 7, each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesGuarantor, jointly and severally, hereby irrevocably unconditionally guarantees to each Holder and to the Trustee and its successors and assigns of a Note that: (ai) the full and punctual payment of principal of of, premium, if any, and interest on the Notes shall be duly and punctually paid in full when due, whether at stated maturity, by acceleration, by redemption call for redemption, upon a Change of Control, or otherwise, and all other monetary obligations of interest on overdue principal, premium, if any, interest on any interest (to the Company under this Indenture and extent permitted by law), if any, on the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture to Holders of Notes will be promptly paid in full or performed, all in accordance with the terms hereof and the Notes thereof, (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, ii) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other obligations, 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 maturity, by acceleration, call for redemption, upon a Change of Control, or otherwise, and (iii) the prompt payment of any and all costs and expenses (including reasonable attorneys' fees) incurred by the Holder of Notes in successfully enforcing any rights under the Notes. Each Failing payment when due of any amount so guaranteed or failing performance of any other obligation of the Company to the Holders of Notes, for whatever reason, each Subsidiary Guarantor waives presentation toshall be jointly and severally obligated to pay, demand or to perform or to cause the performance of, payment from and protest to the Company same immediately. An Event of any Default under the Notes shall constitute an event of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Subsidiary Guarantees, and shall entitle the Holders of Notes or to accelerate the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder in the same manner and to the same extent as the obligations of the Company. Each Subsidiary Guarantor hereby agrees that its obligations hereunder shall not be affected by: (a) unconditional, irrespective of the failure validity, regularity, or enforceability of the Notes, the absence of any Holder or the Trustee to assert any claim or demand or action to enforce the same, any right waiver or remedy consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Company Company, any action to enforce the same or any other Person under this Indenture, the Notes circumstance which might otherwise constitute a legal or any other agreement equitable discharge or otherwise; (b) any extension or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance hereby waives and compliance when due relinquishes: (and not a guarantee of collectionA) and waives any right to require that any resort be had by any Holder the Holders of Notes or the Trustee Company (each, a "Benefitted Party") to proceed against the Company, the Subsidiary Guarantors, or any other Person or to proceed against or exhaust any security held for payment by a Benefitted Party at any time or to pursue any other remedy in any secured party's power before proceeding against the Subsidiary Guarantor; (B) any defense that may arise by reason of the Guaranteed Obligationsincapacity, lack of authority, death, or disability 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 Note), 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 the Subsidiary Guarantors, the Company, any Benefitted Party, any creditor of the Subsidiary Guarantors, the Company or on the part of any other Person whomsoever in connection with any obligations the performance of which are hereby guaranteed; (D) any defense based upon an election of remedies by a Benefitted Party, including but not limited to an election to proceed against the Subsidiary Guarantors for reimbursement; (E) 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; (F) any defense arising because of a Benefitted Party's election, in any proceeding instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy Code; and (G) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code. The Subsidiary Guarantors hereby covenant that the Subsidiary Guarantors shall not be discharged except by payment in full of all principal, premium, if any, and interest on the Notes and all other costs provided for under this Note.
(b) If any Holder of Notes is required by any court or otherwise to return to either the Company or the Subsidiary Guarantors, or any trustee or similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by the Company or the Subsidiary Guarantors to such Holder of Notes, the Subsidiary Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect.
(c) Each of the Subsidiary Guarantors agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trusteeof Notes, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 5 for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee hereinhereof, notwithstanding any stay, injunction injunction, or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 65, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes purpose of this Section. Each its Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantee.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Kevco Partners Investment Trust), Securities Purchase Agreement (Kevco Inc)
Subsidiary Guarantees. Each At the time of the Bally’s Chicago Guarantees and for as long as the Bally’s Chicago Guarantees are in effect, each of Bally’s Chicago, Inc. and B▇▇▇▇’s Chicago OpCo shall cause any of their respective direct or indirect wholly-owned subsidiaries, including any other subsidiary that becomes a direct or indirect wholly-owned subsidiary of Bally’s Chicago, Inc. or Bally’s Chicago OpCo at any time, to become a party hereto as a Subsidiary Guarantor hereby unconditionally pursuant to Section 4.11 hereof and irrevocably guarantees, jointly and severally, to each Holder unconditionally guarantee the timely payment and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, or amended or modified, without notice to or further assent from such Subsidiary Guarantor it, and that such Subsidiary Guarantor it will remain bound under this Article 10 upon its guarantee hereunder notwithstanding any such extension or renewal renewal, or amendment or modification, of any Guaranteed Obligationof the Obligations. Each Subsidiary Guarantor waives presentation presentment to, demand ofof payment from, payment from and protest to to, the Company Parent and its subsidiaries of any of the Guaranteed Obligations Obligations, and also waives notice of acceptance of its guarantee and notice of protest for nonpayment. Each Subsidiary Guarantor waives notice further agrees that its guarantee hereunder constitutes a guarantee of payment when due (whether or not any default under bankruptcy or similar proceeding shall have stayed the Notes or the Guaranteed Obligations. The obligations accrual of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification collection of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (eoperated as a discharge thereof) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee merely of collection) , and waives any right to require that any resort be had by any Holder or the Trustee Parent and/or its subsidiaries to any security held for the payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company Obligations or otherwise. Each Subsidiary Guarantor further agrees that, as between it, to any balance of any deposit account or credit on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity books of the Guaranteed Obligations may be accelerated as provided Parent in Article 6 for the purposes favor of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Sectionother person.
Appears in 2 contracts
Sources: Agreement to Provide Future Guarantee (Bally's Chicago, Inc.), Agreement to Provide Future Guarantee (Bally's Chicago, Inc.)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby jointly and severally unconditionally and irrevocably guarantees, jointly guarantees as a primary obligor and severallynot merely as a surety, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest (including interest on overdue principal and interest on overdue interest, to the extent lawful) on the Notes Senior Subordinated Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture (including obligations to the Trustee) and the Notes Senior Subordinated Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for expenses, indemnification or otherwise under this Indenture and the Notes Senior Subordinated Securities (all of the foregoing being hereinafter collectively called the “"Guaranteed Obligations”"). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Subsidiary Guarantor Guarantor, and that each such Subsidiary Guarantor will shall remain bound under this Article 10 XI notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes Senior Subordinated Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes Senior Subordinated Securities or any other agreement or otherwise; (b) any extension or renewal of any thereofGuaranteed Obligations; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Senior Subordinated Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Guarantor; (g) the validity, regularity or enforceability of the Senior Subordinated Securities or this Indenture. The Subsidiary GuarantorGuarantee of each Guarantor is, to the extent and in the manner set forth in Article XII, subordinated and subject in right of payment to the prior payment in full of all Guarantor Senior Debt and is made subject to such provisions of this Indenture. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Senior Subordinated 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 Guaranteed Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in U.S. Legal Tender, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest, premium and liquidated damages, if any, on such Guaranteed Obligations (but only to the extent not prohibited by law) and (iii) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations and all Guarantor Senior Debt as provided in Article XII. Each Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 VI for the purposes of such Subsidiary Guarantor’s any Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this SectionSection 11.01. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ ' fees and expenses) incurred Incurred by the Trustee or any Holder in enforcing any rights under this Section.
Appears in 2 contracts
Sources: Indenture (Cadmus Communications Corp/New), Indenture (Cadmus Communications Corp/New)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesof the Guarantors hereby, jointly and severally, unconditionally guaranties to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the full and punctual payment of principal of and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations interest on the overdue principal of and interest on the Company under this Indenture Notes, if any, if lawful, and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and the Notes thereof; and (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, b) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Each Subsidiary Guarantor waives presentation to, demand of, Failing payment from and protest to the Company when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the Guaranteed Obligations and also waives notice validity, regularity or enforceability of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or this Indenture, the Guaranteed Obligationsabsence 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 a guarantor. The obligations Each Guarantor hereby waives diligence, presentment, demand of each payment, filing of claims with a court in the event of insolvency, or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantor hereunder shall Guarantee will not be affected by: (a) discharged except by complete performance of the failure of obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to assert any claim or demand or return to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 paymentGuarantors, or any part thereofCustodian, of principal of Trustee, liquidator or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of other similar official acting in relation to either the Company or otherwiseGuarantors, any amount paid by either to the Assignee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that they 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 itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of such this Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor the Guarantors for the purposes purpose of this SectionSubsidiary Guarantee. Each 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 Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantees.
Appears in 2 contracts
Sources: Indenture (Amcraft Building Products Co Inc), Indenture (Amcraft Building Products Co Inc)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, severally irrevocably and unconditionally guarantees to each Holder and to the Trustee Trustees and its their respective successors and assigns (ai) the full and punctual payment of principal of and interest on the Notes when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustees) and the Notes, whether for payment of principal of, or interest on in respect of the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (bii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subject to Section 10.10, each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Subsidiary Guarantor, and that each such Subsidiary Guarantor and that such Subsidiary Guarantor will shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. .
(b) Each Subsidiary Guarantor waives presentation to, demand of, of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (ai) the failure of any Holder or the Trustee Trustees to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; , (bii) subject to Section 10.10, any extension or renewal of any thereof; , (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; , (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (eiv) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; Guaranteed Obligations or (fvi) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor.
(c) Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Subsidiary Guarantors, such that such Subsidiary Guarantor’s obligations would be less than the full amount claimed. Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have the assets of the Company first be used and depleted as payment of the Company’s or such Subsidiary Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Subsidiary Guarantor hereunder. Each Subsidiary Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Subsidiary Guarantor.
(d) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee Trustees to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Section 8.1(b), 10.2, 10.6, 10.10, 10.11 and 10.12, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustees to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of any Subsidiary Guarantor as a matter of law or equity.
(f) Subject to Section 10.6, each Subsidiary Guarantor agrees that its Subsidiary Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Subsidiary Guarantor further agrees agrees, subject to Section 10.6, 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee Trustees upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustees have at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustees, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustees an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (iii) all other monetary obligations of the Company to the Holders and the Trustees.
(h) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment or discharge in full of all Guaranteed Obligations other than obligations for fees and expenses. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the TrusteeTrustees, on the other hand, (xi) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s any Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Section 10.1.
(i) Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee Trustees or any Holder in enforcing any rights under this SectionSection 10.1.
(j) Upon request of the Trustees, each Subsidiary Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
Appears in 2 contracts
Sources: Indenture (Open Text Corp), Indenture (Open Text Corp)
Subsidiary Guarantees. Each Subject to the provisions of this Article 11, each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesGuarantor, jointly and severally, hereby unconditionally guarantees to each Holder of a Senior Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, that: (a) the full principal of, and punctual payment of principal of premium, if any, and interest and Liquidated Damages on the Senior Notes shall be duly and punctually paid in full when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, and interest on overdue principal, and premium, if any, and (to the extent permitted by law) interest on any interest, if any, on the Senior Notes and all other monetary obligations of Anvil to the Company Holders or the Trustee hereunder or under this Indenture and the Senior Notes (including fees, expenses or other) shall be promptly paid in full or performed, all in accordance with the terms hereof; and (b) the full and punctual performance within applicable grace periods in case of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension of time of payment or renewal of any Guaranteed Obligation. Each Senior Notes or any of
(a) any right to require the Trustee, the Holders or Anvil (each, a "Benefitted Party") to proceed against Anvil, the Subsidiaries 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 Subsidiary Guarantor waives presentation toGuarantors; (b) any defense that may arise by reason of the incapacity, demand oflack of authority, payment from and protest to the Company death or disability of any other Person or Persons or the failure of a Benefitted Party to file or enforce a claim against the Guaranteed Obligations estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) demand, protest and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default kind (except as expressly required by this Indenture), 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 the Subsidiary Guarantors, Anvil, the Subsidiaries, any Benefitted Party, any creditor of the Subsidiary Guarantors, Anvil or the Subsidiaries or on the part of any other Person whomsoever in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Benefitted Party, including but not limited to an election to proceed against the Subsidiary Guarantors for reimbursement; (e) 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; (f) any defense arising because of a Benefitted Party's election, in any proceeding instituted under the Notes Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 of the Guaranteed ObligationsBankruptcy Code. The obligations of each Subsidiary Guarantor hereunder Guarantors hereby covenant that the Subsidiary Guarantees shall not be affected by: (a) discharged except by payment in full of all principal, premium, if any, and interest on the failure of Senior Notes and all other costs provided for under this Indenture, or as provided in Section 8.1. If any Holder or the Trustee is required by any court or otherwise to assert return to either Anvil, Holdings or the Subsidiary Guarantors, or any claim trustee or demand similar official acting in relation to either Anvil, Holdings or the Subsidiary Guarantors, any amount paid by Anvil, Holdings or the Subsidiary Guarantors to enforce the Trustee or such Holder, the Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each of the Subsidiary Guarantors agrees that it shall not be entitled to any right or remedy against of subrogation in relation to the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal Holders in respect of any thereof; (c) any rescission, waiver, amendment or modification obligations guaranteed hereby until payment in full of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantorall obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders of Senior Notes and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee hereinhereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 66 hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes purpose of this Section. Each the Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantee.
Appears in 2 contracts
Sources: Indenture (Cottontops Inc), Indenture (Anvil Holdings Inc)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, fully and unconditionally guarantees the Notes and obligations of the Company hereunder and thereunder, and guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns Trustee, that: (ai) the full and punctual payment of principal of and premium, if any, and interest on the Notes shall be paid in full when due, whether at maturityStated Maturity, by acceleration, by call for redemption or otherwise, together with interest on the overdue principal, if any, and all other monetary obligations of interest on any overdue interest, to the Company under this Indenture extent lawful, and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company to the Holders or the Trustee under this Indenture and or the Notes shall be paid in full or performed, all in accordance with the terms hereof and thereof; and (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, ii) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationNotes or of any such other obligations, the same shall be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Each of the Subsidiary Guarantees shall be a guarantee of payment and not of collection.
(b) Each Subsidiary Guarantor waives presentation tohereby agrees that its obligations hereunder shall be unconditional, demand ofirrespective of the validity, payment from and protest to regularity or enforceability of the Company 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 Guaranteed Obligations and also waives notice Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of protest for nonpayment. a Guarantor.
(c) Each Subsidiary Guarantor hereby waives notice the benefits of any default under diligence, presentment, demand for payment, filing of claims with a court in the Notes event of insolvency or bankruptcy of the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce Company, any right or remedy to require a proceeding first against the Company or any other Person under Person, protest, notice and all demands whatsoever and covenants that the Subsidiary Guarantee of such Subsidiary Guarantor shall not be discharged as to any Note or this Indenture except by complete performance of the obligations contained in such Note and this Indenture and such Subsidiary Guarantee. Each of the Subsidiary Guarantors hereby agrees that, in the event of a Default in payment of principal or premium, if any, or interest on any Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Notes Subsidiary Guarantors to enforce each such Subsidiary Guarantor’s Subsidiary Guarantee without first proceeding against the Company or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Subsidiary Guarantee herein constitutes a guarantee Guarantor shall pay to the Trustee for the account of paymentthe Holders, performance upon demand therefor, the amount that would otherwise have been due and compliance when payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders and any other amounts due and owing to the Trustee under this Indenture.
(and not a guarantee of collectiond) and waives any right to require that any resort be had by If any Holder or the Trustee is required by any court or otherwise to return to the Company or any security held for payment of the Guaranteed Obligations. 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 paymentGuarantor, or any part thereofcustodian, of principal of trustee, liquidator or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of other similar official acting in relation to the Company or otherwiseany Subsidiary Guarantor, any amount paid by any of them to the Trustee or such Holder, the Subsidiary Guarantee of each of the Subsidiary Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect. This Section 10.1(d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in reliance upon such amount required to be returned. This Section 10.1(d) shall survive the termination of this Indenture.
(e) Each Subsidiary Guarantor further agrees that, as between iteach Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 VI for the purposes of the Subsidiary Guarantee of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6VI, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Subsidiary Guarantor for the purposes purpose of this Section. the Subsidiary Guarantee of such Subsidiary Guarantor.
(f) Each Subsidiary Guarantor also agrees to pay any and that makes a payment for distribution under its Subsidiary Guarantee is entitled upon payment in full of all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights guaranteed obligations under this SectionIndenture to seek contribution from each other Subsidiary Guarantor in a pro rata amount of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment in accordance with GAAP.
Appears in 2 contracts
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesGuarantor, jointly and severally, as primary obligor and not merely as surety, hereby irrevocably, fully and unconditionally Guarantees on a senior subordinated basis to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Notes Securities when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Notes Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes Securities (all the foregoing being obligations hereinafter collectively called the “"Guaranteed Obligations”"). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor Guarantor, and that such Subsidiary Guarantor will shall remain bound under this Article 10 11 notwithstanding any extension or renewal of any such Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (f) except as set forth provided in Section 10.0611.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Each Subsidiary Guarantee is, to the extent and manner set forth in Article 12, subordinated and subject in right of payment to the prior payment in full in cash or cash equivalents of all Senior Indebtedness of the Subsidiary Guarantor giving such Subsidiary Guarantee and each Subsidiary Guarantee is hereby made subject to such provisions of this Indenture. Except as expressly set forth in Sections 8.01(b), 11.02 and 11.06, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, wilful or otherwise, in the performance of the Guaranteed 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 such 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (iii) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations and all obligations to which the Guaranteed Obligations are subordinated as provided in Article 12. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s 's Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations Guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred by the Trustee or any Holder in enforcing any rights under this Section.
Appears in 2 contracts
Sources: Indenture (Denbury Resources Inc), Indenture (Denbury Resources Inc)
Subsidiary Guarantees. Each In the event that a Subsidiary is required to become a Guarantor hereby pursuant to Section 4.11, then such Guarantor shall execute a supplement to this Indenture pursuant to Section 10.02 and upon such execution shall become a party to this Indenture, will have all the rights and be subject to all of the obligations of a Guarantor under this Indenture and agrees to be bound by all of the provisions of this Indenture applicable to a Guarantor, including this Article X and to perform all of the obligations and agreements of a Guarantor under this Indenture. Subject to the provisions of this Article X, each Guarantor fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severallyseverally with any other Guarantor, to each Holder of the Securities and to the Trustee and its successors and assigns (a) Trustee, the full and punctual payment of principal of and interest on the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest (including Special Interest), if any, on the Securities and all other monetary obligations and liabilities of the Company under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the Notes and (bobligations under Section 7.07) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Subsidiary Guarantor agrees that any Guarantor Obligations shall rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to any Guarantor Obligations. Each Guarantor further agrees (to the extent permitted by law) that the Guaranteed any Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor it, and that such Subsidiary Guarantor it will remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation. Each Subsidiary Guarantor waives presentation to, demand of, of payment from and protest to the Company of any of the Guaranteed Guarantor Obligations and also waives notice of protest for nonpaymentnon-payment. Each Subsidiary Guarantor waives notice of any default under the Notes Securities or the Guaranteed any Guarantor Obligations. The 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 Holder to any security held for payment of any Guarantor Obligations. Except as set forth in Section 10.02, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of any Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of any Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by: 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 person under, this Indenture, the Notes Securities or any other agreement or otherwise; (b) any extension or renewal of any thereofgranted; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed any Guarantor Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the ObligationsGuarantor; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary the Company; (g) any default, failure or delay, willful or otherwise, in the performance of any Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due Obligations; or (and not a guarantee of collectionh) and waives any right other act or thing or omission or delay to require that do any resort be had by other act or thing which may or might in any Holder manner or the Trustee to any security held for payment extent vary the risk of the Guaranteed Obligations. Each Subsidiary any Guarantor further agrees that its Subsidiary Guarantee herein shall continue to be effective or be reinstated, would otherwise operate as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes a discharge of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction Guarantor as a matter of law or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Sectionequity.
Appears in 2 contracts
Sources: Indenture (National CineMedia, LLC), Indenture (National CineMedia, Inc.)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesGuarantor, jointly and severally, as primary obligor and not merely as surety, hereby irrevocably, fully and unconditionally Guarantees on a senior basis to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Notes Securities when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Notes Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes Securities (all the foregoing being obligations hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor Guarantor, and that such Subsidiary Guarantor will shall remain bound under this Article 10 notwithstanding any extension or renewal of any such Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (f) except as set forth provided in Section 10.0610.6, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Sections 8.01, 10.2 and 10.6, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the 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 Guaranteed 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 such 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (iii) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations Guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder in enforcing any rights under this Section.
Appears in 2 contracts
Sources: Indenture (ExOne KK), Indenture (MWT - Gesellschaft Fur Industrielle Mikrowellentechnik mbH)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteeshereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and to delivered by the Trustee and its successors and assigns that: (ai) the full and punctual payment of principal of of, premium, if any, and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, to the extent lawful, and all other monetary obligations Obligations of the Company to the Holders or the Trustee under this Indenture and the Notes will be promptly paid in full, all in accordance with the terms of this Indenture and the Notes; and (bii) in case of any extension of time of payment of any Notes or any of such other Obligations, that the Notes will be promptly paid in full and punctual performance within applicable grace periods when due in accordance with the terms of all other obligations of such extension or renewal, whether at Stated Maturity, by acceleration or otherwise. In the event that the Company fails to pay any amount guaranteed by the Subsidiary Guarantors for any reason whatsoever, the Subsidiary Guarantors will be jointly and severally obligated to pay such amount immediately. The Subsidiary Guarantors hereby further agree that their Obligations under this Indenture and the Notes (all shall be unconditional, regardless of the foregoing being hereinafter collectively called validity, regularity or enforceability of this Indenture or the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that Notes, the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal absence of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation action to enforce this Indenture or the Notes, any waiver or consent by any Holder with respect to any provisions of this Indenture or the Notes, any modification or amendment of, or supplement to, demand ofthis Indenture or the Notes, payment from and protest to the Company recovery of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy judgment against the Company or any other Person under this Indentureaction to enforce any such judgment, the Notes or any other agreement circumstance that might otherwise constitute a legal or otherwise; (b) any extension equitable discharge or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further agrees hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee herein constitutes a guarantee of payment, the Company’s Obligations under this Indenture and the Notes will not be discharged except by complete performance and compliance when due (and not a guarantee by the Company or another Guarantor of collection) and waives any right to require that any resort be had by such Obligations. If any Holder or the Trustee is required by any court or otherwise to return to the Company, any security held for payment Subsidiary Guarantor or a Custodian of the Guaranteed ObligationsCompany or a Subsidiary Guarantor any amount paid by the Company or any Subsidiary Guarantor to the Trustee or such Holder, the Subsidiary Guarantee of the Company’s Obligations under this Indenture and the Notes by each Subsidiary Guarantor shall, to the extent previously discharged as a result of any such payment, be immediately reinstated and be in full force and effect. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further hereby acknowledges and agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Company’s Obligations under this Indenture and the Notes may be accelerated as provided in Article 6 VI for the purposes of such the Subsidiary Guarantor’s Subsidiary Guarantee herein, Guarantees notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsacceleration, and (y) in the event of any declaration of acceleration of such Guaranteed the Company’s Obligations under this Indenture and the Notes as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of the Subsidiary Guarantees.
(b) Each Subsidiary Guarantor hereby waives all rights of subrogation, contribution, reimbursement and indemnity, and all other rights, that such Subsidiary Guarantor for would have against the purposes Company at any time as a result of this Section. any payment in respect of its Subsidiary Guarantee (whether contractual, under Section 509 of the Bankruptcy Code, or otherwise).
(c) Each Subsidiary Guarantor also that makes or is required to make any payment in respect of its Subsidiary Guarantee shall be entitled to seek contribution from the other Subsidiary Guarantors to the extent permitted by applicable law; provided that each Subsidiary Guarantor agrees that any such claim for contribution that such Subsidiary Guarantor may have against any other Subsidiary Guarantor shall be subrogated to the prior payment in full in cash of all Obligations owed to Holders under or in respect of the Notes.
(d) Upon the sale or disposition (whether by merger, stock purchase or issuance of Capital Stock, asset transfer or otherwise) of a Subsidiary Guarantor (or all or substantially all of its assets) to a Person which is not the Company or a Subsidiary of the Company, or upon the liquidation, dissolution or winding up of such Subsidiary Guarantor, which is otherwise in compliance with this Indenture, such Subsidiary Guarantor shall be deemed released from all its obligations under its Subsidiary Guarantee.
(e) Upon the designation of a Subsidiary Guarantor as an Unrestricted Subsidiary in accordance with the provisions of this Indenture or upon such Subsidiary Guarantor ceasing to be a guarantor or obligor under the Senior Credit Facilities (other than a release as a result of the repayment in full of the Indebtedness under the Senior Credit Facilities), such Subsidiary Guarantor shall be deemed released from all its obligations under its Subsidiary Guarantee.
(f) Each Subsidiary Guarantor may consolidate with or merge into or sell its assets to the Company or another Subsidiary Guarantor without limitation. A Subsidiary Guarantor may consolidate with or merge into or sell its assets to a corporation other than the Company or another Subsidiary Guarantor (whether or not affiliated with such Subsidiary Guarantor, but subject to the provisions described in Section 11.01(d)), provided that (a) if the Surviving Person is not the Subsidiary Guarantor, the Surviving Person agrees to pay any assume such Subsidiary Guarantor’s obligations under its Subsidiary Guarantee and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights its obligations under this SectionIndenture and (b) such transaction does not (i) violate any covenants set forth in this Indenture or (ii) result in a Default or Event of Default under this Indenture immediately thereafter that is continuing.
(g) The Subsidiary Guarantee of each Subsidiary Guarantor will be automatically and unconditionally released in connection with a Legal Defeasance or Covenant Defeasance of this Indenture or upon satisfaction and discharge of this Indenture.
Appears in 2 contracts
Sources: Indenture (Gray Television Inc), Indenture (Gray Television Inc)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesSubject to this Article 11, each of the Guarantors hereby, jointly and severally, 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 (a) the full and punctual payment of principal of and interest on the Notes when dueassigns, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations irrespective of the Company under this Indenture validity and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions enforceability of this Indenture, the Notes held thereby and the Obligations of the Issuers hereunder and thereunder, that: (a) the principal of and premium and interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise, and interest on the overdue principal of, interest on, and premium (to the extent permitted by law), if any, on the Notes, and all other payment Obligations of the Issuers to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise. Failing payment when so due of any amount so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Issuers. 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 an Issuer, any action to enforce the same or any other agreement; circumstance (dother than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor further, to the release extent permitted by law, hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of an Issuer, any security held right to require a proceeding first against an Issuer, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee will not be discharged except by complete performance of the Obligations contained in the Notes and this Indenture. If any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had is required by any Holder court or otherwise to return to an Issuer, the Trustee to any security held for payment of the Guaranteed Obligations. 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 paymentGuarantors, or any part thereofCustodian, Trustee or other similar official acting in relation to any of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder the Issuers or the Guarantors, any amount paid by an Issuer or any Guarantor to the Trustee upon or such Holder, the bankruptcy or reorganization of Subsidiary Guarantees, to the Company or otherwiseextent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to, and hereby waives, any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby. Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 7 hereof for the purposes of such its Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed thereby, and (yb) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 67 hereof, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary the Guarantor for the purposes purpose of this Sectionits Subsidiary Guarantee. Each 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 Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantees.
Appears in 2 contracts
Sources: Third Supplemental Indenture (Access Midstream Partners Lp), First Supplemental Indenture (Access Midstream Partners Lp)
Subsidiary Guarantees. Each (a) The Notes shall be guaranteed by each of the Guarantors (each such guarantee, a “Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesGuarantee”) in accordance with the provisions of this Article IX.
(b) Subject to this Article IX, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of the Notes or the obligations of the Company under the Indenture or the Notes: (i) that the principal of, and to interest on, the Trustee Notes will be promptly paid in full when due, whether at the Maturity Date, the Redemption Date, the Fundamental Change Repurchase Date or other due date, and its successors and assigns (a) interest on the full and punctual payment of overdue principal of and interest on the Notes when dueNotes, whether at maturityif any, by acceleration, by redemption or otherwiseif lawful, and all other monetary obligations of the Company under this Indenture and the Notes and (b) the full and punctual performance within applicable grace periods of that all other obligations of the Company under this Indenture to the Holders or the Trustee hereunder will be promptly paid in full or performed, all in accordance with the terms of the Indenture; and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, ii) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any of such other agreement obligations, that the same will be promptly paid in full when due or otherwise; (b) any performed in accordance with the terms of the extension or renewal renewal, whether at the Maturity Date, the Redemption Date, the Fundamental Change Repurchase Date or other due date. Failing payment when due of any thereof; (c) amount so guaranteed or any rescission, waiver, amendment or modification of any of the terms or provisions of this Indentureperformance so guaranteed for whatever reason, the Notes or any other agreement; (d) Guarantors shall be jointly and severally obligated to pay the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantorsame immediately. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes this is a guarantee of payment, performance and compliance when due (payment and not a guarantee of collection.
(c) Subject to this Article IX, the Guarantors hereby, jointly and severally, 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 of the Notes with respect to any provisions of the Indenture or of the Notes, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that any resort its Subsidiary Guarantee shall not be had discharged except by complete performance of the obligations contained in the Indenture and the Notes.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the Company, any security held for payment Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors any amount paid by any of the Guaranteed Obligations. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall continue foregoing to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any such Holder or the Trustee upon Trustee, then each Subsidiary Guarantee, to the bankruptcy or reorganization extent theretofore discharged, shall be reinstated in full force and effect.
(e) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Company or otherwiseHolders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 VI for the purposes of such the Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, obligations guaranteed hereby; and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6VI, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor the Guarantors for the purpose of the Subsidiary Guarantees. 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 Guarantees. Notwithstanding anything to the contrary in the Indenture or the Notes, references in the Indenture or the Notes to Section 12.02 of the Base Indenture shall, for purposes of the Notes, be read as references to this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionSection 9.01.
Appears in 2 contracts
Sources: Eighth Supplemental Indenture (Omnicare Inc), Seventh Supplemental Indenture (Omnicare Inc)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesSubject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees, on a senior secured basis, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Notes when dueassigns, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations irrespective of the Company under this Indenture validity and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions enforceability of this Indenture, the Notes held thereby and the Obligations of the Issuers hereunder and thereunder, that: (a) the principal of and premium, if any, and interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise, and interest on the overdue principal of and premium and (to the extent permitted by law) interest on the Notes, and all other payment Obligations of the Issuers to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise. Failing payment when so due of any amount so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Issuers. 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 an Issuer, any action to enforce the same or any other agreement; circumstance (dother than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor further, to the release extent permitted by law, hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of an Issuer, any security held right to require a proceeding first against an Issuer, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee will not be discharged except by complete performance of the Obligations contained in the Notes and this Indenture. If any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had is required by any Holder court or otherwise to return to an Issuer, the Trustee to any security held for payment of the Guaranteed Obligations. 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 paymentGuarantors, or any part thereofCustodian, Trustee or other similar official acting in relation to any of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder the Issuers or the Guarantors, any amount paid by an Issuer or any Guarantor to the Trustee upon or such Holder, the bankruptcy or reorganization of Subsidiary Guarantees, to the Company or otherwiseextent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to, and hereby waives, any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby. Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of such its Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed thereby, and (yb) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 66 hereof, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary the Guarantor for the purposes purpose of this Sectionits Subsidiary Guarantee. Each 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 Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantees.
Appears in 2 contracts
Sources: Indenture (Martin Midstream Partners L.P.), Indenture (Martin Midstream Partners L.P.)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, severally irrevocably and unconditionally guarantees to each Holder and to the Trustee and its successors and assigns (ai) the full and punctual payment of principal of and interest on the Notes when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, or interest on in respect of the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (bii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Subsidiary Guarantor, and that each such Subsidiary Guarantor and that such Subsidiary Guarantor will shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. .
(b) Each Subsidiary Guarantor waives presentation to, demand of, of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; , (bii) any extension or renewal of any thereof; , (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; , (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (eiv) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; Guaranteed Obligations or (fvi) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor.
(c) Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Subsidiary Guarantors, such that such Subsidiary Guarantor’s obligations would be less than the full amount claimed. Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have the assets of the Company first be used and depleted as payment of the Company’s or such Subsidiary Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Subsidiary Guarantor hereunder. Each Subsidiary Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Subsidiary Guarantor.
(d) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Section 8.1(b), 10.2 and 10.6, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of any Subsidiary Guarantor as a matter of law or equity.
(f) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (iii) all other monetary obligations of the Company to the Holders and the Trustee.
(h) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and Subsidiary
(yi) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionSection 10.1.
(j) Upon request of the Trustee, each Subsidiary Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
Appears in 2 contracts
Sources: Indenture (MSCI Inc.), Indenture (MSCI Inc.)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) Subject to subsection (c) below, the full and punctual payment Borrower shall cause all of principal of and interest on the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations its Restricted Subsidiaries existing as of the Company under this Indenture Closing Date to execute and deliver a Subsidiary Guarantee and a counterpart Contribution Agreement in substantially the Notes same form as set forth, respectively, in Exhibits "L" and "M", on or before April 21, 1997. The delivery of such documents shall be accompanied by such other documents as the Agent may reasonably request (e.g., certificates of incorporation, articles of incorporation and bylaws, membership operating agreements, opinion letters and appropriate resolutions of the Board of Directors of any such Subsidiary Guarantor).
(b) Subject to subsection (c) below, the Borrower shall cause all of its Restricted Subsidiaries not existing as of the Closing Date to execute and deliver Subsidiary Guarantees and a counterpart Contribution Agreement in substantially the same form as set forth, respectively, in Exhibits "L" and "M", within thirty (30) days of the creation or acquisition of any such Restricted Subsidiary by the Borrower or other Restricted Subsidiary. The delivery of such documents shall be accompanied by such other documents as the Agent may reasonably request (e.g., certificates of incorporation, articles of incorporation and bylaws, membership operating agreements, opinion letters and appropriate resolutions of the Board of Directors of any such Subsidiary Guarantor).
(c) Notwithstanding the foregoing subsections (a) and (b), the Borrower shall not be required to cause any Restricted Subsidiary to deliver a Subsidiary Guarantee and a counterpart Contribution Agreement if (i) such Restricted Subsidiary is incorporated under any jurisdiction outside of the United States of America (or any of its territories); (ii) the full and punctual performance within applicable grace periods delivery of all other obligations such documents would cause such Restricted Subsidiary to violate any Requirement of Law; or (iii) the delivery of such documents would result in any Rating Agency downgrading the rating of the Company under this Indenture and Borrower.
(d) In the Notes (all event that the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Borrower or any Restricted Subsidiary sells any Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewedas permitted by Section 8.4 hereof, in whole or in part, without notice or further assent from then such Subsidiary Guarantor shall be released from all obligations under the Subsidiary Guarantee and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest Contribution Agreement which it had previously delivered to the Company of any Agent. Such release shall occur upon the consummation of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, sale and the Holders Agent shall execute and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding deliver any stay, injunction releases or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred documents reasonably requested by the Trustee or any Holder in enforcing any rights under this SectionBorrower to effectuate such release.
Appears in 2 contracts
Sources: Credit Agreement (Rock Tenn Co), Credit Agreement (Rock Tenn Co)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesSubject to this Article 10, each of the Guarantors hereby, jointly and severally, 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 (a) the full and punctual payment of principal of and interest on the Notes when dueassigns, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations irrespective of the Company under this Indenture validity and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions enforceability of this Indenture, the Notes held thereby and the Obligations of the Issuers hereunder and thereunder, that: (a) the principal of, and interest, premium and Additional Interest, if any, on, the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise, and interest on the overdue principal of, premium, and (to the extent permitted by law) interest and Additional Interest, if any, on, the Notes, and all other payment Obligations of the Issuers to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise. Failing payment when so due of any amount so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Issuers. 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 an Issuer, any action to enforce the same or any other agreement; circumstance (dother than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor further, to the release extent permitted by law, hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of an Issuer, any security held right to require a proceeding first against an Issuer, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee will not be discharged except by complete performance of the Obligations contained in the Notes and this Indenture. If any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had is required by any Holder court or otherwise to return to an Issuer, the Trustee to any security held for payment of the Guaranteed Obligations. 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 paymentGuarantors, or any part thereofCustodian, Trustee or other similar official acting in relation to any of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder the Issuers or the Guarantors, any amount paid by an Issuer or any Guarantor to the Trustee upon or such Holder, the bankruptcy or reorganization of Subsidiary Guarantees, to the Company or otherwiseextent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to, and hereby waives, any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby. Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of such its Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed thereby, and (yb) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 66 hereof, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary the Guarantor for the purposes purpose of this Sectionits Subsidiary Guarantee. Each 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 Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantees.
Appears in 2 contracts
Sources: Indenture (Linn Energy, LLC), Indenture (Linn Energy, LLC)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesSubject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of this First Supplemental Indenture or the Indenture, the Notes held thereby and the Obligations of the Company hereunder and thereunder, that: (a) the full and punctual payment of principal of and premium, if any, and interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturityStated Maturity, by acceleration, by upon repurchase or redemption or otherwise, and interest on the overdue principal of and premium, if any, and (to the extent permitted by law) interest on the Notes, and all other monetary obligations payment Obligations of the Company under this Indenture to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the Notes terms hereof and thereof; and (b) the full and punctual performance within applicable grace periods in case of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise. Each Subsidiary Guarantor waives presentation toFailing payment when so due of any amount so guaranteed for whatever reason, demand of, payment from the Guarantors will be jointly and protest severally obligated to pay the same immediately. An Event of Default with respect to the Company Notes under the Indenture shall constitute an event of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this First Supplemental Indenture or the Guaranteed ObligationsIndenture, 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 a Guarantor. The obligations Each Guarantor further, to the extent permitted by law, hereby waives diligence, presentment, demand of each payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantor hereunder shall Guarantee will not be affected by: (a) discharged except by complete performance of the failure of Obligations contained in the Notes and the Indenture. If any Holder or the Trustee is required by any court or otherwise to assert return to the Company, the Guarantors, or any claim Custodian, Trustee or demand other similar official acting in relation to either the Company or to enforce the Guarantors, any right or remedy against amount paid by the Company or any other Person under this IndentureGuarantor to the Trustee or such Holder, the Notes or Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to, and hereby waives, any other agreement or otherwise; (b) any extension or renewal right of subrogation in relation to the Holders in respect of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantorguaranteed hereby. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 Five of the Original Indenture for the purposes of such its Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed thereby, and (yb) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6Five of the Original Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary the Guarantor for the purposes purpose of this Sectionits Subsidiary Guarantee. Each 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 Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantees.
Appears in 2 contracts
Sources: First Supplemental Indenture (Whiting Petroleum Corp), First Supplemental Indenture (Whiting Petroleum Corp)
Subsidiary Guarantees. Each Subject to Article XI, each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of the principal of of, and premium, if any, and interest on the Notes Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Notes Securities, and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes Securities (all the foregoing being hereinafter collectively called the “Guaranteed "Obligations”"). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor Guarantor, and that such Subsidiary Guarantor will remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subject to Article XI, each Subsidiary Guarantor waives notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee Guaranty herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Obligations. Each Subsidiary Guaranty is, to the extent and in the manner set forth in Article XI, subordinated and subject in right of payment to the prior payment in full of all Designated Senior Debt of the Subsidiary Guarantor giving such Subsidiary Guaranty and is made subject to such provisions of this Indenture. Except as expressly set forth in Sections 4.06, 5.02 and 8.01(b), the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed ObligationsObligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay 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 such Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity, except for any gross negligence, wilful misconduct or bad faith by such Holder or the Trustee. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee Guaranty herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium, if any, or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right that any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, and subject in all instances to Article XI hereof, upon the failure of the Company to pay the principal of or premium, if any, or interest on any Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Obligation, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid amount of such Obligations, (ii) accrued and unpaid premium, if any, and interest on such Obligations (but only to the extent not prohibited by law), and (iii) all other monetary Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Obligations guaranteed hereby until payment in full in cash of all Obligations and all obligations to which the Obligations are subordinated as provided in Article XI. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 VI for the purposes of such Subsidiary Guarantor’s 's Subsidiary Guarantee Guaranty herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall shall, subject to Article XI hereof, forthwith become due and payable by such Subsidiary Guarantor for the purposes of this SectionSection 10.01. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred by the Trustee or any Holder in enforcing any rights under this SectionSection 10.01.
Appears in 2 contracts
Sources: Indenture (Alamosa Delaware Inc), Indenture (Alamosa Holdings Inc)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby jointly and severally unconditionally and irrevocably guarantees, jointly and severally, guarantees (the "SUBSIDIARY GUARANTEES") to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company Issuers under this Indenture (including obligations to the Trustee) and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuers under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”"NOTE OBLIGATIONS"). Each Subsidiary Guarantor further agrees that the Guaranteed Note Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Subsidiary Guarantor, and that each such Subsidiary Guarantor and that such Subsidiary Guarantor will shall remain bound under this Article 10 XII notwithstanding any extension or renewal of any Guaranteed Note Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company Issuers of any of the Guaranteed Note Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Note Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: 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 Issuers or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security Note held by any Holder or the Trustee for the Guaranteed Note Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Note Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor, except as provided in Section 12.2(b) hereof. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security Note held for payment of the Guaranteed Note Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Note Obligation or otherwise. Without -84- limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Note or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of any 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 Guaranteed Note Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of either of the Company Issuers 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 any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay the principal of or interest on any Note Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Note Obligation, each Subsidiary Guarantor hereby promises to and shall forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Note Obligations, (ii) accrued and unpaid interest on such Note Obligations (but only to the extent not prohibited by law) and (iii) all other monetary Note Obligations of the Issuers to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Note Obligations guaranteed hereby until payment in full of all Note Obligations. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Note Obligations guaranteed hereby may be accelerated as provided in Article 6 VII hereof for the purposes of such any Subsidiary Guarantor’s 's Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsNote Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6VII hereof, such Guaranteed Note Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ ' fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section.
Appears in 2 contracts
Sources: Indenture (Eott Energy Finance Corp), Indenture (Eott Energy Finance Corp)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesSubject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantee, 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 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 full and punctual payment of principal of and premium, interest and Additional Interest, if any, on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration, by redemption or otherwise, and interest on the overdue principal of and premium, (to the extent permitted by law) interest and Additional Interest, if any, on the Notes, and all other monetary obligations payment Obligations of the Company under this Indenture to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the Notes terms hereof and thereof; and (b) the full and punctual performance within applicable grace periods in case of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration, redemption or otherwise. Each Subsidiary Guarantor waives presentation to, demand of, Failing payment from and protest to the Company when so due of any amount so guaranteed or any performance so guaranteed for whatever reason the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Guaranteed Obligations and also waives notice Notes shall constitute an event of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the Guaranteed Obligationsabsence 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 a Guarantor. The obligations Each Guarantor further, to the extent permitted by law, hereby waives diligence, presentment, demand of each payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantor hereunder shall Guarantee will not be affected by: (a) discharged except by complete performance of the failure of Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to assert return to the Company, the Guarantors, or any claim Custodian, Trustee or demand other similar official acting in relation to either the Company or to enforce the Guarantors, any right or remedy against amount paid by the Company or any other Person under this IndentureGuarantor to the Trustee or such Holder, the Notes or Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to, and hereby waives, any other agreement or otherwise; (b) any extension or renewal right of subrogation in relation to the Holders in respect of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantorguaranteed hereby. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of such its Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed thereby, and (yb) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 66 hereof, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary the Guarantor for the purposes purpose of this Sectionits Subsidiary Guarantee. Each 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 Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantees.
Appears in 2 contracts
Sources: Indenture (Bristow Group Inc), Indenture (Medic Systems Inc)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesSubject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Senior Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of this Indenture, the Senior Notes or the obligations of the Company hereunder or thereunder, that: (a) the full and punctual payment of principal of and interest on the Senior Notes will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations interest on the overdue principal of and interest on the Company under this Indenture Senior Notes, if any, if lawful, and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and the Notes thereof; and (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, b) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationSenior Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the 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 of the Senior 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 guarantor. Each Subsidiary Guarantor hereby waives presentation todiligence, presentment, demand ofof payment, payment from and protest to filing of claims with a court in the Company event of any insolvency or bankruptcy of the Guaranteed Obligations Company, any right to require a proceeding first against the Company, protest, notice and also waives notice of protest for nonpayment. Each all demands whatsoever and covenant that this Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder Guarantee shall not be affected by: (a) discharged except by complete performance of the failure of obligations contained in the Senior Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to assert return to the Company, the Guarantors or any claim custodian, Trustee, liquidator or demand or other similar official acting in relation to enforce any right or remedy against either the Company or the Guarantors, any other Person under amount paid by either to the Trustee or such Holder, this IndentureSubsidiary Guarantee, to the Notes or extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any other agreement or otherwise; (b) any extension or renewal right of subrogation in relation to the Holders in respect of any thereof; (c) any rescission, waiver, amendment or modification obligations guaranteed hereby until payment in full of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantorall obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of such this Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 66 hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor the Guarantors for the purposes purpose of this SectionSubsidiary Guarantee. Each Subsidiary The Guarantors shall have the right to seek contribution from any non-paying Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by so long as the Trustee or any Holder in enforcing any exercise of such right does not impair the rights of the Holders under this Sectionthe Guarantee.
Appears in 2 contracts
Sources: Indenture (Varsity Spirit Corporation), Indenture (Riddell Sports Inc)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteeshereby, jointly and severally, guarantees to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of of, premium (if any) and interest on the Notes Securities when due, whether at maturityStated Maturity, by accelerationor upon redemption, by redemption required repurchase pursuant to Section 4.07 or Section 4.12 hereof, acceleration or otherwise, and all other monetary obligations of owing by the Company under this Supplemental Indenture (including obligations owing to the Trustee) and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes Securities (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor The Guarantors further agrees agree that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor the Guarantors, and that such Subsidiary Guarantor the Guarantors will remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives .
(b) The Guarantors waive presentation to, demand of, of payment from and protest to the Company of any of the Guaranteed Obligations and also waives waive notice of protest for nonpayment. Each Subsidiary Guarantor waives The Guarantors waive notice of any default Default under the Notes Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor the Guarantors hereunder shall not be affected by: (a1) 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 Supplemental Indenture, the Notes Securities or any other agreement or otherwise; (b2) any extension or renewal of any thereofGuaranteed Obligation; (c3) any rescission, waiver, amendment amendment, modification or modification supplement of any of the terms or provisions of this IndentureSupplemental Indenture (other than this Article X), the Notes Securities or any other agreement; (d4) the release of any security security, if any, held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e5) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (f6) except as set forth in Section 10.06, any change in the ownership of such the Company; or (vii) 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 Guarantors or would otherwise operate as a discharge of the Guarantors as a matter of law or equity, except for payment of the Securities in full.
(c) The Guarantors, jointly and severally, further agree that their Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee Guarantees herein constitutes constitute a guarantee of payment, performance and compliance payment when due (and not a guarantee of collection) and waives waive any right to require that any resort be had by any Holder or the Trustee to any security security, if any, held for payment of the Guaranteed Obligations. Each .
(d) The obligations of the Guarantors hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (except to the extent provided in Section 10.02 hereof), 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.
(e) The Guarantors, jointly and severally, further agree that their Subsidiary Guarantor further agrees that its Subsidiary Guarantee Guarantees herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees .
(f) 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 Guarantors by virtue hereof, upon the failure of the Company to pay any Guaranteed Obligation when and as the same shall become due, whether at Stated Maturity, upon redemption, required repurchase, acceleration or otherwise, the Guarantors hereby promise to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations and (ii) accrued and unpaid interest on such Guaranteed Obligation (but only to the extent not prohibited by law).
(g) The Guarantors, jointly and severally, agree that, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 VI for the purposes of such Subsidiary Guarantor’s the Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor the Guarantors for the purposes of this Section. Each Subsidiary Guarantor Section 10.01.
(h) The Guarantors, jointly and severally, also agrees agree to pay any and all costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder in enforcing any rights under this SectionSection 10.01.
Appears in 1 contract
Sources: First Supplemental Indenture (Key Energy Services Inc)
Subsidiary Guarantees. Each (a) The Subsidiary Guarantor Guarantors and each Subsidiary of the Company that in accordance with Section 10.02 hereof is required to guarantee the obligations of the Company under the Notes and this Indenture hereby jointly and severally and unconditionally and irrevocably guarantees, jointly and severallyon a senior basis (each such guarantee being a "Subsidiary Guarantee"), to each Holder of a Note authenticated and to delivered by the Trustee and its successors and assigns (a) irrespective of the full and punctual payment validity or enforceability of principal of and interest on this Indenture, the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary the obligations of the Company under this Indenture or the Notes, that: (i) the principal of, premium, if any, and interest on the Notes shall be paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, call for redemption or otherwise, and interest on the overdue principal and interest, if any, of the Notes and all other obligations of the Company to the Holders or the Trustee under this Indenture or the Notes shall be promptly paid in full or performed, all in accordance with the terms of this Indenture and the Notes; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, they shall be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed for whatever reason, each Subsidiary Guarantor shall be obligated to pay the same whether or not such failure to pay has become an Event of Default that could cause acceleration pursuant to Section 6.02 hereof. Each Subsidiary Guarantor agrees that this is a guarantee of payment not a guarantee of collection.
(b) Each Subsidiary Guarantor hereby agrees that its obligations with regard to its Subsidiary Guarantee shall be unconditional, irrespective of the full and punctual performance within applicable grace periods validity or enforceability of all 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 and or the Notes Notes, any action to enforce the same or any other circumstances (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”)other than complete performance) that might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. Each Subsidiary Guarantor further further, to the extent permitted by law, waives and relinquishes all claims, rights and remedies accorded by applicable law to guarantors and agrees that the Guaranteed Obligations may be extended not to assert or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal take advantage of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation such claims, rights or remedies, including but not limited to: (i) any right to require the Trustee, demand of, payment from and protest to the Holders or the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (aeach, a "Benefitted Party") the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy proceed against the Company or any other Person under this Indenture, the Notes or any other agreement to proceed against or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of exhaust any security held by a Benefitted Party at any Holder time or to pursue any other remedy in any Benefitted Party's power before proceeding against such Subsidiary Guarantor; (ii) the defense of the statute of limitations in any action hereunder or in any action for the collection of any Indebtedness or the Trustee for the Guaranteed Obligations or performance of any of themobligation hereby guaranteed; (eiii) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or the failure of any Holder a Benefitted Party to file or enforce a claim against the Trustee to exercise any right estate (in administration, bankruptcy or remedy against any other guarantor proceeding) of any other Person; (iv) demand, protest and notice of any kind including but not limited to notice of the Obligations; existence, creation or (f) except as set forth in Section 10.06, incurring of any change in new or additional Indebtedness or obligation or of any action or non-action on the ownership part of such Subsidiary Guarantor. Each , the Company, any Benefitted Party, any creditor of such Subsidiary Guarantor, the Company or on the part of any other Person whomsoever in connection with any Indebtedness or Obligations hereby guaranteed; (v) any defense based upon an election of remedies by a Benefitted Party, including but not limited to an election to proceed against such Subsidiary Guarantor further agrees for reimbursement; (vi) any defense based upon any statute or rule of law that its Subsidiary Guarantee herein constitutes provides that the obligation of a guarantee surety must be neither larger in amount nor in other respects more burdensome than that of paymentthe principal; (vii) any defense arising because of a Benefitted Party's election, performance and compliance when due in any proceeding instituted under any Bankruptcy Law, of the application of Section 1111(b)(2) under the Bankruptcy Law; (and not viii) any defense based on any borrowing or grant of a guarantee of collectionsecurity interest under Section 364 under the Bankruptcy Law; or (ix) and waives any right to require that any resort be had by any Holder or a proceeding first against the Trustee to any security held for payment of the Guaranteed ObligationsCompany, protest, notice and all demands whatsoever. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section.
Appears in 1 contract
Sources: Indenture (Parker Drilling Co /De/)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby jointly and severally irrevocably and unconditionally and irrevocably guarantees, jointly as a primary obligor and severallynot merely as a surety, to each Holder and to the Trustee and its successors and assigns (ai) the full and punctual payment of principal of and interest on the Notes when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, or premium or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (bii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Subsidiary Guarantor, and that each such Subsidiary Guarantor and that such Subsidiary Guarantor will shall remain bound under this Article 10 4 notwithstanding any extension or renewal of any Guaranteed Obligation. .
(b) Each Subsidiary Guarantor waives presentation to, demand of, of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default Default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (bii) any extension or renewal of any thereof; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (div) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (ev) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (fvi) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor, except as provided in Section 4.02(b) of the Second Supplemental Indenture.
(c) Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Subsidiary Guarantors, such that such Subsidiary Guarantor’s obligations would be less than the full amount claimed. Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have the assets of the Company first be used and depleted as payment of the Company’s or such Subsidiary Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Subsidiary Guarantor hereunder. Each Subsidiary Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Subsidiary Guarantor.
(d) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) The Subsidiary Guarantee of each Subsidiary Guarantor is, to the extent and in the manner set forth in Article 5 of the Second Supplemental Indenture, subordinated and subject in right of payment to the prior payment in full of the principal of and premium, if any, and interest on all Senior Indebtedness of the relevant Subsidiary Guarantor and is made subject to such provisions of this Indenture.
(f) Except as expressly set forth in Section 10.01(b) of the Indenture and Sections 4.02 and 4.06 of the Second Supplemental Indenture, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of any Subsidiary Guarantor as a matter of law or equity.
(g) Except as otherwise provided herein, each Subsidiary Guarantor agrees that its Subsidiary Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(h) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (iii) all other monetary obligations of the Company to the Holders and the Trustee.
(i) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations and all obligations to which the Guaranteed Obligations are subordinated as provided in Article 5 of the Second Supplemental Indenture. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 5 of the Indenture for the purposes of such Subsidiary Guarantor’s any Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 65 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Section 4.01.
(j) Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ attorney’s fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionSection 4.01.
(k) Upon request of the Trustee, each Subsidiary Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
Appears in 1 contract
Sources: Second Supplemental Indenture (Alliant Techsystems Inc)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) Each Restricted Subsidiary shall, and, if the full Issuers or any of their Restricted Subsidiaries shall acquire or create another Subsidiary after the date of the Indenture, then such Restricted Subsidiary or such newly acquired or created Subsidiary shall execute a Guarantee in substantially the form of Exhibit E attached hereto and punctual deliver an opinion of counsel relating to the enforceability and authorization of such Guarantee in accordance with the terms of the Indenture, pursuant to which such Subsidiary shall become a Guarantor, on a senior basis, of the Issuers’ payment of principal of and interest on obligations under the Notes when dueand the Indenture; provided, whether at maturitythat this Section 4.15 shall not apply to any Subsidiary during such period as such Subsidiary (i) is incorporated in any jurisdiction outside the United States, (ii) has been properly designated as an Unrestricted Subsidiary in accordance with the Indenture for so long as it continues to constitute an Unrestricted Subsidiary, (iii) has Adjusted Net Assets of less than $3.0 million or (iv) has less than $5.0 million of outstanding Indebtedness owed to any Person other than the Issuers or any Restricted Subsidiary.
(b) In the event of a sale or other disposition of all of the assets of any Guarantor, by accelerationway of merger, by redemption consolidation or otherwise, and or a sale or other disposition of all other monetary obligations of the Company under this Indenture and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal capital stock of any Guaranteed Obligation. Each Subsidiary Guarantor, then such Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (y) in the event of any declaration of acceleration a sale or other disposition, by way of such Guaranteed Obligations as provided a merger, consolidation or otherwise, of all of the capital stock of such Guarantor) or the corporation acquiring the property (in Article 6, the event of a sale or other disposition of all of the assets of such Guaranteed Obligations (whether or not due and payableGuarantor) shall forthwith become due be released and payable by relieved of any obligations under its Subsidiary Guarantee; provided that the Net Proceeds of such Subsidiary sale or other disposition are applied in accordance with the provisions of Section 4.14 hereof. In addition, in the event the Management Committee designates a Guarantor for to be an Unrestricted Subsidiary, then such Guarantor shall be released and relieved of any obligations under its Guarantee; provided that such designation is conducted in accordance with the purposes provisions of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionSection 4.18 hereof.
Appears in 1 contract
Sources: Indenture (Eldorado Resorts LLC)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, irrevocably and unconditionally guarantees on a second priority senior secured basis, as a primary obligor and not merely as a surety, to each Holder and to Holder, the Trustee and its the Collateral Agent and their successors and assigns (ai) the full and punctual payment of principal of and interest on the Notes when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Issuer under this Indenture (including obligations to the Trustee and the Collateral Agent) and the Securities, whether for payment of principal of, premium, if any, or interest on the Securities and all other monetary obligations of the Company Issuer under this Indenture and the Notes Securities and (bii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes Securities (all the foregoing obligations set forth in clauses (i) through (ii) being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Subsidiary Guarantor, and that each such Subsidiary Guarantor and that such Subsidiary Guarantor will shall remain bound under this Article 10 12 notwithstanding any extension or renewal of any Guaranteed Obligation. .
(b) Each Subsidiary Guarantor waives presentation to, demand of, of payment from and protest to the Company Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (ai) the failure of any Holder Holder, the Trustee or the Trustee Collateral Agent to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise; (bii) any extension or renewal of this Indenture, the Securities or any thereofother agreement; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (div) the release of any security held by any the Collateral Agent on behalf of each Holder or and the Trustee for the Guaranteed Obligations or any of themSubsidiary Guarantor; (ev) the failure of any Holder Holder, the Trustee or the Trustee Collateral Agent to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (fvi) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor, except as provided in Section 12.02(b).
(c) Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Subsidiary Guarantors, such that such Subsidiary Guarantor’s obligations would be less than the full amount claimed. Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have the assets of the Issuer first be used and depleted as payment of the Issuer’s or such Subsidiary Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Subsidiary Guarantor hereunder. Each Subsidiary Guarantor hereby waives any right to which it may be entitled to require that the Issuer be sued prior to an action being initiated against such Subsidiary Guarantor.
(d) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder Holder, the Trustee or the Trustee Collateral Agent to any security held for payment of the Guaranteed Obligations.
(e) The Subsidiary Guarantee of each Subsidiary Guarantor is, to the extent and in the manner set forth in Article 12, equal in right of payment to all existing and future Pari Passu Indebtedness and senior in right of payment to all existing and future Subordinated Indebtedness of such Subsidiary Guarantor and is made subject to such provisions of this Indenture.
(f) Except as expressly set forth in Sections 8.01(b), 12.02 and 12.06, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder, the Trustee or the Collateral Agent 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 the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of any Subsidiary Guarantor as a matter of law or equity.
(g) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder Holder, the Trustee or the Trustee Collateral Agent upon the bankruptcy or reorganization of the Company Issuer or otherwise.
(h) In furtherance of the foregoing and not in limitation of any other right which any Holder, the Trustee or the Collateral Agent has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Issuer to the Trustee.
(i) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s any Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Section 12.01.
(j) Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Collateral Agent, the Trustee or any Holder in enforcing any rights under this SectionSection 12.01.
(k) Upon request of the Trustee, each Subsidiary Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
Appears in 1 contract
Sources: Indenture (Berry Plastics Group Inc)
Subsidiary Guarantees. Each Subject to the provisions of this Article 10, each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesGuarantor, jointly and severally, hereby unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, that: (a) the full principal of, and punctual payment of principal of premium and interest and Liquidated Damages, if any, on the Notes shall be duly and punctually paid in full when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, and all other monetary obligations of interest on overdue principal, and premium, if any, and (to the Company under this Indenture and extent permitted by law) interest on any interest, if any, on the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company to the Holders or the Trustee hereunder or under this Indenture and the Notes (including fees, expenses or other) shall be promptly paid in full or performed, all in accordance with the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, terms hereof; and (b) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other obligations, the same shall be promptly paid in full when due or 85 80 performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise (collectively, the "Guarantee Obligations"). Each Failing payment when due of any Guarantee Obligation or failing performance of any other obligation of the Company to the Holders, for whatever reason, each Subsidiary Guarantor waives presentation toshall be obligated to pay, demand or to perform or to cause the performance of, payment from and protest to the Company same immediately. An Event of any Default under this Indenture or the Notes shall constitute an event of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under this Subsidiary Guarantee, and shall entitle the Notes Trustee or the Guaranteed Obligations. The obligations Holders of Notes to accelerate the Guarantee Obligations of each Subsidiary Guarantor hereunder in the same manner and to the same extent as the Obligations of the Company. Each Subsidiary Guarantor hereby agrees that its Guarantee Obligations hereunder shall not be affected by: (a) unconditional, irrespective of the failure validity, regularity or enforceability of any Holder the Notes 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 absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any thereof, the entry of any judgment against the Company, any action to enforce the same or any other agreement circumstance which might otherwise constitute a legal or otherwise; (b) any extension equitable discharge or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance hereby waives and compliance when due relinquishes: (and not a guarantee of collectiona) and waives any right to require the Trustee, the Holders or the Company (each, a "Benefitted Party") to proceed against the Company, the Subsidiaries 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 Subsidiary Guarantors; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any resort 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 Indenture), 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 the Subsidiary Guarantors, the Company, the Subsidiaries, any Benefitted Party, any creditor of the Subsidiary Guarantors, the Company or the Subsidiaries or on the part of any other Person whomsoever in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Benefitted Party, including but not limited to an election to proceed against the Subsidiary Guarantors for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be had neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Benefitted Party's election, in any proceeding instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code. The Subsidiary Guarantors hereby covenant that, except as otherwise provided therein, the Subsidiary Guarantees shall not be discharged except by payment in full of all Guarantee Obligations, including the principal, premium, if any, and interest on the Notes and all other costs provided for under this Indenture or as provided in Section 8.01. 86 81 If any Holder or the Trustee is required by any court or otherwise to return to either the Company or the Subsidiary Guarantors, or any trustee or similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by the Company or the Subsidiary Guarantors to the Trustee or such Holder, the Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each of the Subsidiary Guarantors agrees that it shall not be entitled to any security held for right of subrogation in relation to the Holders in respect of any Guarantee Obligations hereby until payment in full of the Guaranteed Obligationsall such obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee hereinhereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantee Obligations, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 66 hereof, such Guaranteed Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes purpose of this Section. Each the Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantee.
Appears in 1 contract
Sources: Indenture (Medaphis Corp)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, fully and unconditionally guarantees the Notes and obligations of the Issuers hereunder and thereunder, and guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns Trustee, that: (ai) the full and punctual payment of principal of and premium, if any, and interest on the Notes shall be paid in full when due, whether at maturityStated Maturity, by acceleration, by call for redemption or otherwise, together with interest on the overdue principal, if any, and all other monetary obligations of interest on any overdue interest, to the Company under this Indenture extent lawful, and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuers to the Holders or the Trustee under this Indenture and or the Notes shall be paid in full or performed, all in accordance with the terms hereof and thereof; and (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, ii) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationNotes or of any such other obligations, the same shall be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Each of the Subsidiary Guarantees shall be a guarantee of payment and not of collection.
(b) Each Subsidiary Guarantor waives presentation tohereby agrees that its obligations hereunder shall be unconditional, demand of, payment from and protest to the Company of any irrespective of the Guaranteed Obligations and also waives notice validity, regularity or enforceability of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuers, any action to enforce the same or any other agreement circumstance which might otherwise constitute a legal or otherwise; (b) any extension equitable discharge or renewal defense of any thereof; a Guarantor.
(c) any rescissionEach Subsidiary Guarantor hereby waives the benefits of diligence, waiverpresentment, amendment demand for payment, filing of claims with a court in the event of insolvency or modification of any bankruptcy of the Issuers, any right to require a proceeding first against the Issuers or any other Person, protest, notice and all demands whatsoever and covenants that the Subsidiary Guarantee of such Subsidiary Guarantor shall not be discharged as to any Note or this Indenture except by complete performance of the obligations contained in such Note and this Indenture and such Subsidiary Guarantee. Each of the Subsidiary Guarantors hereby agrees that, in the event of a Default in payment of principal or premium, if any, or interest on any Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms or provisions of and conditions set forth in this Indenture, directly against each of the Notes Subsidiary Guarantors to enforce each such Subsidiary Guarantor’s Subsidiary Guarantee without first proceeding against the Issuers or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Subsidiary Guarantee herein constitutes a guarantee Guarantor shall pay to the Trustee for the account of paymentthe Holders, performance upon demand therefor, the amount that would otherwise have been due and compliance when payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders and any other amounts due and owing to the Trustee under this Indenture.
(and not a guarantee of collectiond) and waives any right to require that any resort be had by If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or any security held for payment of the Guaranteed Obligations. 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 paymentGuarantor, or any part thereofcustodian, of principal of trustee, liquidator or interest on other similar official acting in relation to the Issuers or any Guaranteed Obligation is rescinded or must otherwise be restored Subsidiary Guarantor, any amount paid by any Holder or of them to the Trustee upon or such Holder, the bankruptcy or reorganization Subsidiary Guarantee of each of the Company Subsidiary Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect. This paragraph (d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or otherwiseany Holder in reliance upon such amount required to be returned. This paragraph (d) shall survive the termination of this Indenture.
(e) Each Subsidiary Guarantor further agrees that, as between iteach Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 VI for the purposes of the Subsidiary Guarantee of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6VI, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Subsidiary Guarantor for the purposes purpose of this Section. the Subsidiary Guarantee of such Subsidiary Guarantor.
(f) Each Subsidiary Guarantor also agrees to pay any and that makes a payment for distribution under its Subsidiary Guarantee is entitled upon payment in full of all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights guaranteed obligations under this SectionIndenture to seek contribution from each other Subsidiary Guarantor in a pro rata amount of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment in accordance with GAAP.
Appears in 1 contract
Sources: Indenture (Bloomin' Brands, Inc.)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteeshereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of this Indenture, the Notes and the Obligations of the Company hereunder and thereunder, that: (a) the full principal of, premium, if any, interest and punctual payment of principal of and interest Liquidated Damages, if any, on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration, by redemption or otherwise, and interest on the overdue principal, premium, if any, (to the extent permitted by law) interest on any interest, if any, and Liquidated Damages, if any, on the Notes, and all other monetary obligations payment Obligations of the Company under this Indenture to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the Notes terms hereof and thereof; and (b) the full and punctual performance within applicable grace periods in case of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration, redemption or otherwise. Each Subsidiary Guarantor waives presentation to, demand of, Failing payment from and protest to the Company when so due of any amount so guaranteed or any performance so guaranteed for whatever reason the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Guaranteed Obligations and also waives notice Notes shall constitute an event of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the Obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the Guaranteed Obligationsabsence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. The obligations Each Guarantor hereby waives diligence, presentment, demand of each payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Subsidiary Guarantor hereunder shall Guarantee will not be affected by: (a) discharged except by complete performance of the failure of Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to assert return to the Company, the Guarantors, or any claim Note Custodian, Trustee, liquidator or demand or other similar official acting in relation to enforce any right or remedy against either the Company or the Guarantors, any other Person under amount paid by either to the Trustee or such Holder, this IndentureSubsidiary Guarantee, to the Notes or extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to, and hereby waives, any other agreement or otherwise; (b) any extension or renewal right of subrogation in relation to the Holders in respect of any thereof; (c) any rescission, waiver, amendment or modification of any Obligations guaranteed hereby until payment in full of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantorhereunder. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of such this Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 66 hereof, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor the Guarantors for the purposes purpose of this SectionSubsidiary Guarantee. Each 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 Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantees.
Appears in 1 contract
Sources: Indenture (Katz Media Group Inc)
Subsidiary Guarantees. Each The Company's Obligations under the Notes, this Indenture and the Collateral Documents will be jointly and severally guaranteed by any Restricted Subsidiary (a "Guarantor") which is required to execute and deliver a supplemental indenture pursuant to Section 4.15 hereof (the "Subsidiary Guarantees"). Subject to the provisions of this Article 11, any such Guarantor hereby unconditionally and irrevocably guaranteeswill, 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 (a) the full and punctual payment of principal of and interest on the Notes when dueassigns, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations irrespective of the Company under this Indenture validity and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions enforceability of this Indenture, the Notes or any other agreement; the Obligations of the Company under this Indenture or the Notes, that: (di) the release principal of, premium, if any, and interest on the Notes will be paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, call for redemption, offer to purchase or otherwise, and interest on the overdue principal of, premium, and interest, if any, on the Notes and all other Obligations of any security held by any Holder the Company to the Holders or the Trustee for under this Indenture, the Guaranteed Obligations Collateral Documents, or the Notes will be promptly paid in full or performed, all in accordance with the terms of this Indenture, the Collateral Documents, and the Notes; (ii) in case of any extension of time of payment or renewal of any Notes or any of them; (e) such other Obligations, they will be paid in full when due or performed in accordance with the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor terms of the Obligations; extension or (f) except as set forth in Section 10.06renewal, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of paymentwhether at maturity, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company acceleration or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, ; and (yiii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred by the Trustee or any Holder in enforcing any rights under any Subsidiary Guarantee will be paid. Failing payment when due of any amount so guaranteed for whatever reason, any Guarantor will be obligated ( subject to any grace periods allowed pursuant to Section 6.01 hereof) to pay the same whether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 6.02 hereof. An Event of Default under this Section.Indenture or the Notes shall constitute an event of default under any Subsidiary Guarantee, and shall entitle the Holders of Notes to accelerate the Obligations of any Guarantor hereunder in the same manner and to the same extent as the Obligations of the Company. Any Guarantor will agree 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 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 any Guarantor. Any Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of either or both of the Company, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee will not be
Appears in 1 contract
Sources: Indenture (Prime Hospitality Corp)
Subsidiary Guarantees. Each Guarantor Subsidiary Guarantor hereby jointly and severally unconditionally and irrevocably guarantees, jointly as a primary obligor and severallynot merely as a surety, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest and Liquidated Damages on the Series B Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company Note Issuers under this Indenture (including obligations to the Trustee) and the Series B Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuers whether for expenses, indemnification or otherwise under this Indenture and the Series B Notes (all the foregoing being hereinafter collectively called the “Guaranteed "Obligations”"). Each Guarantor Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Subsidiary Guarantor Subsidiary, and that each such Guarantor Subsidiary Guarantor will shall remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Obligation. Each Guarantor Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company Note Issuers of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor Subsidiary Guarantor waives notice of any default under the Series B Notes or the Guaranteed Obligations. The obligations of each Guarantor Subsidiary Guarantor hereunder shall not be affected by: 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 Note Issuers or any other Person under this Indenture, the Series B Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Series B Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary GuarantorGuarantor Subsidiary, except as provided in Section 10.02(b). Each Guarantor Subsidiary Guarantor further agrees that its Subsidiary Guarantee Guaranty herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. The obligations of each Guarantor Subsidiary hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (except based on actual payment or performance or any release or termination contemplated by this Indenture), 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 84 76 generality of the foregoing, the obligations of each Guarantor Subsidiary herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Series B Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of, or would otherwise operate as a discharge of, a surety as a matter of law or equity. Each Guarantor Subsidiary Guarantor further agrees that its Subsidiary Guarantee Guaranty herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company Note Issuers 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 any Guarantor Subsidiary by virtue hereof, upon the failure of the Note Issuers to pay the principal of or interest on any Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Obligation, each Guarantor Subsidiary hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Obligations, (ii) accrued and unpaid interest on such Obligations (but only to the extent not prohibited by law) and (iii) all other monetary Obligations of the Note Issuers to the Holders and the Trustee. Each Guarantor Subsidiary 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. Each Guarantor Subsidiary further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 VI for the purposes of such any Subsidiary Guarantor’s Subsidiary Guarantee Guaranty herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor Subsidiary Guarantor for the purposes of this Section. Each Guarantor Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ ' fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section.. 85 77
Appears in 1 contract
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, severally irrevocably and unconditionally guarantees to each Holder and to the Trustee Trustees and its their respective successors and assigns (ai) the full and punctual payment of principal of and interest on the Notes when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all other monetary obligations of the Company under this Indenture (including obligations to the Trustees) and the Notes, whether for payment of principal of, or interest on in respect of the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (bii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Notes Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Notes Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Subsidiary Guarantor Guarantor, and that each such Subsidiary Guarantor will shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Notes Obligation. .
(b) Each Subsidiary Guarantor waives presentation to, demand of, of payment from and protest to the Company of any of the Guaranteed Notes Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Notes Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (ai) the failure of any Holder or the Trustee Trustees to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; , (bii) any extension or renewal of any thereof; , (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this IndentureIndenture (other than this Article 10), the Notes or any other agreement; , (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (eiv) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; Notes Obligations or (fvi) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor.
(c) Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have the assets of the Company first be used and depleted as payment of the Company’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee Trustees to any security held for payment of the Guaranteed Notes Obligations.
(e) Except as expressly set forth in Section 8.1(b), 10.2 and 10.6, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Notes Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustees to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Subject to Section 10.6, each Guarantor agrees that its Subsidiary Guarantee shall remain in full force and effect until payment in full of all the Notes Obligations. Each Subsidiary Guarantor further agrees agrees, subject to Section 10.6, 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 Guaranteed Notes Obligation is rescinded or must otherwise be restored by any Holder or the Trustee Trustees upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustees have at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Notes Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Notes Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustees, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustees an amount equal to the sum of (i) the unpaid principal amount of such Notes Obligations, (ii) accrued and unpaid interest on such Notes Obligations (but only to the extent not prohibited by law) and (iii) all other monetary obligations of the Company to the Holders and the Trustees.
(h) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Notes Obligations guaranteed hereby until payment or discharge in full of all Notes Obligations other than obligations for fees and expenses. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the TrusteeTrustees, on the other hand, (xi) the maturity of the Guaranteed Notes Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s any Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsNotes Obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Notes Obligations as provided in Article 6, such Guaranteed Notes Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Section 10.1.
(i) Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee Trustees or any Holder in enforcing any rights under this SectionSection 10.1.
(j) Upon request of the Trustees, each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
Appears in 1 contract
Sources: Indenture (Open Text Corp)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby jointly and severally unconditionally and irrevocably guarantees, jointly as a primary obligor and severallynot merely as a surety, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Notes Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture (including obligations to the Trustee) and the Notes Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for expenses, indemnification or otherwise under this Indenture and the Notes Securities (all the foregoing being hereinafter collectively called the “Guaranteed "Obligations”"). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Subsidiary Guarantor, and that each such Subsidiary Guarantor and that such Subsidiary Guarantor will shall remain bound under this Article 10 11 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor, except as provided in Section 11.02(b). Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the 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 that 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 any 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Obligations, (ii) accrued and unpaid interest on such Obligations (but only to the extent not prohibited by law) and (iii) all other monetary Obligations of the Company to the Holders and the Trustee. 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. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 VI for the purposes of such Subsidiary Guarantor’s any Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ ' fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section.
Appears in 1 contract
Sources: Indenture (Argo Tech Corp)
Subsidiary Guarantees. Each (a) Subject to this Article 5 and the subordination provisions of Article 4, each of the Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesGuarantors hereby, jointly and severally, unconditionally guarantees, during the Guarantee Period, to each Holder holder of a Debenture authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of this Indenture, the Debentures or the Obligations of the Company hereunder or thereunder, that:
(a1) the principal of, and Interest and Additional Amounts, if any, on, the Debentures will be promptly paid in full and punctual payment of principal of and interest on the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of Interest on the Company under this Indenture overdue principal and Interest on any overdue Interest on the Notes Debentures, if any, if lawful, and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture to the holders or the Trustee hereunder or thereunder will be promptly paid in full or performed (including, without limitation, the Company's obligation to deliver cash and Common Stock, if any, or shares of stock, other securities or other property or assets upon conversion of a Debenture pursuant to Article 17), all in accordance with the Notes terms hereof and thereof; and
(all 2) in case of any extension of time of payment or renewal of any Debentures or any of such other Obligations, that same will be promptly paid in full when due or performed in accordance with the foregoing being hereinafter collectively called terms of the “extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so Guaranteed Obligations”)or any performance so Guaranteed for whatever reason, the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor this is a Guarantee of payment and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal not a Guarantee of any Guaranteed Obligation. collection.
(b) Each Subsidiary Guarantor waives presentation tohereby agrees that its obligations hereunder are unconditional, demand of, payment from and protest to the Company of any irrespective of the Guaranteed Obligations and also waives notice validity, regularity or enforceability of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes Debentures or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes absence of any action to enforce the same, any waiver or consent by any holder of the Debentures with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other agreement circumstance which might otherwise constitute a legal or otherwise; (b) any extension equitable discharge or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee hereby waives diligence, presentment, demand of payment, performance and compliance when due (and not filing of claims with a guarantee court in the event of collection) and waives insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in the Debentures and this Indenture.
(c) If any resort be had by any Holder holder or the Trustee is required by any court or otherwise to return to the Company, the Subsidiary Guarantors or any security held for payment of custodian, trustee, liquidator or other similar official acting in relation to either the Guaranteed Obligations. Company or the Subsidiary Guarantors, any amount paid by the Company or any Subsidiary Guarantor either to the Trustee or such holder, this Subsidiary Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall continue it will not be entitled to be effective or be reinstated, as any right of subrogation in relation to the case may be, if at holders in respect of any time payment, or any part thereof, Obligations Guaranteed hereby until payment in full of principal of or interest on any all Obligations Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwisehereby. Each Subsidiary Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders holders and the Trustee, on the other hand, (x1) the maturity of the Obligations Guaranteed Obligations hereby may be accelerated as provided in Article 6 8 hereof for the purposes of such this Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations Guaranteed Obligationshereby, and (y2) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 68 hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by such the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors will have the right to seek contribution from any non-paying Subsidiary Guarantor for so long as the purposes exercise of this Section. Each such right does not impair the rights of the holders under the Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantee.
Appears in 1 contract
Sources: Indenture (Genesis Healthcare Corp)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees(a) Subject to this Article Fourteen, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a 8.5% Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of the 8.5% Notes or the obligations of the Company hereunder or thereunder, that:
(a1) the full and punctual payment of principal of of, premium, if any, and interest on on, the 8.5% Notes will be promptly paid in full when due, whether at final maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of interest on any overdue principal of, premium, if any, and interest on the Company under this Indenture 8.5% Notes, if lawful, and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and the Notes thereof; and
(all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, 2) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the 8.5% Notes or any of such other agreement obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at final maturity, by acceleration, redemption or otherwise; (b) any extension or renewal . Failing payment when due of any thereof; (c) amount so guaranteed or any rescission, waiver, amendment or modification of any of the terms or provisions of this Indentureperformance so guaranteed for whatever reason, the Notes or any other agreement; (d) Guarantors will be jointly and severally obligated to pay the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantorsame immediately. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes this is a guarantee of payment, performance and compliance when due (payment and not a guarantee of collection.
(b) and The Guarantors hereby agree that their obligations hereunder are, to the extent permitted by applicable law, unconditional, irrespective of the validity, regularity or enforceability of the 8.5% Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the 8.5% 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 guarantor. To the extent permitted by applicable law, each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that any resort this Subsidiary Guarantee will not be had discharged except by complete performance of the obligations contained in the 8.5% Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to any security held for payment of return to the Guaranteed Obligations. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall continue to be effective or be reinstatedCompany, as the case may be, if at any time payment, Guarantors or any part thereofcustodian, of principal of trustee, liquidator or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of other similar official acting in relation to either the Company or otherwisethe Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, to the extent permitted by applicable law, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x1) the maturity Maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 Five of this Indenture for the purposes of such this Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (y2) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6Five of this Indenture, such Guaranteed Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by such Subsidiary Guarantor the Guarantors for the purposes purpose of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantee.
Appears in 1 contract
Sources: First Supplemental Indenture (Frontier Oil Corp /New/)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesof the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the full and punctual payment of principal of and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations interest on the overdue principal of and interest on the Company under this Indenture Notes, if any, if lawful, and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and the Notes thereof; and (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, b) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Each Subsidiary Guarantor waives presentation to, demand of, Failing payment from and protest to the Company when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the Guaranteed Obligations and also waives notice validity, regularity or enforceability of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or this Indenture, the Guaranteed Obligationsabsence 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 a guarantor. The obligations Each Guarantor hereby waives diligence, presentment, demand of each payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantor hereunder shall Guarantee will not be affected by: (a) discharged except by complete performance of the failure of obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to assert any claim or demand or return to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 paymentGuarantors, or any part thereofCustodian, of principal of Trustee, liquidator or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of other similar official acting in relation to either the Company or otherwiseGuarantors, 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 they 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 itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 VI for the purposes of such this Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6VI, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor the Guarantors for the purposes purpose of this SectionSubsidiary Guarantee. Each Subsidiary The Guarantors shall have the right to seek contribution from any non-paying Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by so long as the Trustee or any Holder in enforcing any exercise of such right does not impair the rights of the Holders under this Sectionthe Guarantee.
Appears in 1 contract
Sources: Indenture (Inex Corp)
Subsidiary Guarantees. Each Subject to Section 10.05 hereof, any Restricted Subsidiary that becomes a Guarantor hereby unconditionally and irrevocably guaranteesshall, 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 assigns, the Notes and the Obligations of the Company hereunder and thereunder, that:
(a) the full principal of, premium, if any, interest and punctual payment of principal of and interest Liquidated Damages, if any, on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration, by redemption or otherwise, and interest on the overdue principal, premium, if any (to the extent permitted by law), interest on any interest, if any, and Liquidated Damages, if any, on the Notes, and all other monetary obligations payment Obligations of the Company under this Indenture to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the Notes terms hereof and thereof; and
(b) the full and punctual performance within applicable grace periods in case of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration, redemption or otherwise. Each Subsidiary Guarantor waives presentation to, demand of, Failing payment from and protest to the Company when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Guaranteed Obligations and also waives notice Notes shall constitute an event of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the Obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors shall agree that their Obligations hereunder shall be unconditional, irrespective of the validity or enforceability of the Notes or this Indenture, the Guaranteed Obligationsabsence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. The obligations Each Guarantor shall waive diligence, presentment, demand of each 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 shall covenant that its Subsidiary Guarantor hereunder shall Guarantee will not be affected by: (a) discharged except by complete performance of the failure of Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to assert return to the Company, the Guarantors, or any claim Note Custodian, Trustee, liquidator or demand other similar official acting in relation to either the Company or to enforce the Guarantors, any right or remedy against amount paid by the Company or any other Person under this IndentureGuarantor to the Trustee or such Holder, the Notes or Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor shall agree that it shall not be entitled to, and shall waive, any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee right to exercise any right or remedy against of subrogation in relation to the Holders in respect of any other guarantor of Obligations guaranteed by the Obligations; or (f) Subsidiary Guarantee, except as set forth in provided under Section 10.06, any change in the ownership of such Subsidiary Guarantor10.05 hereof. Each Subsidiary Guarantor shall further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees agree that, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations guaranteed by the Subsidiary Guarantee may be accelerated as provided in Article 6 hereof for the purposes of such its Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed thereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 66 hereof, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary each Guarantor for the purposes purpose of this Sectionits Subsidiary Guarantee. Each The Guarantors shall have the right to seek contribution from any non-paying Guarantor pursuant to Section 10.05 after the Notes and the Obligations hereunder shall have been paid in full to the Holders under the Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantees.
Appears in 1 contract
Sources: Indenture (Gulfmark Offshore Inc)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby jointly and severally irrevocably and unconditionally and irrevocably guarantees, jointly as a primary obligor and severallynot merely as a surety, to each Holder and to the Trustee and its successors and assigns (ai) the full and punctual payment of principal of and interest on the Notes when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (bii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Subsidiary Guarantor, and that each such Subsidiary Guarantor and that such Subsidiary Guarantor will shall remain bound under this Article 10 4 notwithstanding any extension or renewal of any Guaranteed Obligation. .
(b) Each Subsidiary Guarantor waives presentation to, demand of, of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default Default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (bii) any extension or renewal of any thereof; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (div) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (ev) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (fvi) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor, except as provided in Section 4.02(b) of the First Supplemental Indenture.
(c) Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Subsidiary Guarantors, such that such Subsidiary Guarantor’s obligations would be less than the full amount claimed. Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have the assets of the Company first be used and depleted as payment of the Company’s or such Subsidiary Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Subsidiary Guarantor hereunder. Each Subsidiary Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Subsidiary Guarantor.
(d) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) The Subsidiary Guarantee of each Subsidiary Guarantor is, to the extent and in the manner set forth in Article 5 of the First Supplemental Indenture, subordinated and subject in right of payment to the prior payment in full of the principal of and premium, if any, and interest on all Senior Indebtedness of the relevant Subsidiary Guarantor and is made subject to such provisions of this Indenture.
(f) Except as expressly set forth in Section 10.01(b) of the Indenture and Sections 4.02 and 4.06 of the First Supplemental Indenture, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of any Subsidiary Guarantor as a matter of law or equity.
(g) Except as otherwise provided herein, each Subsidiary Guarantor agrees that its Subsidiary Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(h) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (iii) all other monetary obligations of the Company to the Holders and the Trustee.
(i) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations and all obligations to which the Guaranteed Obligations are subordinated as provided in Article 5 of the First Supplemental Indenture. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 5 of the Indenture for the purposes of such Subsidiary Guarantor’s any Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 65 of the Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Section 4.01.
(j) Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ attorney’s fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionSection 4.01.
(k) Upon request of the Trustee, each Subsidiary Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
Appears in 1 contract
Subsidiary Guarantees. Each (a) The Company shall cause each of LFC, the Operating Subsidiary, ▇▇▇▇▇ Fargo of Texas and ▇▇▇▇▇ Fargo of Puerto Rico to deliver a Subsidiary Guarantor hereby unconditionally Guarantee by executing this Indenture on the Issue Date. In addition, the Company shall cause each Subsidiary of the Company created or acquired after the date hereof that either (i) Guarantees any Senior Debt of the Company or any Indebtedness of the Company that is pari passu in right of payment with the Notes or (ii) is or becomes a Significant Subsidiary (whether as a result of creation, acquisition, additional investment, internal growth or otherwise), not later than fifteen (15) days after such execution, creation or acquisition to (A) execute a Supplemental Indenture and irrevocably guarantees, jointly deliver such Supplemental Indenture and severally, an Opinion of Counsel in form acceptable to each Holder and the Trustee (as set forth in paragraph (b) below) to the Trustee and its successors (B) execute a written agreement (the "Letter Agreement") to be bound by the terms of the Registration Rights Agreement with the same force and assigns effect as if such Subsidiary had been a Guarantor and an original party to the Registration Rights Agreement and deliver such agreement and an Opinion of Counsel in form acceptable to the Trustee (as set forth in paragraph (b) below) to the Trustee.
(b) The Opinion of Counsel required by clause (a) above shall state that the full and punctual payment of principal of and interest on the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Supplemental Indenture and the Notes Letter Agreement have been duly authorized, executed and (b) delivered by such Subsidiary, that the full and punctual performance within applicable grace periods of all other obligations of such Subsidiary under such Supplemental Indenture and such Letter Agreement are enforceable against such Subsidiary in accordance with their terms and that delivery by such Subsidiary of each of the Company under this Supplemental Indenture and the Notes Letter Agreement will not (all i) result in any violation of the foregoing being hereinafter collectively called provisions of the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended charter or renewedbylaws of such Subsidiary, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest (ii) to the Company best knowledge of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes such counsel, conflict with or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder result in a breach or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument known to such counsel to which such Subsidiary is a party, or (iii) to the best knowledge of such counsel, result in any violation of the provisions of any federal or state statute, or any order, rule or regulation of any federal or state court or governmental agency or body having jurisdiction over such Subsidiary or any of its properties or assets.
(c) In the event of a sale or other disposition of all or substantially all of the assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition (including, without limitation, by foreclosure) of all of the Capital Stock of any Guarantor to any Person other than the Company or a Wholly Owned Subsidiary thereof, then such Guarantor shall be automatically released and relieved of any obligations under its Subsidiary Guarantee; provided that the Net Proceeds of such sale or other disposition are applied in accordance with Sections 3.9 and 4.10 hereof. Upon delivery by the Company to the Trustee of an Officers' Certificate of the Company and an Opinion of Counsel to the effect that such sale or other disposition was made by the Company in accordance with the provisions of this Indenture, including without limitation Sections 3.9 and 4.10 hereof, the Notes or Trustee shall execute any other agreement; (d) documents reasonably required in order to evidence the release of any security held by Guarantor from its obligations under Article XI hereof or pursuant to any Holder or the Trustee for the Guaranteed Obligations or any of them; Supplemental Indenture.
(ed) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Any Guarantor further agrees that not released from its obligations under its Subsidiary Guarantee herein constitutes a guarantee shall remain liable for the full amount of paymentprincipal, performance Redemption Price, and compliance when due (Purchase Price of and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall continue to be effective or be reinstated, as the case may beLiquidated Damages, if at any time paymentany, or any part thereof, of principal of or and interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, Notes and the Holders and the Trustee, on for the other hand, (x) the maturity obligations of the Guaranteed Obligations may be accelerated any Guarantor under this Indenture as provided in this Article 6 for the purposes XI. The provisions of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding this Section 4.20 shall not affect any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (yCompany's obligations under Section 4.9(vi) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Sectionhereof.
Appears in 1 contract
Sources: Indenture (Loomis Fargo & Co)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, on a senior secured basis, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of of, premium, if any, and interest on the Notes Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Notes Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes Securities (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor Guarantor, and that such Subsidiary Guarantor will remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Obligation. Any term or provision of this Indenture to the contrary notwithstanding, the maximum aggregate amount of the obligations guaranteed hereunder by any Subsidiary Guarantor shall not exceed the maximum amount that can be hereby guaranteed without rendering this Indenture, as it relates to such Subsidiary Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; or (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Section 5.01(b), Section 8.01(b) and Section 10.06, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the 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 such 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 of, premium, if any, or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of, premium, if any, or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (iii) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations guaranteed hereby until payment in full in cash of all Guaranteed Obligations. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 VI for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this SectionSection 10.01. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionSection 10.01.
Appears in 1 contract
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesSubject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of this Fifth Supplemental Indenture or this Indenture, the Notes held thereby and the Obligations of the Company hereunder and thereunder, that: (a) the full and punctual payment of principal of and premium, if any, and interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturityStated Maturity, by acceleration, by upon repurchase or redemption or otherwise, and interest on the overdue principal of and premium, if any, and (to the extent permitted by law) interest on the Notes, and all other monetary obligations payment Obligations of the Company under this Indenture to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the Notes terms hereof and thereof; and (b) the full and punctual performance within applicable grace periods in case of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise. Each Subsidiary Guarantor waives presentation toFailing payment when so due of any amount so guaranteed for whatever reason, demand of, payment from the Guarantors will be jointly and protest severally obligated to pay the same immediately. An Event of Default with respect to the Company Notes under this Indenture shall constitute an event of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Fifth Supplemental Indenture or this Indenture, the Guaranteed Obligationsabsence 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 a Guarantor. The obligations Each Guarantor further, to the extent permitted by law, hereby waives diligence, presentment, demand of each payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantor hereunder shall Guarantee will not be affected by: (a) discharged except by complete performance of the failure of Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to assert return to the Company, the Guarantors, or any claim Custodian, Trustee or demand other similar official acting in relation to either the Company or to enforce the Guarantors, any right or remedy against amount paid by the Company or any other Person under this IndentureGuarantor to the Trustee or such Holder, the Notes or Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to, and hereby waives, any other agreement or otherwise; (b) any extension or renewal right of subrogation in relation to the Holders in respect of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantorguaranteed hereby. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 Five of the Original Indenture for the purposes of such its Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed thereby, and (yb) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6Five of the Original Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary the Guarantor for the purposes purpose of this Sectionits Subsidiary Guarantee. Each 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 Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantees.
Appears in 1 contract
Sources: Fifth Supplemental Indenture (Whiting Petroleum Corp)
Subsidiary Guarantees. Each Subject to this Article 10, each of the Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesGuarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the full and punctual payment of principal of and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations interest on the overdue principal of and interest on the Company under this Indenture Notes, if any, if lawful, and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture to the Holders or the Trustee hereunder 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 will be promptly paid in full when due or performed in accordance with the Notes (all terms of the foregoing being hereinafter collectively called extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the “Guaranteed Obligations”)Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes is a guarantee of payment, performance and compliance when due (payment and not a guarantee of collection) and waives any right to require . The Subsidiary Guarantors hereby agree that any resort their obligations hereunder shall be had by any Holder or the Trustee to any security held for payment unconditional, irrespective of the Guaranteed Obligations. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall continue to be effective validity, regularity or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization enforceability of the Company Notes or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section.this
Appears in 1 contract
Sources: Indenture (Cke Restaurants Inc)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by the Trustee or any Holder in enforcing any rights under this Section.
Appears in 1 contract
Subsidiary Guarantees. Each Subject to the provisions of this Article 12, each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesGuarantor, jointly and severally, hereby unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, that: (a) the full principal of, and punctual payment of principal of premium, if any, and interest on the Notes shall be duly and punctually paid in full when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, and all other monetary obligations of the Company under this Indenture interest on overdue principal, and premium, if any, on the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company to the Holders or the Trustee hereunder or under this Indenture and the Notes (including fees, expenses or other) shall be promptly paid in full or performed, all in accordance with the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, terms hereof; and (b) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other obligations, 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 maturity, by acceleration or otherwise. Each Failing payment when due of any amount so guaranteed or failing performance of any other obligation of the Company to the Holders, for whatever reason, each Subsidiary Guarantor waives presentation toshall be obligated to pay, demand or to perform or to cause the performance of, payment from and protest to the Company same immediately. An Event of any Default under this Indenture or the Notes shall constitute an event of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under this Subsidiary Guarantee, and shall entitle the Notes Trustee or the Guaranteed Obligations. The Holders of Notes to accelerate the obligations of each Subsidiary Guarantor hereunder in the same manner and to the same extent as the obligations of the Company. Each Subsidiary Guarantor hereby agrees that its obligations hereunder shall not be affected by: (a) unconditional to the failure extent permitted by applicable laws, irrespective of any Holder the validity, regularity or enforceability of the Trustee to assert any claim Notes or demand or to enforce any right or remedy against the Company or any other Person under 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 thereof, the entry of any judgment against the Company, any action to enforce the same or any other agreement circumstance which might otherwise constitute a legal or otherwise; (b) any extension equitable discharge or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance hereby waives and compliance when due relinquishes: (and not a guarantee of collectiona) and waives any right to require the Trustee, the Holders or the Company (each, a Benefitted Party") to proceed against the Company, its Subsidiaries 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 Subsidiary Guarantors; (b) any defense that may arise by reason of the lack of authority of any resort other Person or Persons or the failure of a Benefitted Party to file or enforce a claim against the estate (in 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 Indenture), 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 the Subsidiary Guarantors, the Company, the Subsidiaries of the Company, any Benefitted Party, any creditor of the Subsidiary Guarantors, the Company or the Subsidiaries of the Company or on the part of any other Person whomsoever in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Benefitted Party, including, but not limited to, an election to proceed against the Subsidiary Guarantors for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be had neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Benefitted Party's election, in any proceeding instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code. The Subsidiary Guarantors hereby covenant that the Subsidiary Guarantees shall not be discharged except by payment in full of all principal, premium, if any, and interest on the Notes and all other costs provided for under this Indenture, or as provided in Section 901. If any Holder or the Trustee is required by any court or otherwise to return to either the Company or the Subsidiary Guarantors, or any trustee or similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by the Company or the Subsidiary Guarantors to the Trustee or such Holder, the Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each of the Subsidiary Guarantors agrees that it shall not be entitled to any security held for right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of the Guaranteed Obligationsall obligations guaranteed hereby. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 7 hereof for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee hereinhereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 67 hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes purpose of this Section. Each the Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantee.
Appears in 1 contract
Sources: First Supplemental Indenture (Olympic Financial LTD)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby jointly and severally unconditionally and irrevocably guarantees, jointly and severally, guarantees on a senior basis to each Holder and to the Trustee and its successors and assigns (ai) the full and punctual payment of principal of principal, premium, if any, interest, and interest on Additional Interest, if any, with respect to, the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company Issuers under this the Indenture (including obligations to the Trustee) and the Notes and (bii) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuers under this the Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed "Note Obligations”"). Each Subsidiary Guarantor further agrees that the Guaranteed Note Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Subsidiary Guarantor, and that each such Subsidiary Guarantor and that such Subsidiary Guarantor will shall remain bound under this Article 10 IX notwithstanding any extension or renewal of any Guaranteed Note Obligation. .
(b) Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company Issuers of any of the Guaranteed Note Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default Default or Event of Default under the Notes or the Guaranteed Note Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company Issuers or any other Person under this the Indenture, the Notes or any other agreement or otherwise; (bii) any extension or renewal of any thereof; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this the Indenture, the Notes or any other agreement; (div) the release of any security held by any Holder or the Trustee for the Guaranteed Note Obligations or any of them; (ev) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Note Obligations; or (fvi) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. , except as provided in Section 9.02 hereof.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Note Obligations.
(d) The obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason other than indefeasible payment in full of the Note Obligations, 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 Note Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under the Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of any Subsidiary Guarantor as a matter of law or equity.
(e) 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 principal, premium, if any, interest or interest on Additional Interest, if any, with respect to any Guaranteed Note Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of either of the Company Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay the principal, premium, if any, interest or Additional Interest, if any, with respect to any Note Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Note Obligation, each Subsidiary Guarantor hereby promises to and shall forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Note Obligations, (ii) accrued and unpaid interest on such Note Obligations (but only to the extent not prohibited by law) and (iii) all other monetary Note Obligations of the Issuers to the Holders and the Trustee.
(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 Note Obligations guaranteed hereby until payment in full of all Note Obligations. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Note Obligations guaranteed hereby may be accelerated as provided in Article 6 VII hereof for the purposes of such any Subsidiary Guarantor’s Subsidiary 's Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsNote Obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6VII hereof, such Guaranteed Note Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Section 9.01.
(h) Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred by the Trustee or any Holder in enforcing any rights under this Section 9.01. Section.
Appears in 1 contract
Sources: Third Supplemental Indenture (Rancho Holdings Gp LLC)
Subsidiary Guarantees. Each The Subsidiary Guarantor Guarantors and each Subsidiary of the Company that in accordance with Section 10.02 hereof is hereafter required to guarantee the obligations of the Company under the Notes and this Indenture hereby jointly and severally and unconditionally and irrevocably guarantees, jointly and severallyon a senior basis (each such guarantee being a "Subsidiary Guarantee"), to each Holder of a Note authenticated and to delivered by the Trustee and its successors and assigns (a) irrespective of the full and punctual payment validity or enforceability of principal of and interest on this Indenture, the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary the obligations of the Company under this Indenture or the Notes, that: (i) the principal of, premium, if any, and interest on the Notes shall be paid in full when due, whether at the stated maturity or interest payment or mandatory redemption date, by acceleration, call for redemption or otherwise, and interest on the overdue principal and interest, if any, of the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company to the Holders or the Trustee under this Indenture or the Notes shall be promptly paid in full or performed, all in accordance with the terms of this Indenture and the Notes; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, they shall be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed for whatever reason, each Subsidiary Guarantor shall be obligated to pay the same whether or not such failure to pay has become an Event of Default that could cause acceleration pursuant to Section 6.02 hereof. Each Subsidiary Guarantor agrees that this is a guarantee of payment not a guarantee of collection. Each Subsidiary Guarantor hereby agrees that its obligations with regard to its Subsidiary Guarantee shall be 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 and or the Notes Notes, any action to enforce the same or any other circumstances (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”)other than complete performance) that might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. Each Subsidiary Guarantor further further, to the extent permitted by law, waives and relinquishes all claims, rights and remedies accorded by applicable law to guarantors and agrees that the Guaranteed Obligations may be extended not to assert or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal take advantage of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation such claims, rights or remedies, including but not limited to: (i) any right to require the Trustee, demand of, payment from and protest to the Holders or the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (aeach, a "Benefitted Party") the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy proceed against the Company or any other Person under this Indenture, the Notes or any other agreement to proceed against or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of exhaust any security held by a Benefitted Party at any time or to pursue any other remedy in any Benefitted Party's power before proceeding against such Subsidiary Guarantor; (ii) 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; (iii) 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 Benefitted Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person; (iv) 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 Subsidiary Guarantor, the Company, any Benefitted Party, any creditor of such Subsidiary Guarantor, the Company or on the part of any other Person whomsoever in connection with any Indebtedness or Obligations hereby guaranteed; (v) any defense based upon an election of remedies by a Benefitted Party, including but not limited to an election to proceed against such Subsidiary Guarantor for reimbursement; (vi) any defense based upon any statute or rule of law that provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (vii) any defense arising because of a Benefitted Party's election, in any proceeding instituted under any Bankruptcy Law, of the application of Section 1111(b)(2) under the Bankruptcy Law; (viii) any defense based on any borrowing or grant of a security interest under Section 364 under the Bankruptcy Law; or (ix) any right to require a proceeding first against the Company, protest, notice and all demands whatsoever. Each Subsidiary Guarantor hereby covenants that its Subsidiary Guarantee will not be discharged except in accordance with Section 10.05 or by complete performance of all of the obligations contained in its Subsidiary Guarantee, the Notes and this Indenture. If any Holder or the Trustee for is required by any court or otherwise to return to either the Guaranteed Obligations Company or any of them; (e) Subsidiary Guarantor, or any custodian, trustee, or similar official acting in relation to either the failure of any Holder Company or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor, any amount paid by the Company or such Subsidiary Guarantor to the Trustee or such Holder, the applicable Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and it will not a guarantee of collection) and waives be entitled to any right of subrogation in relation to require that the Holders in respect of any resort be had by any Holder or the Trustee to any security held for obligations guaranteed hereby until payment in full of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwiseall obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between itsuch Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 Section 6.02 hereof for the purposes of such this Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect as to the Company or any other obligor on the Notes of the Guaranteed Obligations, obligations guaranteed hereby and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations those obligations as provided in Article 6Section 6.02 hereof, such Guaranteed Obligations those obligations (whether or not due and payable) shall will forthwith become due and payable by such Subsidiary Guarantor for the purposes purpose of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantee.
Appears in 1 contract
Subsidiary Guarantees. Each 4.1.1 Subject to Section 4.1.6 and Section 4.1.7, each of the Subsidiary Guarantor Guarantors hereby irrevocably and unconditionally and irrevocably guaranteesguarantees on a senior, unsecured basis, jointly and severally, with each other and with the Parent (in the manner contemplated by Article 14 of the Trust Indenture), to each Holder holder of Series B Notes authenticated and delivered by the Indenture Trustee and to the Indenture Trustee and its successors and assigns (a) assigns, irrespective of the full validity and punctual payment enforceability of the Trust Indenture, the Series B Notes or the obligations of the Partnership under this Second Supplemental Indenture:
4.1.1.1 that the principal of of, and interest and Premium, if any, on the Notes Series B Notes, will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Notes and (b) the full and punctual performance within applicable grace periods of that all other obligations of the Company Partnership to the Noteholders or the Indenture Trustee under the Trust Indenture or this Second Supplemental Indenture, will be promptly paid in full or performed, all in accordance with the terms of the Trust Indenture, this Second Supplemental Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, Series B Notes; and
4.1.1.2 in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationSeries B Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether on the Maturity Date, by acceleration, redemption or otherwise.
4.1.2 Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, each of the Subsidiary Guarantors will be obligated to pay the same immediately. Each of the Subsidiary Guarantor waives presentation toGuarantors agrees that this is a guarantee of payment and not a guarantee of collection.
4.1.3 Each of the Subsidiary Guarantors hereby agrees that its obligations under its Guarantee are unconditional, demand ofirrespective of the validity, payment from and protest to regularity or enforceability of the Company Series B Notes, the Trust Indenture or this Second Supplemental Indenture, the absence of any of action to enforce the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice same, any waiver or consent by any Noteholder with respect to any provisions hereof or thereof, the recovery of any default under judgment against the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of Partnership, any Holder or the Trustee to assert any claim or demand or action to enforce any right or remedy against the Company same or any other Person under this Indenture, the Notes circumstance which might otherwise constitute a legal or any other agreement equitable discharge or otherwise; (b) any extension or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee hereby waives diligence, presentment, demand of payment, performance and compliance when due (and not filing of claims with a guarantee court in the event of collection) and waives insolvency or bankruptcy of the Partnership, any right to require a proceeding first against the Partnership, protest, notice and all demands whatsoever and covenants that (subject to Section 4.1.6 below) its Guarantee will not be discharged except by complete performance of the obligations contained in the Series B Notes and this Second Supplemental Indenture.
4.1.4 If any resort be had Noteholder or the Indenture Trustee is required by any Holder court or otherwise to return to the Partnership or the Subsidiary Guarantors, or any custodian, trustee, receiver, receiver- manager, interim receiver, liquidator or other similar official acting in relation to the Subsidiary Guarantors or the Partnership, any amount paid either to the Indenture Trustee or such Noteholder, the Guarantees, to any security held for payment of the Guaranteed Obligations. extent theretofore discharged, will be reinstated in full force and effect.
4.1.5 Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein it shall continue not be entitled to be effective or be reinstated, as any right of subrogation in relation to the case may be, if at Noteholders in respect of any time payment, or any part thereof, obligations guaranteed hereby until payment in full of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwiseall obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders Noteholders and the Indenture Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 of the Trust Indenture for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee hereinthe Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 66 of the Trust Indenture, such Guaranteed Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by the Subsidiary Guarantors for the purpose of the Guarantees.
4.1.6 Notwithstanding anything contained in Sections 4.1.6 through 4.2, a Subsidiary Guarantor shall, without any further action required on the part of the Indenture Trustee or any Noteholder, (i) be automatically released from all of its obligations under its Guarantee, and (ii) no longer constitute a “Subsidiary Guarantor” for any purpose hereunder, upon the release or discharge of the guarantee of such Subsidiary Guarantor under both of the Credit Agreement and the Note Purchase Agreement. The Indenture Trustee shall promptly execute and deliver a release in writing in form and substance reasonably acceptable to the Partnership, together with all instruments and other documents reasonably requested by the Partnership to evidence the release and termination of any Guarantee of a Subsidiary Guarantor, upon receipt of a written request by the Partnership accompanied by a Certificate certifying that the release of such Guarantee was permitted by the first sentence of this Section 4.1.6.
4.1.7 Each Subsidiary Guarantor, and, by its acceptance of the Series B Notes, each Noteholder, hereby confirms that it is the intention of all such parties that the Guarantee of such Subsidiary Guarantor not constitute a fraudulent transfer, conveyance or preference, financial assistance or a transfer at under value, in each case for the purposes of any bankruptcy or insolvency law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, provincial, state or foreign law to the extent applicable to the Guarantee of such Subsidiary Guarantor. To effectuate the foregoing intention, the Indenture Trustee, the Noteholders and the Guarantors hereby irrevocably agree that the obligations of each Subsidiary Guarantor shall be limited to an amount not to exceed the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this SectionArticle 4 or Article 14 of the Trust Indenture, as applicable, result in the obligations of such Subsidiary Guarantor under its Guarantee not constituting a fraudulent conveyance, fraudulent transfer, preference, financial assistance, transaction at undervalue or abuse of corporate assets under applicable laws, including laws relating to the liability of directors and managers. Each Subsidiary Guarantor also agrees to pay any and that makes a payment under its Guarantee shall be entitled upon payment in full of all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights guaranteed obligations under this SectionIndenture to a contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
Appears in 1 contract
Sources: Second Supplemental Indenture (SmartStop Self Storage REIT, Inc.)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesSubject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of this Fourth Supplemental Indenture or this Indenture, the Notes held thereby and the Obligations of the Company hereunder and thereunder, that: (a) the full and punctual payment of principal of and premium, if any, and interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturityStated Maturity, by acceleration, by upon repurchase or redemption or otherwise, and interest on the overdue principal of and premium, if any, and (to the extent permitted by law) interest on the Notes, and all other monetary obligations payment Obligations of the Company under this Indenture to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the Notes terms hereof and thereof; and (b) the full and punctual performance within applicable grace periods in case of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise. Each Subsidiary Guarantor waives presentation toFailing payment when so due of any amount so guaranteed for whatever reason, demand of, payment from the Guarantors will be jointly and protest severally obligated to pay the same immediately. An Event of Default with respect to the Company Notes under this Indenture shall constitute an event of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Fourth Supplemental Indenture or this Indenture, the Guaranteed Obligationsabsence 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 a Guarantor. The obligations Each Guarantor further, to the extent permitted by law, hereby waives diligence, presentment, demand of each payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantor hereunder shall Guarantee will not be affected by: (a) discharged except by complete performance of the failure of Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to assert return to the Company, the Guarantors, or any claim Custodian, Trustee or demand other similar official acting in relation to either the Company or to enforce the Guarantors, any right or remedy against amount paid by the Company or any other Person under this IndentureGuarantor to the Trustee or such Holder, the Notes or Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to, and hereby waives, any other agreement or otherwise; (b) any extension or renewal right of subrogation in relation to the Holders in respect of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantorguaranteed hereby. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 Five of the Original Indenture for the purposes of such its Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed thereby, and (yb) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6Five of the Original Indenture, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary the Guarantor for the purposes purpose of this Sectionits Subsidiary Guarantee. Each 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 Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantees.
Appears in 1 contract
Sources: Fourth Supplemental Indenture (Whiting Petroleum Corp)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, on a senior secured basis, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of of, premium, if any, and interest on the Notes Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Notes Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes Securities (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor Guarantor, and that such Subsidiary Guarantor will remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Obligation. Any term or provision of this Indenture to the contrary notwithstanding, the maximum aggregate amount of the obligations guaranteed hereunder by any Subsidiary Guarantor shall not exceed the maximum amount that can be hereby guaranteed without rendering this Indenture, as it relates to such Subsidiary Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; or (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Sections 5.01(b), 8.01(b) and 10.06, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the 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 such 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 of, premium, if any, or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of, premium, if any, or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (iii) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations guaranteed hereby until payment in full in cash of all Guaranteed Obligations. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 VI for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionSection 10.01.
Appears in 1 contract
Sources: Indenture (Rite Aid Corp)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severallyseverally with each other Guarantor, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and Obligations (such guaranteed Obligations, the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “"Guaranteed Obligations”"). Each Subsidiary Guarantor further agrees (to the extent permitted by law) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor it, and that such Subsidiary Guarantor it will remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Obligation. Each 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.
(b) Each Guarantor waives presentation to, demand of, of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (bii) any extension or renewal of any thereof; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (div) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (ev) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the ObligationsGuarantor; or (fvi) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. the Company.
(c) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
(d) 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 affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) 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 Guaranteed Obligation of the Obligations is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. .
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against each Guarantor by virtue hereof, upon the failure of the Company to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders an amount equal to the 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).
(g) Each Subsidiary Guarantor further agrees that, as between itsuch Guarantor, on the one hand, and the Holders and the TrusteeHolders, on the other hand, :
(xi) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 this Indenture for the purposes of such Subsidiary Guarantor’s its Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and Obligations guaranteed hereby; and
(yii) in the event of any such declaration of acceleration of such Guaranteed Obligations as provided in Article 6Obligations, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each its Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantee.
Appears in 1 contract
Sources: Indenture (Movie Gallery Inc)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, severally irrevocably and unconditionally guarantees to each Holder and to the Trustee Trustees and its their respective successors and assigns (ai) the full and punctual payment of principal of and interest on the Notes when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustees) and the Notes, whether for payment of principal of, or interest on in respect of the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (bii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Subsidiary Guarantor Guarantor, and that each such Subsidiary Guarantor will shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. .
(b) Each Subsidiary Guarantor waives presentation to, demand of, of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (ai) the failure of any Holder or the Trustee Trustees to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; , (bii) any extension or renewal of any thereof; , (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; , (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (eiv) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; Guaranteed Obligations or (fvi) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor.
(c) Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have the assets of the Company first be used and depleted as payment of the Company’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee Trustees to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Section 8.1(b), 10.2 and 10.6, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustees to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(f) Subject to Section 10.6, each Guarantor agrees that its Subsidiary Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Subsidiary Guarantor further agrees agrees, subject to Section 10.6, 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee Trustees upon the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustees have at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustees, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustees an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (iii) all other monetary obligations of the Company to the Holders and the Trustees.
(h) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment or discharge in full of all Guaranteed Obligations other than obligations for fees and expenses. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the TrusteeTrustees, on the other hand, (xi) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s any Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Section 10.1.
(i) Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee Trustees or any Holder in enforcing any rights under this SectionSection 10.1.
(j) Upon request of the Trustees, each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
Appears in 1 contract
Sources: Indenture (Open Text Corp)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesSubject to Section 10.06 hereof, the Guarantors 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 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 full and punctual payment of principal of and premium, interest and Liquidated Damages, if any, on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration, by redemption or otherwise, and interest on the overdue principal, premium, (to the extent permitted by law) interest and Liquidated Damages, if any, on the Notes, and all other monetary obligations payment Obligations of the Company under this Indenture to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the Notes terms hereof and thereof; and (b) the full and punctual performance within applicable grace periods in case of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration, redemption or otherwise. Each Subsidiary Guarantor waives presentation to, demand of, Failing payment from and protest to the Company when so due of any amount so guaranteed or any performance so guaranteed for whatever reason the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Guaranteed Obligations and also waives notice Notes shall constitute an event of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the Guaranteed Obligationsabsence 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 a Guarantor. The obligations Each Guarantor further, to the extent permitted by law, hereby waives diligence, presentment, demand of each payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Subsidiary Guarantor hereunder shall Guarantee will not be affected by: (a) discharged except by complete performance of the failure of Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to assert return to the Company, the Guarantors, or any claim Custodian, Trustee or demand other similar official acting in relation to either the Company or to enforce the Guarantors, any right or remedy against amount paid by the Company or any other Person under this IndentureGuarantor to the Trustee or such Holder, the Notes or Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to, and hereby waives, any other agreement or otherwise; (b) any extension or renewal right of subrogation in relation to the Holders in respect of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantorguaranteed hereby. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of such its Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed thereby, and (yb) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 66 hereof, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary the Guarantor for the purposes purpose of this Sectionits Subsidiary Guarantee. Each 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 Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantees.
Appears in 1 contract
Sources: Indenture (Frontier Oil Corp /New/)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesGuarantor, jointly and severally, hereby unconditionally guarantees to each Holder of a Debenture authenticated and delivered by the Trustee and to the Trustee and its their respective successors and assigns assigns, irrespective of the validity and enforceability of this Indenture, the Debentures or the obligations of the Company hereunder or thereunder, that: (a) the principal of and any premium and interest on the Debentures shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and punctual payment of interest on the overdue principal of and interest on premium and interest on the Notes when dueDebentures, whether at maturityif any, by acceleration, by redemption or otherwiseif lawful, and all other monetary obligations of the Company under this Indenture and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and the Notes thereof; and (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, b) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationDebentures 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 maturity, by acceleration or otherwise. Each Subsidiary Guarantor waives presentation to, demand of, Failing payment from and protest to the Company 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. The Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the Guaranteed Obligations and also waives notice validity, regularity or enforceability of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes Debentures or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other agreement circumstance which might otherwise constitute a legal or otherwise; (b) any extension equitable discharge or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee hereby waives diligence, presentment, demand of payment, performance and compliance when due (and not filing of claims with a guarantee court in the event of collection) and waives insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that any resort this Subsidiary Guarantee shall not be had discharged (other than in accordance with Article Four or Section 1404 of this Indenture) except by complete performance of the obligations contained in the Debentures and this Indenture. If any Holder or the Trustee is required by any court or otherwise to any security held for payment of return to the Guaranteed Obligations. Each Company or 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 paymentGuarantors, or any part thereofcustodian, of principal of trustee, liquidator or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of other similar official acting in relation to either the Company or otherwiseSubsidiary 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 further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 Five for the purposes of such this Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, obligations guaranteed hereby and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6Five, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. In order to provide for just and equitable contribution among the Subsidiary Guarantors, in the event any payment or distribution is made by any Subsidiary Guarantor (a "Funding Subsidiary Guarantor") under its Subsidiary Guarantee, such Funding Subsidiary Guarantor shall be entitled to a contribution from each other Subsidiary Guarantor in a pro rata amount based on the Adjusted Net Assets of each Subsidiary Guarantor (including the Funding Subsidiary Guarantor) for all payments, damages and expenses incurred by the purposes of this SectionFunding Subsidiary Guarantor in discharging the Company's obligations with respect to the Debentures or any other Subsidiary Guarantor's obligations with respect to any Subsidiary Guarantee. Each Subsidiary Guarantor also agrees that it will not be entitled to pay exercise any and right of subrogation or contribution in relation to the Holders of Debentures in respect of any obligations guaranteed hereby until payment in full of all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights amounts guaranteed under this SectionSection 1401.
Appears in 1 contract
Sources: Third Supplemental Indenture (Pride International Inc)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteeshereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and to delivered by the Trustee and its successors and assigns that: (ai) the full and punctual payment of principal of of, premium, if any, and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, to the extent lawful, and all other monetary obligations Obligations of the Company to the Holders or the Trustee under this Indenture and the Notes will be promptly paid in full, all in accordance with the terms of this Indenture and the Notes; and (bii) in case of any extension of time of payment of any Notes or any of such other Obligations, that the Notes will be promptly paid in full and punctual performance within applicable grace periods when due in accordance with the terms of all other obligations of such extension or renewal, whether at Stated Maturity, by acceleration or otherwise. In the event that the Company fails to pay any amount guaranteed by the Subsidiary Guarantors for any reason whatsoever, the Subsidiary Guarantors will be jointly and severally obligated to pay such amount immediately. The Subsidiary Guarantors hereby further agree that their Obligations under this Indenture and the Notes (all shall be unconditional, regardless of the foregoing being hereinafter collectively called validity, regularity or enforceability of this Indenture or the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that Notes, the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal absence of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation action to enforce this Indenture or the Notes, any waiver or consent by any Holder with respect to any provisions of this Indenture or the Notes, any modification or amendment of, or supplement to, demand ofthis Indenture or the Notes, payment from and protest to the Company recovery of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy judgment against the Company or any other Person under this Indentureaction to enforce any such judgment, the Notes or any other agreement circumstance that might otherwise constitute a legal or otherwise; (b) any extension equitable discharge or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further agrees hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee herein constitutes a guarantee of payment, the Company’s Obligations under this Indenture and the Notes will not be discharged except by complete performance and compliance when due (and not a guarantee by the Company or another Guarantor of collection) and waives any right to require that any resort be had by such Obligations. If any Holder or the Trustee is required by any court or otherwise to return to the Company, any security held for payment Subsidiary Guarantor or a Custodian of the Guaranteed ObligationsCompany or a Subsidiary Guarantor any amount paid by the Company or any Subsidiary Guarantor to the Trustee or such Holder, the Subsidiary Guarantee of the Company’s Obligations under this Indenture and the Notes by each Subsidiary Guarantor shall, to the extent previously discharged as a result of any such payment, be immediately reinstated and be in full force and effect. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further hereby acknowledges and agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Company’s Obligations under this Indenture and the Notes may be accelerated as provided in Article 6 VI for the purposes of such the Subsidiary Guarantor’s Subsidiary Guarantee herein, Guarantees notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsacceleration, and (y) in the event of any declaration of acceleration of such Guaranteed the Company’s Obligations under this Indenture and the Notes as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of the Subsidiary Guarantees.
(b) Each Subsidiary Guarantor hereby waives all rights of subrogation, contribution, reimbursement and indemnity, and all other rights, that such Subsidiary Guarantor for would have against the purposes Company at any time as a result of this Section. any payment in respect of its Subsidiary Guarantee (whether contractual, under Section 509 of the Bankruptcy Code, or otherwise).
(c) Each Subsidiary Guarantor that makes or is required to make any payment in respect of its Subsidiary Guarantee shall be entitled to seek contribution from the other Subsidiary Guarantors to the extent permitted by applicable law; provided that each Subsidiary Guarantor agrees that any such claim for contribution that such Subsidiary Guarantor may have against any other Subsidiary Guarantor shall be subrogated to the prior payment in full in cash of all Obligations owed to Holders under or in respect of the Notes.
(d) Upon the sale or disposition (whether by merger, stock purchase, asset sale or otherwise) of a Subsidiary Guarantor (or substantially all of its assets) to a Person which is not the Company or a Subsidiary of the Company, which is otherwise in compliance with this Indenture, such Subsidiary Guarantor shall be deemed released from all its obligations under its Subsidiary Guarantee; provided that any such termination shall occur only to the extent that all obligations of such Subsidiary Guarantor under all of its guarantees of, and under all of its pledges of assets or other security interests which secure, other Indebtedness of the Company shall also terminate upon such release, sale or transfer.
(e) Each Subsidiary Guarantor may consolidate with or merge into or sell its assets to the Company or another Subsidiary Guarantor without limitation. A Subsidiary Guarantor may consolidate with or merge into or sell its assets to a corporation other than the Company or another Subsidiary Guarantor (whether or not affiliated with such Subsidiary Guarantor, but subject to the provisions described in Section 11.01(d)), provided that (a) if the Surviving Person is not the Subsidiary Guarantor, the Surviving Person agrees to pay any assume such Subsidiary Guarantor’s obligations under its Subsidiary Guarantee and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights its obligations under this SectionIndenture and (b) such transaction does not (i) violate any covenants set forth in this Indenture or (ii) result in a Default or Event of Default under this Indenture immediately thereafter that is continuing.
(f) The Subsidiary Guarantee of each Subsidiary Guarantor will be automatically and unconditionally released in connection with a Legal Defeasance or Covenant Defeasance of this Indenture or upon satisfaction and discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Gray Television Inc)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteeshereby, jointly and severally, unconditionally guarantees, on a senior unsecured basis, to each Holder of a Note authenticated and to delivered by the Trustee and its successors and assigns that: (ai) the full and punctual payment of principal of of, premium, if any, and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, to the extent lawful, and all other monetary obligations Obligations of the Company to the Holders or the Trustee under this Indenture and the Notes will be promptly paid in full, all in accordance with the terms of this Indenture and the Notes; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that the Notes will be promptly paid in full and punctual performance within applicable grace periods when due in accordance with the terms of all other obligations of such extension or renewal, whether at stated maturity, by acceleration or otherwise. In the event that the Company fails to pay any amount guaranteed by the Subsidiary Guarantors for any reason whatsoever, the Subsidiary Guarantors will be jointly and severally obligated to pay such amount immediately. The Subsidiary Guarantors hereby further agree that their Obligations under this Indenture and the Notes (all shall be unconditional and absolute, regardless of the foregoing being hereinafter collectively called validity, legality or enforceability of this Indenture or the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that Notes, the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal absence of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation action to enforce this Indenture or the Notes, any waiver or consent by any Holder with respect to any provisions of this Indenture or the Notes, any modification or amendment of, or supplement to, demand ofthis Indenture or the Notes, payment from and protest to the Company recovery of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy judgment against the Company or any other Person under this Indentureaction to enforce any such judgment, the Notes or any other agreement circumstance that might otherwise constitute a legal or otherwise; (b) any extension equitable discharge or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further agrees hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee herein constitutes a guarantee of payment, the Company's Obligations under this Indenture and the Notes will not be discharged except by complete performance and compliance when due (and not a guarantee by the Company or another Guarantor of collection) and waives any right to require that any resort be had by such Obligations. If any Holder or the Trustee is required by any court or otherwise to return to the Company, any security held for payment Subsidiary Guarantor or a Custodian of the Guaranteed ObligationsCompany or a Subsidiary Guarantor any amount paid by the Company or any Subsidiary Guarantor to the Trustee or such Holder, the Subsidiary Guarantee of the Company's Obligations under this Indenture and the Notes by each Subsidiary Guarantor shall, to the extent previously discharged as a result of any such payment, be immediately reinstated and be in full force and effect. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further hereby acknowledges and agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Company's Obligations under this Indenture and the Notes may be accelerated as provided in Article 6 VI for the purposes of such the Subsidiary Guarantor’s Subsidiary Guarantee herein, Guarantees notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsacceleration, and (y) in the event of any declaration of acceleration of such Guaranteed the Company's Obligations under this Indenture and the Notes as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of the Subsidiary Guarantees.
(b) Each Subsidiary Guarantor hereby waives all rights of subrogation, contribution, reimbursement and indemnity, and all other rights, that such Subsidiary Guarantor for would have against the purposes Company at any time as a result of this Section. any payment in respect of its Subsidiary Guarantee (whether contractual, under section 509 of the Bankruptcy Code, or otherwise).
(c) Each Subsidiary Guarantor that makes or is required to make any payment in respect of its Subsidiary Guarantee shall be entitled to seek contribution from the other Subsidiary Guarantors to the extent permitted by applicable law; provided that each Subsidiary Guarantor agrees that any such claim for contribution that such Subsidiary Guarantor may have against any other Subsidiary Guarantor shall be subrogated to the prior payment in full in cash of all Obligations owed to Holders under or in respect of the Notes.
(d) Upon the sale or disposition (whether by merger, stock purchase, asset sale or otherwise) of a Subsidiary Guarantor (or substantially all of its assets) to an entity which is not a Subsidiary of the Company, which is otherwise in compliance with this Indenture, such Subsidiary Guarantor shall be deemed released from all its obligations under its Subsidiary Guarantee; provided that any such termination shall occur only to the extent that all obligations of such Subsidiary Guarantor under all of its guarantees of, and under all of its pledges of assets or other security interests which secure, other Indebtedness of the Company shall also terminate upon such release, sale or transfer.
(e) Each Subsidiary Guarantor may consolidate with or merge into or sell its assets to the Company or another Subsidiary Guarantor without limitation. A Subsidiary Guarantor may consolidate with or merge into or sell its assets to a corporation other than the Company or another Subsidiary Guarantor (whether or not affiliated with such Subsidiary Guarantor, but subject to the provisions described in Section 10.01(d)), provided that (a) if the Surviving Person is not the Subsidiary Guarantor, the Surviving Person agrees to pay any assume such Subsidiary Guarantor's obligations under its Subsidiary Guarantee and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights its obligations under this SectionIndenture and (b) such transaction does not (i) violate any covenants set forth in this Indenture or (ii) result in a Default or Event of Default under this Indenture immediately thereafter that is continuing.
Appears in 1 contract
Subsidiary Guarantees. (a) Each Subsidiary Guarantor Guarantor, upon becoming such, hereby jointly and severally irrevocably and unconditionally and irrevocably guarantees, jointly as a primary obligor and severallynot merely as a surety, to each Holder Noteholder and to the Trustee and its successors and assigns (ai) the full and punctual payment of principal of and interest on the Notes when due, whether at maturityStated Maturity, by acceleration, by redemption redemption, repurchase or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, Interest on, in respect of the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (bii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Subsidiary Guarantor, and that each such Subsidiary Guarantor and that such Subsidiary Guarantor will shall remain bound under this Article 10 16 notwithstanding any extension or renewal of any Guaranteed Obligation. .
(b) Each Subsidiary Guarantor waives presentation to, demand of, of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: by (ai) the failure of any Holder Noteholder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (bii) any extension or renewal of any thereof; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (div) the release of any security held by any Holder Noteholder or the Trustee for the Guaranteed Obligations or any of them; (ev) the failure of any Holder Noteholder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (fvi) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor.
(c) Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Subsidiary Guarantors, such that such Subsidiary Guarantor’s obligations would be less than the full amount claimed. Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have the assets of the Company first be used and depleted as payment of the Company’s or such Subsidiary Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Subsidiary Guarantor hereunder. Each Subsidiary Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Subsidiary Guarantor.
(d) Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder Noteholder or the Trustee to any security held for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 16.03 and 16.07, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Noteholder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, wilful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of any Subsidiary Guarantor as a matter of law or equity.
(f) Except as otherwise provided herein, each Subsidiary Guarantor agrees that its Subsidiary Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations. 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 Interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder Noteholder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. .
(g) In furtherance of the foregoing and not in limitation of any other right which any Noteholder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or Interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Noteholders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid Interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (iii) all other monetary obligations of the Company to the Noteholders and the Trustee.
(h) Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders Noteholders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 7 for the purposes of such Subsidiary Guarantor’s any Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed ObligationsObligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 67, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Section 16.02.
(i) Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder Noteholder in enforcing any rights under this SectionSection 16.02.
(j) Upon request of the Trustee, each Subsidiary Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
Appears in 1 contract
Sources: Indenture (Dress Barn Inc)
Subsidiary Guarantees. Each Subject to the provisions of this Article 10, the Subsidiary Guarantor Guarantors hereby fully and unconditionally and irrevocably guaranteesGuarantee, jointly and severally, on a senior basis to each Holder holder and to the Trustee and its successors and assigns (ai) the full and punctual payment of principal of and interest on the Notes when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under this Indenture (including obligations to the Trustee) and the Securities, whether for payment of principal of or interest (including any Additional Interest) on the Securities and all other monetary obligations of the Company under this Indenture and the Notes Securities and (bii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes Securities (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”"GUARANTEED OBLIGATIONS"). Each Subject to Section 10.02, the Subsidiary Guarantor Guarantors further agrees agree that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such the Subsidiary Guarantor Guarantors, and that such the Subsidiary Guarantor will Guarantors shall remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each To the extent permitted by law, each Subsidiary Guarantor waives presentation to, demand of, of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default Default under the Notes Securities or the Guaranteed Obligations. The obligations of each the Subsidiary Guarantor Guarantors hereunder shall not be affected by: by (ai) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes Securities or any other agreement or otherwise; (bii) any extension or renewal of any thereof; (ciii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (div) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (ev) the failure of any Holder holder or the Trustee to exercise any right or remedy against any other guarantor of the ObligationsSubsidiary Guarantor; or (fvi) except as set forth in Section 10.06, any change in the ownership of such the Subsidiary GuarantorGuarantors, except as provided in Section 10.02(b). Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee Guarantee of payment, performance and compliance when due (and not a guarantee Guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Each Except as expressly set forth in Section 10.02, the obligations of the Subsidiary Guarantor further agrees that its Guarantors hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Subsidiary Guarantee Guarantors herein shall continue to not be effective discharged or be reinstated, as impaired or otherwise affected by the case may be, if at any time payment, or any part thereof, failure of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon to assert any claim or demand or to enforce any remedy under this Indenture, the bankruptcy Securities or reorganization any other agreement, by any waiver or modification of the Company any thereof, by any default, failure or delay, willful or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on in the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect performance of the Guaranteed Obligations, and (y) 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 event risk of any declaration the Subsidiary Guarantors or would otherwise operate as a discharge of acceleration the Subsidiary Guarantors as a matter of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether law or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Sectionequity.
Appears in 1 contract
Subsidiary Guarantees. Each Subject to this Article 10, each of the Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesGuarantors, jointly and severally, hereby unconditionally guarantees to each Holder of a Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of this Indenture, the Securities or the obligations of the Company under this Indenture or the Securities, that: (a) the full and punctual payment of principal of and interest all amounts on the Notes Securities shall be promptly paid in full when due, whether at maturity, by acceleration, by redemption redemption, repurchase or otherwise, and all other monetary obligations of (to the Company under this Indenture extent permitted by law) interest on the overdue principal, premium, if any, and interest on the Notes Securities, if any, and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company to the Holders or the Trustee under this Indenture or the Securities shall be promptly paid in full or performed, all in accordance with the terms of this Indenture and the Notes Securities; and (all b) in case of any extension of time of payment or renewal of any Securities or any of such other obligations, the foregoing being hereinafter collectively called same shall be promptly paid in full when due or performed in accordance with the “Guaranteed Obligations”)terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed for whatever reason, the Subsidiary Guarantors shall be obligated to pay the same immediately whether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Article 6 hereof. Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes is a guarantee of payment, performance and compliance when due (payment and not a guarantee of collection) and . The Subsidiary Guarantors hereby agree that their 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, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Subsidiary Guarantor hereby waives diligence, presentment, demand for payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require that any resort a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that, subject to this Article 10, this Subsidiary Guarantee shall not be had discharged except by complete performance of the obligations contained in the Securities and this Indenture. If any Holder of Securities or the Trustee is required by any court or otherwise to return to the Company or the Subsidiary Guarantors, or any security held for payment of custodian, trustee, liquidator or other similar official acting in relation to either the Guaranteed ObligationsCompany or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, the Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein it shall continue not be entitled to be effective or be reinstated, as any right of subrogation in relation to the case may be, if at Holders of Securities in respect of any time payment, or any part thereof, Obligations guaranteed hereby until payment in full of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwiseall Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of such this Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, Obligations guaranteed hereby and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 66 hereof, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such 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 for so long as the purposes exercise of this Section. Each such right does not impair the rights of the Holders under the Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantees.
Appears in 1 contract
Sources: Indenture (Mediaamerica Inc)
Subsidiary Guarantees. Each Subject to the provisions of this Article 10, each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesGuarantor, jointly and severally, hereby irrevocably unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, that: (ai) the full principal of, premium, if any, interest and punctual payment of principal of and interest Liquidated Damages, if any, on the Notes shall be duly and punctually paid in full when due, whether at stated maturity, by acceleration, by redemption call for redemption, upon a Change of Control Offer, upon an Asset Sale Offer, pursuant to the Escrow Agreement or otherwise, and all other monetary obligations of interest on overdue principal, premium, if any, (to the Company under this Indenture extent permitted by law) interest on any interest, if any, and Liquidated Damages, if any, on the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company to Holders of Notes or the Trustee hereunder or under this Indenture and the Notes (including fees, expenses or otherwise) will be promptly paid in full or performed, all in accordance with the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewedterms hereof and thereof, (ii) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other obligations, 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 maturity, by acceleration, call for redemption, upon a Change of Control Offer, upon an Asset Sale Offer, pursuant to the Escrow Agreement or otherwise and (iii) the prompt payment of any and all costs and expenses (including reasonable attorneys' fees) incurred by the Trustee or any Holder of Notes in enforcing any rights hereunder or under the Notes. Each Failing payment when due of any amount so guaranteed or failing performance of any other obligation of the Company to the Holders of Notes, for whatever reason, each Subsidiary Guarantor waives presentation toshall be jointly and severally obligated to pay, demand or to perform or to cause the performance of, payment from and protest to the Company same immediately. An Event of any Default under this Indenture or the Notes shall constitute an event of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes Subsidiary Guarantees, and shall entitle the Trustee or the Guaranteed Obligations. The Holders of Notes to accelerate the obligations of each Subsidiary Guarantor hereunder in the same manner and to the same extent as the obligations of the Company. Each Subsidiary Guarantor hereby agrees that its obligations hereunder shall not be affected by: (a) unconditional, irrespective of the failure validity, regularity or enforceability of any Holder the Notes 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 absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any thereof, the entry of any judgment against the Company, any action to enforce the same or any other agreement circumstance which might otherwise constitute a legal or otherwise; (b) any extension equitable discharge or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance hereby waives and compliance when due relinquishes: (and not a guarantee of collectiona) and waives any right to require the Trustee, the Holders of Notes or the Company (each, a "Benefitted Party") to proceed against the Company, the Subsidiary Guarantors 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 Subsidiary Guarantor; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any resort 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 Indenture), 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 the Subsidiary Guarantors, the Company, any Benefitted Party, any creditor of the Subsidiary Guarantors, the Company or on the part of any other Person whomsoever in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Benefitted Party, including but not limited to an election to proceed against the Subsidiary Guarantors for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be had neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Benefitted Party's election, in any proceeding instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code. The Subsidiary Guarantors hereby covenant that the Subsidiary Guarantors shall not be discharged except by payment in full of all principal, premium, if any, interest and Liquidated Damages, if any, on the Notes and all other costs provided for under this Indenture or as provided in Section 8.02. If any Holder of Notes or the Trustee is required by any court or otherwise to return to either the Company or the Subsidiary Guarantors, or any trustee or similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by the Company or the Subsidiary Guarantors to the Trustee or such Holder of Notes, the Subsidiary Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect. Each of the Subsidiary Guarantors agrees that it shall not be entitled to any security held for right of subrogation in relation to the Holders of Notes in respect of any obligations guaranteed hereby until payment in full of the Guaranteed Obligationsall obligations guaranteed hereby. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee hereinhereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Guaranteed Obligationshereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 66 hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes purpose of this Section. Each its Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantee.
Appears in 1 contract
Subsidiary Guarantees. Each of the Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesGuarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the full and punctual payment of principal of and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations interest on the overdue principal of and interest on the Company under this Indenture Notes, if any, if lawful, and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture to the Holders or the Trustee hereunder 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 will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes (all or this Indenture, the foregoing being hereinafter collectively called absence of any action to enforce the “Guaranteed Obligations”)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 a guarantor. Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewedhereby waives diligence, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation topresentment, demand ofof payment, payment from and protest to filing of claims with a court in the Company event of any insolvency or bankruptcy of the Guaranteed Obligations Company, any right to require a proceeding first against the Company, protest, notice and also waives notice all demands whatsoever and covenant that this Subsidiary Guarantee will not be discharged except by complete performance of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the obligations contained in the Notes or the Guaranteed Obligationsand this Indenture. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of If any Holder or the Trustee is required by any court or otherwise to assert any claim or demand or return to enforce any right or remedy against the Company or any other Person under this IndentureSubsidiary Guarantors, the Notes or any Custodian, Trustee, liquidator or other agreement similar official acting in relation to either the Company or otherwise; (b) Subsidiary Guarantors, any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held amount paid by any Holder or either to the Trustee for or such Holder, this Subsidiary Guarantee, to the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth extent theretofore discharged, shall be reinstated in Section 10.06, any change in the ownership of such Subsidiary Guarantorfull force and effect. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and they shall not a guarantee of collection) and waives be entitled to any right of subrogation in relation to require that the Holders in respect of any resort be had by any Holder or the Trustee to any security held for obligations guaranteed hereby until payment in full of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwiseall obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 5 for the purposes of such this Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 65, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. Notwithstanding anything in this Article 14 to the contrary, the guaranty of each Subsidiary Guarantor shall be limited in amount to ninety-five percent (95%) of the net worth of such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantor.
Appears in 1 contract
Sources: Indenture (Shop at Home Inc /Tn/)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesThe Borrower may (but is not required to), jointly and severally, to each Holder and at any time upon three Business Days’ notice to the Trustee Administrative Agent, cause any of its Subsidiaries organized under the laws of the United States of America, any State thereof or the District of Columbia and not owned, directly or indirectly, by any “controlled foreign corporation” (within the meaning of Section 957(a) of the Code) in its successors chain of ownership to become a Guarantor (and, in the event any Subsidiary shall become an obligor or provide a Guarantee under the 364-Day Facility, the Borrower shall, substantially concurrently therewith, cause such Subsidiary to become a Guarantor), in each case, by such Subsidiary executing and assigns delivering to the Administrative Agent a Subsidiary Guarantee, together with such evidence of authority, secretary’s certificates and opinions (which may be opinions of in-house counsel) as the Administrative Agent may reasonably request. So long as no Default has occurred and is continuing (or would result from such release), (a) the full and punctual payment of principal of and interest on the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and if all other monetary obligations of the Company under Equity Interests in a Guarantor that are owned by the Borrower or any Subsidiary are sold or otherwise disposed of in a transaction or transactions permitted by this Indenture and the Notes and Agreement or (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewedif, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest immediately after giving effect to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder Guarantor’s Subsidiary Guarantee, all of the Indebtedness of the Non-Guarantor Subsidiaries is permitted under Section 6.01, then, in each case, promptly following the Borrower’s request, the Administrative Agent shall execute a release of such Guarantor from its Subsidiary Guarantee; provided that in the event such Guarantor shall have been an obligor or shall have provided a Guarantee under the 364-Day Facility, substantially concurrently therewith such Guarantor shall cease to be an obligor under the 364-Day Facility or the Trustee for Guarantee thereof under the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort 364-Day Facility shall be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall continue to be effective or be reinstatedreleased, as the case may be. In connection with an execution by the Administrative Agent of any such release, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization request of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on Administrative Agent the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity Borrower shall deliver a certificate of a Financial Officer of the Guaranteed Obligations may be accelerated Borrower as provided in Article 6 for to the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect satisfaction of the Guaranteed Obligations, and (y) requirements to such release set forth in the event immediately preceding sentence. Any execution and delivery of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred release documents by the Trustee Administrative Agent pursuant to this Section shall be without recourse or any Holder in enforcing any rights under this Sectionwarranty by the Administrative Agent.
Appears in 1 contract
Sources: Revolving Credit Agreement (Marathon Petroleum Corp)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesof the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder Series A Noteholder, irrespective of the validity and to enforceability of this Agreement, the Trustee and its successors and assigns Series A Notes or the obligations of the Company hereunder or thereunder, that: (a) the full and punctual payment of principal of and premium and interest on the Series A Notes shall be promptly paid in full when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, and all other monetary obligations interest on the overdue principal of (and any premium) and interest on the Company under this Indenture Series A Notes, if any, if lawful, and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture to the Series A Noteholders hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and the Notes thereof; and (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, b) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationSeries A 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 Maturity, by acceleration or otherwise. Each Subsidiary Guarantor waives presentation to, demand of, Failing payment from and protest to the Company when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the Guaranteed Obligations and also waives notice validity, regularity or enforceability of protest for nonpayment. Each Subsidiary Guarantor waives notice the Series A Notes or this Agreement, the absence of any default under action to enforce the Notes same, any waiver or consent by any Series A Noteholder with respect to any provisions hereof or thereof, the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure recovery of any Holder or judgment against the Trustee to assert Company, any claim or demand or action to enforce any right or remedy against the Company same or any other Person under this Indenture, the Notes circumstance which might otherwise constitute a legal or any other agreement equitable discharge or otherwise; (b) any extension or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary a Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee hereby waives diligence, presentment, demand of payment, performance and compliance when due (and not filing of claims with a guarantee court in the event of collection) and waives insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Series A Notes and this Agreement. If any resort be had Series A Noteholder is required by any Holder court or otherwise to return to the Trustee to any security held for payment of the Guaranteed Obligations. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall continue to be effective Company or be reinstated, as the case may be, if at any time paymentGuarantors, or any part thereofCustodian, of principal of trustee, liquidator or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of other similar official acting in relation to either the Company or otherwiseGuarantors, any amount paid by such Series A Noteholder, 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 Series A Noteholders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the TrusteeSeries A Noteholders, on the other hand, (xa) the maturity Maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 Section 10 for the purposes of such this Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, obligations guaranteed hereby and (yb) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6Section 10, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor the Guarantors for the purposes purpose of this SectionSubsidiary Guarantee. Each The Guarantors shall have the right to seek contribution from any nonpaying Guarantor so long as the exercise of such right does not impair the rights of the Series A Noteholders under the Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantees.
Appears in 1 contract
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees(a) Subject to this Article 8, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (ai) the full and punctual payment of principal of premium, if any, and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other monetary obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration pursuant to Section 6.02 hereof 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.
(b) Each Guarantor hereby 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. 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: (i) any right to require any of the Notes and Trustee, the Holders or the Company (beach a "Benefited Party"), as a condition of payment or performance by such Guarantor, to (A) proceed against the full and punctual performance within applicable grace periods Company, any other guarantor (including any other Guarantor) of all the obligations under the Subsidiary Guarantees or any other obligations 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 this Indenture and the Notes 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; (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees iii) any defense based upon any statute or rule of law which provides that the Guaranteed Obligations may obligation of a surety must be extended 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 renewedomissions 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 whole conflict with the terms of the Subsidiary Guarantees and any legal or in partequitable discharge of such Guarantor's obligations hereunder, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal (B) the benefit of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation tostatute of limitations affecting such Guarantor's liability hereunder or the enforcement hereof, demand of(C) any rights to set-offs, payment from recoupments and protest to the Company counterclaims and (D) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (vi) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Guaranteed Obligations and also waives notice Subsidiary Guarantees, notices of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Guaranteed Obligationsobligations 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; (vii) to the extent permitted under applicable law, the benefits of any "One Action" rule and (viii) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the Subsidiary Guarantees. The obligations of Except as set forth in Section 8.6, each Guarantor hereby covenants that its Subsidiary Guarantor hereunder shall Guarantee will not be affected by: discharged except by complete performance of the obligations contained in its Guarantee and this Indenture.
(ac) the failure of If any Holder or the Trustee is required by any court or otherwise to assert return to the Company, the Guarantors or any claim custodian, trustee, liquidator or demand or other similar official acting in relation to enforce any right or remedy against either the Company or the Guarantors, any other Person under this Indentureamount paid by either to the Trustee or such Holder, any Subsidiary Guarantee, to the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescissionextent theretofore discharged, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; shall be reinstated in full force and effect.
(d) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the release Holders in respect of any security held by any Holder or the Trustee for the Guaranteed Obligations or any obligations guaranteed hereby until payment in full of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantorall obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 Section 6.02 hereof for the purposes of such any Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, obligations guaranteed hereby and (yii) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6Section 6.02 hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of any such Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor for so long as the purposes exercise of this Section. Each such right does not impair the rights of the Holders under the applicable Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantee.
Appears in 1 contract
Sources: Indenture (Grant Prideco Inc)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesSubject to the provisions of this Article 11, each Guarantor, jointly and severally, hereby unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, that: (a) the full principal of, and punctual payment of principal of premium, if any, Liquidated Damages, if any, and interest on the Notes will be duly and punctually paid in full when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, and all other monetary obligations of interest on overdue principal of, and premium, if any, Liquidated Damages, if any and (to the Company under this Indenture and extent permitted by law) interest on any interest, if any, on the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company to the Holders or the Trustee hereunder or under this Indenture and the Notes (including fees, expenses or other) will be promptly paid in full or performed, all in
(a) any right to require the foregoing being hereinafter collectively called Trustee, the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees Holders or the Company (each, a "Benefitted Party") to proceed against the Company, the Subsidiaries 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 Guarantors; (b) any defense that may arise by reason of the Guaranteed Obligations may be extended incapacity, lack of authority, death or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal disability of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation toother Person or Persons or the failure of a Benefitted Party to file or enforce a claim against the estate (in administration, demand of, payment from and protest to the Company bankruptcy or any other proceeding) of any of the Guaranteed Obligations other Person or Persons; (c) demand, protest and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default kind (except as expressly required by this Indenture), 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 the Guarantors, the Company, the Subsidiaries, any Benefitted Party, any creditor of the Guarantors, the Company or the Subsidiaries or on the part of any other Person whomsoever in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Benefitted Party, including but not limited to an election to proceed against the Guarantors for reimbursement; (e) 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; (f) any defense arising because of a Benefitted Party's election, in any proceeding instituted under the Notes Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 of the Guaranteed ObligationsBankruptcy Code. The obligations of each Guarantors hereby covenant that the Subsidiary Guarantor hereunder shall Guarantee will not be affected by: (a) discharged except by payment in full of all principal, premium, if any, Liquidated Damages, if any, and interest on the failure of Notes and all other costs provided for under this Indenture, or as provided in Section 8.01. If any Holder or the Trustee is required by any court or otherwise to assert any claim or demand or return to enforce any right or remedy against either the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 paymentGuarantors, or any part thereof, of principal of trustee or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of similar official acting in relation 79 81 to either the Company or otherwisethe Guarantors, any amount paid by the Company or the Guarantors to the Trustee or such Holder, the Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary of the Guarantors agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee hereinhereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 66 hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes purpose of this Section. Each the Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantee.
Appears in 1 contract
Subsidiary Guarantees. (a) Each Subsidiary Guarantor Guarantor, if any, hereby unconditionally and irrevocably guarantees, jointly and severally, fully and unconditionally guarantees the Notes and obligations of the Issuer hereunder and thereunder, and guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns Trustee, that: (ai) the full and punctual payment of principal of and premium, if any, and interest on the Notes shall be paid in full when due, whether at maturityStated Maturity, by acceleration, by call for redemption or otherwise, together with interest on the overdue principal, if any, and all other monetary obligations of interest on any overdue interest, to the Company under this Indenture extent lawful, and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company Issuer to the Holders or the Trustee under this Indenture and or the Notes shall be paid in full or performed, all in accordance with the terms hereof and thereof; and (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, ii) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationNotes or of any such other obligations, the same shall be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Each of the Subsidiary Guarantees, if any, shall be a guarantee of payment and not of collection.
(b) Each Subsidiary Guarantor, if any, 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 with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(c) Each Subsidiary Guarantor, if any, hereby waives the benefits of diligence, presentment, demand for payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer or any other Person, protest, notice and all demands whatsoever and covenants that the Subsidiary Guarantee of such Subsidiary Guarantor shall not be discharged as to any Note or this Indenture except by complete performance of the obligations contained in such Note and this Indenture and such Subsidiary Guarantee. Each of the Subsidiary Guarantors, if any, hereby agrees that, in the event of a Default in payment of principal or premium, if any, or interest on any Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Subsidiary Guarantors, if any, to enforce each such Subsidiary Guarantor’s Subsidiary Guarantee without first proceeding against the Issuer or any other Subsidiary Guarantor. Each Subsidiary Guarantor waives presentation toGuarantor, demand ofif any, payment from agrees that if, after the occurrence and protest to during the Company continuance of an Event of Default, the Trustee or any of the Guaranteed Obligations and also waives notice Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of protest for nonpayment. Each 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 waives notice shall pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any default of the Holders and any other amounts due and owing to the Trustee under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: this Indenture.
(ad) the failure of If any Holder or the Trustee is required by any court or otherwise to assert any claim or demand or return to enforce any right or remedy against the Company Issuer or any Subsidiary Guarantor, or any custodian, trustee, liquidator or other Person under this Indenturesimilar official acting in relation to the Issuer or any Subsidiary Guarantor, any amount paid by any of them to the Trustee or such Holder, the Notes Subsidiary Guarantee of each of the Subsidiary Guarantors, if any, to the extent theretofore discharged, shall be reinstated in full force and effect. Section 10.1(d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any other agreement or otherwise; (bHolder in reliance upon such amount required to be returned. This Section 10.1(d) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of shall survive the terms or provisions termination of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; .
(e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Each Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 paymentany, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between iteach Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 VI for the purposes of the Subsidiary Guarantee of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6VI, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by each Subsidiary Guarantor, if any, for the purpose of the Subsidiary Guarantee of such Subsidiary Guarantor for the purposes of this Section. Guarantor.
(f) Each Subsidiary Guarantor also agrees to pay any and that makes a payment for distribution under its Subsidiary Guarantee is entitled upon payment in full of all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights guaranteed obligations under this SectionIndenture to seek contribution from each other Subsidiary Guarantor in a pro rata amount of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment in accordance with GAAP.
Appears in 1 contract
Sources: Indenture (Newell Brands Inc.)
Subsidiary Guarantees. Each Subject to the provisions of this Article 10, each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesGuarantor, jointly and severally, hereby unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, that: (a) the full principal of, and punctual payment of principal of premium, if any, and interest on the Notes shall be duly and punctually paid in full when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, and all other monetary obligations of interest on overdue principal, and premium, if any, and (to the Company under this Indenture and extent permitted by law) interest on any interest, if any, on the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company to the Holders or the Trustee hereunder or under this Indenture and the Notes (including fees, expenses or other) shall be promptly paid in full or performed, all in accordance with the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, terms hereof; and (b) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other obligations, 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 maturity, by acceleration or otherwise. Each Failing payment when due of any amount so guaranteed or failing performance of any other obligation of the Company to the Holders, for whatever reason, each Subsidiary Guarantor waives presentation toshall be obligated to pay, demand or to perform or to cause the performance of, payment from and protest to the Company same immediately. An Event of any Default under this Indenture or the Notes shall constitute an event of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under this Subsidiary Guarantee, and shall entitle the Notes Trustee or the Guaranteed Obligations. The Holders of Notes to accelerate the obligations of each Subsidiary Guarantor hereunder in the same manner and to the same extent as the obligations of the Company. Each Subsidiary Guarantor hereby agrees that its obligations hereunder shall not be affected byunconditional, 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 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 a Guarantor. Each Subsidiary Guarantor hereby waives and relinquishes: (a) any right to require the Trustee, the Holders or the Company (each, a "Benefitted Party") to proceed against the Company, the Subsidiaries 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 Subsidiary Guarantors; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability 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 Indenture), 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 the Subsidiary Guarantors, the Company, the Subsidiaries, any Benefitted Party, any creditor of the Subsidiary Guarantors, the Company or the Subsidiaries or on the part of any other Person whomsoever in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Benefitted Party, including but not limited to an election to proceed against the Subsidiary Guarantors for reimbursement; (e) 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; (f) any defense arising because of a Benefitted Party's election, in any proceeding instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code. The Subsidiary Guarantors hereby covenant that the Subsidiary Guarantees shall not be discharged except by payment in full of all principal, premium, if any, and interest on the Notes and all other costs provided for under this Indenture, or as provided in Section 8.02. If any Holder or the Trustee is required by any court or otherwise to assert any claim or demand or return to enforce any right or remedy against either the Company or the Subsidiary Guarantors, or any other Person under this Indenturetrustee or similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by the Company or the Subsidiary Guarantors to the Trustee or such Holder, the Notes or Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each of the Subsidiary Guarantors agrees that it shall not be entitled to any other agreement or otherwise; (b) any extension or renewal right of subrogation in relation to the Holders in respect of any thereof; (c) any rescission, waiver, amendment or modification obligations guaranteed hereby until payment in full of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantorall obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee hereinhereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 66 hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes purpose of this Section. Each the Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantee.
Appears in 1 contract
Sources: Indenture (Wavetek U S Inc)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees(a) Subject to this Article Fourteen, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a 6 ⅞% Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, irrespective of the validity and enforceability of the 6 ⅞% Notes or the obligations of the Company hereunder or thereunder, that:
(a1) the full and punctual payment of principal of of, premium, if any, and interest on on, the 6 ⅞% Notes will be promptly paid in full when due, whether at final maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of interest on any overdue principal of, premium, if any, and interest on the Company under this Indenture 6 ⅞% Notes, if lawful, and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and the Notes thereof; and
(all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, 2) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the 6 ⅞% Notes or any of such other agreement obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at final maturity, by acceleration, redemption or otherwise; (b) any extension or renewal . Failing payment when due of any thereof; (c) amount so guaranteed or any rescission, waiver, amendment or modification of any of the terms or provisions of this Indentureperformance so guaranteed for whatever reason, the Notes or any other agreement; (d) Guarantors will be jointly and severally obligated to pay the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantorsame immediately. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes this is a guarantee of payment, performance and compliance when due (payment and not a guarantee of collection.
(b) and The Guarantors hereby agree that their obligations hereunder are, to the extent permitted by applicable law, unconditional, irrespective of the validity, regularity or enforceability of the 6 ⅞% Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the 6 ⅞% 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 guarantor. To the extent permitted by applicable law, each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that any resort this Subsidiary Guarantee will not be had discharged except by complete performance of the obligations contained in the 6 ⅞% Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to any security held for payment of return to the Guaranteed Obligations. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall continue to be effective or be reinstatedCompany, as the case may be, if at any time payment, Guarantors or any part thereofcustodian, of principal of trustee, liquidator or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of other similar official acting in relation to either the Company or otherwisethe Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, to the extent permitted by applicable law, as between itthe Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x1) the maturity Maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 Five of this Indenture for the purposes of such this Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (y2) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6Five of this Indenture, such Guaranteed Obligations obligations (whether or not due and payable) shall will forthwith become due and payable by such Subsidiary Guarantor the Guarantors for the purposes purpose of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantee.
Appears in 1 contract
Sources: First Supplemental Indenture (Frontier Oil Corp /New/)
Subsidiary Guarantees. Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, fully, unconditionally and irrevocably guarantees the Notes and obligations of the Company hereunder and thereunder, and guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns on behalf of such Holder, that: (a) the full and punctual payment of principal of (and premium, if any) and interest on the Notes will be paid in full when due, whether at maturityStated Maturity, by acceleration, by call for redemption or otherwiseotherwise (including, without limitation, the amount that would become due but for the operation of the automatic stay under Section 362(a) of the Federal Bankruptcy Code), together with interest on the overdue principal, if any, and all other monetary obligations of interest on any overdue interest, to the Company under this Indenture extent lawful, and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture to the Holders or the Trustee hereunder or thereunder will be 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 of any such other obligations, the Notes same will be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise, subject, however, in the case of clauses (all a) and (b) above, to the foregoing being hereinafter collectively called limitations set forth in Section 1306 hereof. Each of the “Guaranteed Obligations”)Subsidiary Guarantees shall be a guarantee of payment and not of collection. Each Subsidiary Guarantor further hereby agrees that its obligations hereunder shall be unconditional, irrespective of the Guaranteed Obligations may be extended validity, regularity or renewedenforceability of the Notes or this Indenture, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal the absence of any Guaranteed Obligationaction 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 a Subsidiary Guarantor. Each Subsidiary Guarantor hereby waives presentation tothe benefits of diligence, presentment, demand offor payment, payment from and protest to filing of claims with a court in the Company event of any insolvency or bankruptcy of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce Company, any right or remedy to require a proceeding first against the Company or any other Person under Person, protest, notice and all demands whatsoever and covenants that the Subsidiary Guarantee of such Subsidiary Guarantor will not be discharged as to any Note except by complete performance of the obligations contained in such Note and such Subsidiary Guarantee or as provided for in this Indenture. Each of the Subsidiary Guarantors hereby agrees that, in the event of a default in payment of principal (or premium, if any) or interest on such Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Notes Subsidiary Guarantors to enforce such Subsidiary Guarantor's Subsidiary Guarantee without first proceeding against the Company or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Subsidiary Guarantee herein constitutes a guarantee Guarantor will pay to the Trustee for the account of paymentthe Holders, performance upon demand therefor, the amount that would otherwise have been due and compliance when due (payable had such rights and not a guarantee remedies been permitted to be exercised by the Trustee or any of collection) and waives any right to require that any resort be had by the Holders. If any Holder or the Trustee is required by any court or otherwise to return to the Company or any security held for payment of the Guaranteed Obligations. 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 paymentGuarantor, or any part thereofcustodian, of principal of trustee, liquidator or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of other similar official acting in relation to either the Company or otherwiseany Subsidiary Guarantor, any amount paid by any of them to the Trustee or such Holder, the Subsidiary Guarantee of each of the Subsidiary Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor further agrees that, as between iteach Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 Five hereof for the purposes of the Subsidiary Guarantee of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6Five hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such each Subsidiary Guarantor for the purposes purpose of this Section. Each the Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantee of such Subsidiary Guarantor.
Appears in 1 contract
Subsidiary Guarantees. Each Subsidiary Guarantor hereby of the Guarantors hereby, jointly --------------------- and severally, unconditionally and irrevocably guarantees, jointly and severallyon a senior subordinated basis, to each Holder of a Note executed and to delivered by the Trustee Company, irrespective of the validity and its successors and assigns enforceability of this Agreement, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the full and punctual payment of principal of and interest premium and interest, including any Special Interest, if any, on the Notes shall be promptly paid in full when due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, and all other monetary obligations interest on the overdue principal of (and any premium) and interest and Special Interest on the Company under this Indenture Notes, if any, if lawful, and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture to the Holders hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and the Notes thereof; and (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, b) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationNotes 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 Maturity, by acceleration or otherwise. Each Subsidiary Guarantor waives presentation to, demand of, Failing payment from and protest to the Company when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the Guaranteed Obligations and also waives notice validity, regularity or enforceability of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or this Agreement, the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure absence of any Holder or the Trustee to assert any claim or demand or action to enforce the same, any right waiver or remedy consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company Company, any action to enforce the same or any other Person under this Indenture, the Notes circumstance which might otherwise constitute a legal or any other agreement equitable discharge or otherwise; (b) any extension or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantora guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee hereby waives diligence, presentment, demand of payment, performance and compliance when due (and not filing of claims with a guarantee court in the event of collection) and waives insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Agreement. If any resort be had Holder is required by any Holder court or otherwise to return to the Trustee to any security held for payment of the Guaranteed Obligations. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall continue to be effective Company or be reinstated, as the case may be, if at any time paymentGuarantors, or any part thereofCustodian, of principal of trustee, liquidator or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of other similar official acting in relation to either the Company or otherwiseGuarantors, any amount paid by 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 of Notes in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between itthe Guarantors, on the one hand, and the Holders and the TrusteeHolders, on the other hand, (xa) the maturity Maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 Section 11 for the purposes of such this Subsidiary Guarantor’s Subsidiary Guarantee hereinGuarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, obligations guaranteed hereby and (yb) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 6Section 11, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor the Guarantors for the purposes purpose of this SectionSubsidiary Guarantee. Each 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 Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantees.
Appears in 1 contract
Subsidiary Guarantees. Each of the undersigned (the "Subsidiary Guarantor Guarantors") hereby jointly and severally unconditionally and irrevocably guarantees, jointly and severally, to each Holder and to the extent set forth in the Indenture dated as of September 25, 2003 by and among Quintiles Transnational Corp., a North Carolina corporation, as issuer (the "Company"), the Subsidiary Guarantors, as guarantors, and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Trustee (as amended, restated or supplemented from time to time, the "Indenture"), and its successors and assigns subject to the provisions of the Indenture, (a) the full due and punctual payment of the principal of of, and premium, if any, and interest on the Notes Notes, when dueand as the same shall become due and payable, whether at maturity, by acceleration, by redemption acceleration or otherwise, the due and all other monetary obligations punctual payment of interest on overdue principal of, and premium and, to the Company under this Indenture extent permitted by law, interest, and the Notes and (b) the full due and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture to the Holders or the Trustee, all in accordance with the terms set forth in Article Ten of the Indenture, and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, b) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of Notes or any of such other obligations, that the Guaranteed Obligations and also waives notice same will be promptly paid in full when due or performed in accordance with the terms of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes extension or the Guaranteed Obligationsrenewal, whether at stated maturity, by acceleration or otherwise. The obligations of each the Subsidiary Guarantor hereunder shall not be affected by: (a) Guarantors to the failure of any Holder or Holders and to the Trustee pursuant to assert any claim or demand or to enforce any right or remedy against this Subsidiary Guarantee and the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as Indenture are expressly set forth in Section 10.06Article Ten of the Indenture, any change in and reference is hereby made to the ownership Indenture for the precise terms and limitations of this Subsidiary Guarantee. Each Holder of the Note to which this Subsidiary Guarantee is endorsed, by accepting such Subsidiary GuarantorNote, agrees to and shall be bound by such provisions. Each Subsidiary Guarantor further agrees Guarantee will be limited to an amount not to exceed the maximum amount that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort can be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable guaranteed by such Subsidiary Guarantor for after giving effect to all of its other contingent and fixed liabilities without rendering such Subsidiary Guarantee, as it relates to such Subsidiary Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the purposes rights of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Sectioncreditors generally.
Appears in 1 contract
Subsidiary Guarantees. Each In the event that a Subsidiary is required to become a Guarantor hereby pursuant to Section 4.11, then such Guarantor shall execute a supplement to this Indenture pursuant to Section 10.02 and upon such execution shall become a party to this Indenture, will have all the rights and be subject to all of the obligations of a Guarantor under this Indenture and agrees to be bound by all of the provisions of this Indenture applicable to a Guarantor, including this Article X and to perform all of the obligations and agreements of a Guarantor under this Indenture. Subject to the provisions of this Article X, each Guarantor fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severallyseverally with any other Guarantor, to each Holder and to of the Securities, the Trustee and its successors and assigns (a) the Collateral Agent, the full and punctual payment of principal of and interest on the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest (including Special Interest), if any, on the Securities and all other monetary obligations and liabilities of the Company under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the Notes and (bobligations under Section 7.07) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Guarantor Obligations”). Each Subsidiary Guarantor agrees that any Guarantor Obligations shall rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to any Guarantor Obligations. Each Guarantor further agrees (to the extent permitted by law) that the Guaranteed any Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor it, and that such Subsidiary Guarantor it will remain bound under this Article 10 X notwithstanding any extension or renewal of any Guaranteed Guarantor Obligation. Each Subsidiary Guarantor waives presentation to, demand of, of payment from and protest to the Company of any of the Guaranteed Guarantor Obligations and also waives notice of protest for nonpaymentnon-payment. Each Subsidiary Guarantor waives notice of any default under the Notes Securities or the Guaranteed any Guarantor Obligations. The 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 Holder to any security held for payment of any Guarantor Obligations. Except as set forth in Section 10.02, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of any Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of any Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by: 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 person under, this Indenture, the Notes Securities or any other agreement or otherwise; (b) any extension or renewal of any thereofgranted; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder Holder, the Trustee or the Trustee Collateral Agent for the Guaranteed any Guarantor Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the ObligationsGuarantor; or (f) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor. Each Subsidiary the Company; (g) any default, failure or delay, willful or otherwise, in the performance of any Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due Obligations; or (and not a guarantee of collectionh) and waives any right other act or thing or omission or delay to require that do any resort be had by other act or thing which may or might in any Holder manner or the Trustee to any security held for payment extent vary the risk of the Guaranteed Obligations. Each Subsidiary any Guarantor further agrees that its Subsidiary Guarantee herein shall continue to be effective or be reinstated, would otherwise operate as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes a discharge of such Subsidiary Guarantor’s Subsidiary Guarantee herein, notwithstanding any stay, injunction Guarantor as a matter of law or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section. Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Sectionequity.
Appears in 1 contract
Sources: Indenture (National CineMedia, LLC)
Subsidiary Guarantees. Each Subject to the provisions of this Article 10, each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesGuarantor, jointly and severally, hereby unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, that: (a) the full principal of, and punctual payment of principal of premium and interest and Additional Interest, if any, on the Notes shall be duly and punctually paid in full when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, and all other monetary obligations of interest on overdue principal, and premium, if any, and (to the Company under this Indenture and extent permitted by law) interest on any interest, if any, on the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company to the Holders or the Trustee hereunder or under this Indenture and the Notes (including fees, expenses or other) shall be promptly paid in full or performed, all in accordance with the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, terms hereof; and (b) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other obligations, 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 maturity, by acceleration or otherwise (collectively, the "Guarantee Obligations"). Each Failing payment when due of any Guarantee Obligation or failing performance of any other obligation of the Company to the Holders, for whatever reason, each Subsidiary Guarantor waives presentation toshall be obligated to pay, demand or to perform or to cause the performance of, payment from and protest to the Company same immediately. An Event of any Default under this Indenture or the Notes shall constitute an event of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under this Subsidiary Guarantee, and shall entitle the Notes Trustee or the Guaranteed Obligations. The obligations Holders of Notes to accelerate the Guarantee Obligations of each Subsidiary Guarantor hereunder in the same manner and to the same extent as the Obligations of the Company. Each Subsidiary Guarantor hereby agrees that its Guarantee Obligations hereunder shall not be affected by: (a) unconditional, irrespective of the failure validity, regularity or enforceability of any Holder the Notes 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 absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any thereof, the entry of any judgment against the Company, any action to enforce the same or any other agreement circumstance which might otherwise constitute a legal or otherwise; (b) any extension equitable discharge or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance hereby waives and compliance when due relinquishes: (and not a guarantee of collectiona) and waives any right to require the Trustee, the Holders or the Company (each, a "Benefitted Party") to proceed against the Company, the Subsidiaries 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 Subsidiary Guarantors; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any resort 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 Indenture), 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 the Subsidiary Guarantors, the Company, the Subsidiaries, any Benefitted Party, any creditor of the Subsidiary Guarantors, the Company or the Subsidiaries or on the part of any other Person whomsoever in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Benefitted Party, including but not limited to an election to proceed against the Subsidiary Guarantors for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be had neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Benefitted Party's election, in any proceeding instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code. The Subsidiary Guarantors hereby covenant that, except as otherwise provided therein, the Subsidiary Guarantees shall not be discharged except by payment in full of all Guarantee Obligations, including the principal, premium, if any, and interest on the Notes and all other costs provided for under this Indenture or as provided in Section 8.01. If any Holder or the Trustee is required by any court or otherwise to return to either the Company or the Subsidiary Guarantors, or any trustee or similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by the Company or the Subsidiary Guarantors to the Trustee or such Holder, the Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each of the Subsidiary Guarantors agrees that it shall not be entitled to any security held for right of subrogation in relation to the Holders in respect of any Guarantee Obligations hereby until payment in full of the Guaranteed Obligationsall such obligations. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee hereinhereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Guarantee Obligations, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 66 hereof, such Guaranteed Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes purpose of this Section. Each the Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantee.
Appears in 1 contract
Sources: Indenture (Foodmaker Inc /De/)
Subsidiary Guarantees. Each Subject to the provisions of this Article 12, each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteesGuarantor, jointly and severally, hereby unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns assigns, that: (a) the full principal of, and punctual payment of principal of premium, if any, and interest on the Notes shall be duly and punctually paid in full when due, whether at maturity, by acceleration, by redemption acceleration or otherwise, and all other monetary obligations of the Company under this Indenture interest on overdue principal, and premium, if any, on the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company to the Holders or the Trustee hereunder or under this Indenture and the Notes (including fees, expenses or other) shall be promptly paid in full or performed, all in accordance with the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, terms hereof; and (b) in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding case of any extension of time of payment or renewal of any Guaranteed ObligationNotes or any of such other obligations, 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 maturity, by acceleration or otherwise. Each Failing payment when due of any amount so guaranteed or failing performance of any other obligation of the Company to the Holders, for whatever reason, each Subsidiary Guarantor waives presentation toshall be obligated to pay, demand or to perform or to cause the performance of, payment from and protest to the Company same immediately. An Event of any Default under this Indenture or the Notes shall constitute an event of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under this Subsidiary Guarantee, and shall entitle the Notes Trustee or the Guaranteed Obligations. The Holders of Notes to accelerate the obligations of each Subsidiary Guarantor hereunder in the same manner and to the same extent as the obligations of the Company. Each Subsidiary Guarantor hereby agrees that its obligations hereunder shall not be affected by: (a) unconditional to the failure extent permitted by applicable laws, irrespective of any Holder the validity, regularity or enforceability of the Trustee to assert any claim Notes or demand or to enforce any right or remedy against the Company or any other Person under 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 thereof, the entry of any judgment against the Company, any action to enforce the same or any other agreement circumstance which might otherwise constitute a legal or otherwise; (b) any extension equitable discharge or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance hereby waives and compliance when due relinquishes: (and not a guarantee of collectiona) and waives any right to require the Trustee, the Holders or the Company (each, a "Benefitted Party") to proceed against the Company, its Subsidiaries 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 Subsidiary Guarantors; (b) any defense that may arise by reason of the lack of authority of any resort other Person or Persons or the failure of a Benefitted Party to file or enforce a claim against the estate (in 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 Indenture), 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 the Subsidiary Guarantors, the Company, the Subsidiaries of the Company, any Benefitted Party, any creditor of the Subsidiary Guarantors, the Company or the Subsidiaries of the Company or on the part of any other Person whomsoever in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Benefitted Party, including, but not limited to, an election to proceed against the Subsidiary Guarantors for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be had neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Benefitted Party's election, in any proceeding instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code. The Subsidiary Guarantors hereby covenant that the Subsidiary Guarantees shall not be discharged except by payment in full of all principal, premium, if any, and interest on the Notes and all other costs provided for under this Indenture, or as provided in Section 901. If any Holder or the Trustee is required by any court or otherwise to return to either the Company or the Subsidiary Guarantors, or any trustee or similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by the Company or the Subsidiary Guarantors to the Trustee or such Holder, the Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each of the Subsidiary Guarantors agrees that it shall not be entitled to any security held for right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of the Guaranteed Obligationsall obligations guaranteed hereby. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations obligations guaranteed hereby may be accelerated as provided in Article 6 7 hereof for the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee hereinhereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsobligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations obligations as provided in Article 67 hereof, such Guaranteed Obligations obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes purpose of this Section. Each the Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this SectionGuarantee.
Appears in 1 contract
Sources: Second Supplemental Indenture (Arcadia Financial LTD)
Subsidiary Guarantees. (a) Each Subsidiary Guarantor hereby unconditionally and irrevocably guaranteeshereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and to delivered by the Trustee and its successors and assigns that: (ai) the full and punctual payment of principal of of, premium, if any, and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, to the extent lawful, and all other monetary obligations Obligations of the Company to the Holders or the Trustee under this Indenture and the Notes will be promptly paid in full, all in accordance with and subject to the terms of this Indenture and the Notes; and (bii) in case of any extension of time of payment of any Notes or any of such other Obligations, that the Notes will be promptly paid in full and punctual performance within applicable grace periods when due in accordance with the terms of all other obligations of such extension or renewal, whether at Stated Maturity, by acceleration or otherwise. In the event that the Company fails to pay any amount guaranteed by the Subsidiary Guarantors for any reason whatsoever, the Subsidiary Guarantors will be jointly and severally obligated to pay such amount immediately. The Subsidiary Guarantors hereby further agree that their Obligations under this Indenture and the Notes (all shall be unconditional, regardless of the foregoing being hereinafter collectively called validity, regularity or enforceability of this Indenture or the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that Notes, the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal absence of any Guaranteed Obligation. Each Subsidiary Guarantor waives presentation action to enforce this Indenture or the Notes, any waiver or consent by any Holder with respect to any provisions of this Indenture or the Notes, any modification or amendment of, or supplement to, demand ofthis Indenture or the Notes, payment from and protest to the Company recovery of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by: (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy judgment against the Company or any other Person under this Indentureaction to enforce any such judgment, the Notes or any other agreement circumstance that might otherwise constitute a legal or otherwise; (b) any extension equitable discharge or renewal defense of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such a Subsidiary Guarantor. Each Subsidiary Guarantor further agrees hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee herein constitutes a guarantee of payment, the Company’s Obligations under this Indenture and the Notes will not be discharged except by complete performance and compliance when due (and not a guarantee by the Company or another Subsidiary Guarantor of collection) and waives any right to require that any resort be had by such Obligations. If any Holder or the Trustee is required by any court or otherwise to return to the Company, any security held for payment Subsidiary Guarantor or a Custodian of the Guaranteed ObligationsCompany or a Subsidiary Guarantor any amount paid by the Company or any Subsidiary Guarantor to the Trustee or such Holder, the Subsidiary Guarantee of the Company’s Obligations under this Indenture and the Notes by each Subsidiary Guarantor shall, to the extent previously discharged as a result of any such payment, be immediately reinstated and be in full force and effect. 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. Each Subsidiary Guarantor further hereby acknowledges and agrees that, as between itthe Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Company’s Obligations under this Indenture and the Notes may be accelerated as provided in Article 6 VI for the purposes of such the Subsidiary Guarantor’s Subsidiary Guarantee herein, Guarantees notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligationsacceleration, and (y) in the event of any declaration of acceleration of such Guaranteed the Company’s Obligations under this Indenture and the Notes as provided in Article 6VI, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of the Subsidiary Guarantees.
(b) Each Subsidiary Guarantor hereby waives all rights of subrogation, contribution, reimbursement and indemnity, and all other rights, that such Subsidiary Guarantor for would have against the purposes Company at any time as a result of this Section. any payment in respect of its Subsidiary Guarantee (whether contractual, under Section 509 of the Bankruptcy Code, or otherwise).
(c) Each Subsidiary Guarantor also that makes or is required to make any payment in respect of its Subsidiary Guarantee shall be entitled to seek contribution from the other Subsidiary Guarantors to the extent permitted by applicable law; provided that each Subsidiary Guarantor agrees that any such claim for contribution that such Subsidiary Guarantor may have against any other Subsidiary Guarantor shall be subrogated to the prior payment in full in cash of all Obligations owed to Holders under or in respect of the Notes.
(d) Each Subsidiary Guarantor may consolidate with or merge into or sell its assets to the Company or another Subsidiary Guarantor without limitation. A Subsidiary Guarantor may consolidate with or merge into or sell its assets to a corporation other than the Company or another Subsidiary Guarantor (whether or not affiliated with such Subsidiary Guarantor, but subject to the provisions described in Section 11.01(d)), provided that (a) if the Surviving Person is not the Subsidiary Guarantor, the Surviving Person agrees to pay any assume such Subsidiary Guarantor’s obligations under its Subsidiary Guarantee and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights its obligations under this SectionIndenture and (b) such transaction does not (i) violate any covenants set forth in this Indenture or (ii) result in a Default or Event of Default under this Indenture immediately thereafter that is continuing.
Appears in 1 contract
Sources: Indenture (Plantronics Inc /Ca/)