|
|
 | | | |
- close
- close
- close
- close
These excerpts taken from the AYR 8-K filed Jun 12, 2007. Section 11.01 Guarantee. The Guarantor hereby fully and unconditionally guarantees to each Holder of Securities, the Trustee on behalf of such Holder, each Service Provider, the Policy Provider, the Initial Credit Facility Provider, any Hedge Provider and each other Secured Party (each, a “Guaranteed Party” and, collectively, the “Guaranteed Parties”), in each case, the due and punctual performance of all obligations of the Issuer to each Guaranteed Party under the Securities, this Indenture and the Related Documents (the “Guaranteed Obligations”), all in accordance with this Indenture, the Securities and the other Related Documents. The liability of the Guarantor under this Guarantee is limited to the maximum amount that will result in the obligations of the Guarantor not constituting a fraudulent conveyance or fraudulent transfer under Applicable Law. This Guarantee shall be a Guarantee of payment and performance and not merely of collection only. The Guarantor hereby agrees that it shall not be required that any Guaranteed Party assert or enforce any rights against the Issuer or any other person before or as a condition to the obligation of the Guarantor subject to this Guarantee. The Guarantor hereby waives diligence, presentment, filing of claims with a court in the event of merger or bankruptcy of the Issuer or any other ACS Bermuda Group Member, any right to require a proceeding first against the Issuer or any other ACS Bermuda Group Member, the benefit of discussion, protest or notice with respect to any Security or the debt evidenced thereby and all demands whatsoever (except as specified above), and covenants that this Article XI shall not be discharged as to any such Security except by payment in full of the Guaranteed Obligations. The maturity of the Securities and related obligations guaranteed hereby may be accelerated as provided in Article IV for the purposes of this Article XI. In the event of any declaration of acceleration of such obligations as provided in Article IV of this Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Article XI. In addition, without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article IV of this Indenture, the Trustee shall be entitled to make a demand for payment on the Securities under the Guarantee provided for in this Article XI. The Guarantor hereby waives any claim or other claim or other rights which it may now or hereafter acquire against the Issuer or any other ACS Bermuda Group Member that arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under this Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, any right to participate in any claim or remedy of a Guaranteed Party against the Issuer or any other ACS Bermuda Group Member, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Issuer or any other ACS Bermuda Group
Member, directly or indirectly, in cash or other property or in any other manner, payment or security on account of such claim or other rights, until all of the Guarantor’s obligations under this Indenture have been satisfied. If any amount shall be paid to the Guarantor in violation of the preceding sentence and the Guaranteed Obligations shall not have been paid in full, such amount shall be deemed to have been paid to the Guarantor for the benefit of, and held in trust for the benefit of, such Guaranteed Party, and shall forthwith be paid to such Guaranteed Party. The Guarantor acknowledges that it will receive direct and indirect benefits from the issuance of the Securities pursuant to this Indenture and that the waiver set forth in this paragraph is knowingly made in contemplation of such benefits. Any right which at any time the Guarantor has under the existing or future laws of Ireland and Bermuda to require that recourse be had to the assets of the Issuer or any other ACS Ireland Group Member before any claim is enforced against the Guarantor in respect of the obligations hereby assumed by the Guarantor, is hereby abandoned and waived and the Guarantor undertakes that if at any time any Guaranteed Party sues the Guarantor in respect of any such obligations and the Issuer or any other ACS Bermuda Group Member is not sued also, the Guarantor shall not claim that the Issuer or any other ACS Bermuda Group Member be made a party to the proceedings and the Guarantor agrees to be bound by this guarantee whether or not the Guarantor is made party to legal proceedings for the recovery of the amount due or owing to such Guaranteed Party as aforesaid by the Issuer and whether the formalities required by any law of Bermuda whether existing or future in regard to the rights or obligations of sureties shall or shall not have been observed. Any right which the Guarantor may have under the existing or future laws of Ireland and Bermuda to require that any liability under this Guarantee be divided or apportioned with any other person or reduced in any manner whatsoever is hereby abandoned and waived. The Guarantee set forth in this Section 11.01 shall not be valid or become obligatory for any purpose with respect to the Guaranteed Obligations until the execution of this Indenture or, with respect to a Security, until the certificate of authentication on such Security shall have been signed by or on behalf of the Trustee. The Guarantees given by the Guarantor to the Guaranteed Parties pursuant to this Section 11.01 are, for purposes of this Article XI, hereinafter referred to as the “Guarantee”. Section 11.02 Reinstatement. The Guarantor hereby agrees that the guarantee provided for in Section 11.01 hereof shall continue to be effective or be reinstated, as the case may be, if at any time, payment, or any part thereof, of any obligations guaranteed or interest thereon is rescinded or must otherwise be restored by a Guaranteed Party to the Issuer upon the bankruptcy, reorganization or insolvency of the Issuer or the Guarantor or otherwise. Section 11.03 Unconditional Nature of Guarantee. The Guarantor hereby agrees that its obligations under the Guarantee shall be irrevocable and unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture or any other Related Document against the Issuer or any other ACS Bermuda Group Member, the absence of any action to enforce the Issuer’s or any other ACS Bermuda Group Member’s obligations under the Securities, this Indenture or any other Related Document, any waiver or consent by a Holder with respect to any provisions thereof or any provisions of this Indenture and the Related
Documents, any amendment to the terms under which the Securities are issued, any release of collateral related to the Securities or the Issuer’s or any other ACS Bermuda Group Member’s obligations under this Indenture or any other Related Document, the bankruptcy of the Issuer or any other ACS Bermuda Group Member or any circumstance with might otherwise constitute a legal or equitable discharge or defense of a guarantor; provided, however, that the Guarantor shall be entitled to exercise any right that the Issuer could have exercised under this Indenture to cure any default in respect of its obligations under this Indenture or the Securities, if any, but only to the extent such right, if any, is provided to the Issuer under this Indenture or the Securities. The Guarantor hereby waives each of the following to the fullest extent of the law: (i) all statutes of limitation as a defense to any action brought by any party against the Guarantor in connection with this Guarantee, (ii) any defense based upon (a) the lack of perfection or failure of priority of any security for the Guaranteed Obligations; (b) any act or omission of any Guaranteed Party that directly or indirectly results in the discharge or release of any Issuer or any other Person, or any of the obligations subject to this Guarantee or any security therefor; or (c) any other defense of the Issuer or any other Person with respect to the Guaranteed Obligations, whether consensual or arising by operation of law or any bankruptcy, insolvency or debtor-relief proceeding, or from any other cause, (iii) any right (whether now or hereafter existing) to require any Guaranteed Party, as a condition to the enforcement of this Guarantee, to (a) accelerate the Issuer’s obligations, (b) give notice to the Guarantor of the terms, time and place of any public or private sale of any security for the Guaranteed Obligations; or (c) exhaust any security for the Guaranteed Obligations, (iv) any right to presentment, demand, protest and notice of any kind, including, without limitation, notices of default and notices of acceptance of this Guarantee, (v) all suretyship defenses and rights of every nature otherwise available under New York law and the laws of any other jurisdiction, and (vi) all other rights and defenses, the assertion or exercise of which would in any way diminish the liability of the Guarantor hereunder. GUARANTEE Section 11.01 Guarantee. The Guarantor hereby fully and unconditionally guarantees to each Holder of Securities, the Trustee on behalf of such Holder, each Service Provider, the Policy Provider, the Initial Credit Facility Provider, any Hedge Provider and each other Secured Party (each, a “Guaranteed Party” and, collectively, the “Guaranteed Parties”), in each case, the due and punctual performance of all obligations of the Issuer to each Guaranteed Party under the Securities, this Indenture and the Related Documents (the “Guaranteed Obligations”), all in accordance with this Indenture, the Securities and the other Related Documents. The liability of the Guarantor under this Guarantee is limited to the maximum amount that will result in the obligations of the Guarantor not constituting a fraudulent conveyance or fraudulent transfer under Applicable Law. This Guarantee shall be a Guarantee of payment and performance and not merely of collection only. The Guarantor hereby agrees that it shall not be required that any Guaranteed Party assert or enforce any rights against the Issuer or any other person before or as a condition to the obligation of the Guarantor subject to this Guarantee. The Guarantor hereby waives diligence, presentment, filing of claims with a court in the event of merger or bankruptcy of the Issuer or any other ACS Ireland Group Member, any right to require a proceeding first against the Issuer or any other ACS Ireland Group Member, the benefit of discussion, protest or notice with respect to any Security or the debt evidenced thereby and all demands whatsoever (except as specified above), and covenants that this Article XI shall not be discharged as to any such Security except by payment in full of the Guaranteed Obligations. The maturity of the Securities and related obligations guaranteed hereby may be accelerated as provided in Article IV for the purposes of this Article XI. In the event of any declaration of acceleration of such obligations as provided in Article IV of this Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Article XI. In addition, without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article IV of this Indenture, the Trustee shall be entitled to make a demand for payment on the Securities under the Guarantee provided for in this Article XI. The Guarantor hereby waives any claim or other claim or other rights which it may now or hereafter acquire against the Issuer or any other ACS Ireland Group Member that arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under this Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, any right to participate in any claim or remedy of a Guaranteed Party against the Issuer or any other ACS Ireland Group Member, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Issuer or any other ACS Ireland Group
147
Member, directly or indirectly, in cash or other property or in any other manner, payment or security on account of such claim or other rights, until all of the Guarantor’s obligations under this Indenture have been satisfied. If any amount shall be paid to the Guarantor in violation of the preceding sentence and the Guaranteed Obligations shall not have been paid in full, such amount shall be deemed to have been paid to the Guarantor for the benefit of, and held in trust for the benefit of, such Guaranteed Party, and shall forthwith be paid to such Guaranteed Party. The Guarantor acknowledges that it will receive direct and indirect benefits from the issuance of the Securities pursuant to this Indenture and that the waiver set forth in this paragraph is knowingly made in contemplation of such benefits. Any right which at any time the Guarantor has under the existing or future laws of Ireland and Bermuda to require that recourse be had to the assets of the Issuer or any other ACS Ireland Group Member before any claim is enforced against the Guarantor in respect of the obligations hereby assumed by the Guarantor, is hereby abandoned and waived and the Guarantor undertakes that if at any time any Guaranteed Party sues the Guarantor in respect of any such obligations and the Issuer or any other ACS Ireland Group Member is not sued also, the Guarantor shall not claim that the Issuer or any other ACS Ireland Group Member be made a party to the proceedings and the Guarantor agrees to be bound by this guarantee whether or not the Guarantor is made party to legal proceedings for the recovery of the amount due or owing to such Guaranteed Party as aforesaid by the Issuer and whether the formalities required by any law of Ireland whether existing or future in regard to the rights or obligations of sureties shall or shall not have been observed. Any right which the Guarantor may have under the existing or future laws of Ireland and Bermuda to require that any liability under this Guarantee be divided or apportioned with any other person or reduced in any manner whatsoever is hereby abandoned and waived. The Guarantee set forth in this Section 11.01 shall not be valid or become obligatory for any purpose with respect to the Guaranteed Obligations until the execution of this Indenture or, with respect to a Security, until the certificate of authentication on such Security shall have been signed by or on behalf of the Trustee. The Guarantees given by the Guarantor to the Guaranteed Parties pursuant to this Section 11.01 are, for purposes of this Article XI, hereinafter referred to as the “Guarantee”. Section 11.02 Reinstatement. The Guarantor hereby agrees that the guarantee provided for in Section 11.01 hereof shall continue to be effective or be reinstated, as the case may be, if at any time, payment, or any part thereof, of any obligations guaranteed or interest thereon is rescinded or must otherwise be restored by a Guaranteed Party to the Issuer upon the bankruptcy, reorganization or insolvency of the Issuer or the Guarantor or otherwise. Section 11.03 Unconditional Nature of Guarantee. The Guarantor hereby agrees that its obligations under the Guarantee shall be irrevocable and unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture or any other Related Document against the Issuer or any other ACS Ireland Group Member, the absence of any action to enforce the Issuer’s or any other ACS Ireland Group Member’s obligations under the Securities, this Indenture or any other Related Document, any waiver or consent by a Holder with respect to any provisions thereof or any provisions of this Indenture and the Related
148
Documents, any amendment to the terms under which the Securities are issued, any release of collateral related to the Securities or the Issuer’s or any other ACS Ireland Group Member’s obligations under this Indenture or any other Related Document, the bankruptcy of the Issuer or any other ACS Ireland Group Member or any circumstance with might otherwise constitute a legal or equitable discharge or defense of a guarantor; provided, however, that the Guarantor shall be entitled to exercise any right that the Issuer could have exercised under this Indenture to cure any default in respect of its obligations under this Indenture or the Securities, if any, but only to the extent such right, if any, is provided to the Issuer under this Indenture or the Securities. The Guarantor hereby waives each of the following to the fullest extent of the law: (i) all statutes of limitation as a defense to any action brought by any party against the Guarantor in connection with this Guarantee, (ii) any defense based upon (a) the lack of perfection or failure of priority of any security for the Guaranteed Obligations; (b) any act or omission of any Guaranteed Party that directly or indirectly results in the discharge or release of any Issuer or any other Person, or any of the obligations subject to this Guarantee or any security therefor; or (c) any other defense of the Issuer or any other Person with respect to the Guaranteed Obligations, whether consensual or arising by operation of law or any bankruptcy, insolvency or debtor-relief proceeding, or from any other cause, (iii) any right (whether now or hereafter existing) to require any Guaranteed Party, as a condition to the enforcement of this Guarantee, to (a) accelerate the Issuer’s obligations, (b) give notice to the Guarantor of the terms, time and place of any public or private sale of any security for the Guaranteed Obligations; or (c) exhaust any security for the Guaranteed Obligations, (iv) any right to presentment, demand, protest and notice of any kind, including, without limitation, notices of default and notices of acceptance of this Guarantee, (v) all suretyship defenses and rights of every nature otherwise available under New York law and the laws of any other jurisdiction, and (vi) all other rights and defenses, the assertion or exercise of which would in any way diminish the liability of the Guarantor hereunder. | EXCERPTS ON THIS PAGE:
RELATED TOPICS for AYR: |
| |||||||
