Performance Guarantee. 19.1 The Performance Guarantor (A) hereby irrevocably, absolutely and unconditionally guarantees to the Purchaser, the Bank Purchasing Agent and the Bank Purchasers and their respective assignees the prompt performance when due of all obligations of the Servicer, the Originators and the Initial Purchaser hereunder and under each of the other Transaction Documents (including, without limitation, payment in full when due, whether at stated maturity, by acceleration or otherwise, of all amounts owing by the Servicer, the Originators or the Initial Purchaser to the Funding Seller, the Purchaser and the Bank Purchasing Agent) strictly in accordance with the terms hereof and thereof; and (B) accordingly agrees that, whenever the Servicer, any Originator or the Initial Purchaser shall fail to perform any such obligation when due hereunder or thereunder, the Performance Guarantor shall immediately perform, or cause to be performed, such obligation as if it were the principal obligor and regardless of the reason for such failure (such obligations being herein collectively referred to as the “TMUS Guaranteed Obligations”). For the avoidance of doubt, the Performance Guarantor shall have no obligation to guaranty (and does not guaranty) any obligations of the Funding Seller under the Transaction Documents. For the sake of clarity, it is expressly acknowledged that the TMUS Guaranteed Obligations do not include any act, inaction, obligation or liability of the Funding Seller to fully and punctually pay, perform or comply with any of the terms, covenants, conditions, agreements, undertakings and obligations on the part of the Funding Seller to be paid, performed or complied with by it under this Agreement, any other Transaction Document or any document entered into in connection with the foregoing. 19.2 The obligations of the Performance Guarantor under this Performance Guarantee will not be affected by: (a) any amendment (however fundamental) or replacement of this Agreement, the Conveyancing Agreement or any other document or security; (b) any Bankruptcy Event with respect to the Funding Seller, the Servicer, any Originator or any other Person. 19.3 The obligations of the Performance Guarantor under this Performance Guarantee are absolute and unconditional, irrespective of the validity or enforceability of any other section of this Agreement or any Transaction Document, the value of any collateral provided to the Bank Purchasing Agent or the Bank Collections Agent or the release or exchange of any such collateral. The Performance Guarantor waives any right it may have of first requiring the Bank Purchasing Agent or the Bank Collections Agent to proceed against, or enforce any other rights or security or claim from, any person before claiming from it under this guarantee. This waiver applies irrespective of any non-mandatory law or any provision of this Agreement to the contrary. 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 Performance Guarantor hereunder, which shall remain absolute and unconditional as described above: (a) at any time or from time to time, without notice to the Performance Guarantor, the time for any performance of or compliance with any of the obligations of the Servicer or an Originator under the Transaction Documents shall be waived; (b) any of the acts mentioned in any of the provisions of this Agreement or any other Transaction Document shall be done or omitted; (c) any of the TMUS Guaranteed Obligations shall be modified, supplemented or amended in any respect, or any right under this Agreement or any other Transaction Document shall be waived or any of the TMUS Guaranteed Obligations or any security therefore shall be released or exchanged in whole or in part or otherwise dealt with; or (d) any lien or security interest granted to, or in favor of, either of the Co-Agents as security for the TMUS Guaranteed Obligations shall fail to be effective or perfected. The Performance Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Bank Purchasing Agent exhaust any right, power or remedy or proceed against any Originator or the Servicer or against any other Person under any other agreement, or guarantee of, or security for, any of the TMUS Guaranteed Obligations. 19.4 The obligations of the Performance Guarantor under this Section 19 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Originator or the Servicer under this Agreement or any other Transaction Document is rescinded or must otherwise be restored by any holder of any of the TMUS Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and the Performance Guarantor agrees that it will indemnify the Bank Purchasing Agent on demand for all reasonable costs and expenses (including, without limitation, fees of counsel) incurred by the Bank Purchasing Agent in connection with such rescission or restoration, including any such costs or expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law. 19.5 The Performance Guarantor hereby waives all rights of subrogation or contribution, whether arising by contract or operation of law or otherwise by reason of any payment by it pursuant to the provisions of this Section 19. 19.6 The Performance Guarantor agrees that, as between the Performance Guarantor and any of the Purchasing Entities, the obligations of the Originators and the Servicer under this Agreement and each other Transaction Document may be declared to be forthwith due and payable as provided herein and therein (and shall be deemed to have become automatically due and payable as provided herein and therein) for the purposes of Section 19.1 hereof notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against any Originator or the Servicer and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by any Originator or the Servicer, as applicable) shall forthwith become due and payable by the Performance Guarantor for purposes of Section 19.1. 19.7 The guarantee in this Section 19 is a continuing guarantee, and shall apply to all TMUS Guaranteed Obligations whenever arising. 19.8 Without limiting or being limited by the foregoing, the Performance Guarantor shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting from either of the following: (a) any value added tax plus any interest and other ancillary Tax charges (A) applicable to the payment of the Servicer Fee, the supply of the services rendered by the Servicer or the sale of the Receivables and the Related Rights pursuant to this Agreement or the Onward Receivables Purchase Agreement or (B) arising as a result of a breach by the Funding Seller, the Servicer, the Performance Guarantor or any of their Affiliates of Section 7.1(l) (less any respective value added tax credits or deductions as are obtained by or credited to the Purchasing Entities, which credits or deductions shall be taken into account following the final and unchangeable determination thereof by the German tax authorities; whereby the Bank Purchaser shall take reasonable steps to receive eligible value added tax credits or deductions by filing respective returns); or (b) any Taxes, other than Excluded Taxes, payable by the Purchaser to the relevant German tax authorities if (contrary to the expectations of the parties hereto) the Purchaser is determined by the relevant German tax authorities to have a permanent establishment or other taxable presence located in the Federal Republic of Germany.
Appears in 3 contracts
Sources: Master Receivables Purchase Agreement (T-Mobile US, Inc.), Master Receivables Purchase Agreement (T-Mobile US, Inc.), Master Receivables Purchase Agreement (T-Mobile US, Inc.)
Performance Guarantee. 19.1 The Performance Guarantor (Aa) In consideration of Licensee entering into the License Agreement with Licensor, Scilex hereby irrevocablycovenants and agrees unconditionally with Licensee, absolutely its successors and unconditionally guarantees assigns that:
(i) Licensor shall properly, diligently and in good time observe the provisions of and perform and discharge any and all its obligations contained in or arising from the License Agreement, as supplemented and amended from time to time;
(ii) If Licensor defaults in any manner whatsoever in the Purchaser, the Bank Purchasing Agent due and the Bank Purchasers and their respective assignees the prompt proper performance when due of all obligations of the ServicerLicense Agreement, the Originators and the Initial Purchaser hereunder and under each or commits any breach of the other Transaction Documents (including, without limitation, payment in full when due, whether at stated maturity, by acceleration provisions thereof or otherwise, of all amounts owing by the Servicer, the Originators or the Initial Purchaser to the Funding Seller, the Purchaser and the Bank Purchasing Agent) strictly in accordance with the terms hereof and thereof; and (B) accordingly agrees that, whenever the Servicer, any Originator or the Initial Purchaser shall fail to perform any such obligation when due hereunder or thereunder, the Performance Guarantor shall immediately perform, or cause to be performed, such obligation as if it were the principal obligor and regardless of the reason for such failure (such obligations being herein collectively referred to as the “TMUS Guaranteed Obligations”). For the avoidance of doubt, the Performance Guarantor shall have no obligation to guaranty (and does not guaranty) any obligations of the Funding Seller under the Transaction Documents. For the sake of clarity, it is expressly acknowledged that the TMUS Guaranteed Obligations do not include any act, inaction, obligation or liability of the Funding Seller to fully and punctually pay, perform or comply with any of the termsduties above mentioned, covenantsScilex shall, conditionsforthwith upon written request from Licensee so to do, agreements, undertakings assume and properly and diligently perform and discharge any and all of said obligations or duties remaining unfulfilled; and
(iii) Scilex shall pay to Licensee on demand all monies due and owing by Licensor to Licensee under the part License Agreement or pursuant to any claim made by Licensee relating to or arising out of the Funding Seller to be paid, performed or complied with by it under this Agreement, any other Transaction Document or any document entered into in connection with the foregoing.
19.2 The obligations of the Performance Guarantor under this Performance Guarantee will not be affected by:
License Agreement (a) any amendment (however fundamental) or replacement of this Agreementcollectively, the Conveyancing Agreement or any other document or security;
(b) any Bankruptcy Event with respect to the Funding Seller, the Servicer, any Originator or any other Person.
19.3 The obligations of the Performance Guarantor under this Performance Guarantee are absolute and unconditional, irrespective of the validity or enforceability of any other section of this Agreement or any Transaction Document, the value of any collateral provided to the Bank Purchasing Agent or the Bank Collections Agent or the release or exchange of any such collateral. The Performance Guarantor waives any right it may have of first requiring the Bank Purchasing Agent or the Bank Collections Agent to proceed against, or enforce any other rights or security or claim from, any person before claiming from it under this guarantee. This waiver applies irrespective of any non-mandatory law or any provision of this Agreement to the contrary“Guarantee”). Without limiting the generality of the foregoing, it is agreed that Scilex and Licensor will be jointly and severally liable for any and all obligations and liabilities of Licensor under or in connection with the occurrence License Agreement.
(b) The Guarantee shall be a primary obligation of any one or more of the following Scilex and accordingly Licensee shall not alter be obliged before enforcing the Guarantee to take any action in court against Licensor, to make any claim against or impair the liability any demand of the Performance Guarantor hereunderLicensor, which shall remain absolute and unconditional as described above:
(a) at to enforce any time or from time to time, without notice to the Performance Guarantor, the time for any performance of or compliance with any other security held by it in respect of the obligations of the Servicer or an Originator Licensor under the Transaction Documents shall be waived;
(b) any of the acts mentioned in any of the provisions of this License Agreement or to exercise any other Transaction Document shall be done or omitted;diligence against Licensor.
(c) Scilex shall, on demand, indemnify and hold Licensee harmless from and against any of the TMUS Guaranteed Obligations shall be modified, supplemented or amended in any respect, or any right under this Agreement or any other Transaction Document shall be waived or any of the TMUS Guaranteed Obligations or any security therefore shall be released or exchanged in whole or in part or otherwise dealt with; or
(d) any lien or security interest granted to, or in favor of, either of the Co-Agents as security for the TMUS Guaranteed Obligations shall fail to be effective or perfected. The Performance Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoeverlosses and expenses, and any requirement that the Bank Purchasing Agent exhaust any right, power or remedy or proceed against any Originator or the Servicer or against any other Person under any other agreement, or guarantee of, or security for, any of the TMUS Guaranteed Obligations.
19.4 The obligations of the Performance Guarantor under this Section 19 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Originator or the Servicer under this Agreement or any other Transaction Document is rescinded or must otherwise be restored by any holder of any of the TMUS Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and the Performance Guarantor agrees that it will indemnify the Bank Purchasing Agent on demand for all reasonable costs and expenses whatsoever nature (including, without limitation, all legal fees and expenses), in any way connected with breach by Licensor of counsel) incurred its obligations contained in or arising from the License Agreement, and any supplement or amendments thereto, and/or breach by Scilex of the Bank Purchasing Agent in connection with such rescission duties described herein, whether or restoration, including not any such costs breach is caused, wholly or expenses incurred in defending against any claim alleging that such payment constituted a preferencepart, fraudulent transfer by negligence of Licensor or similar payment under any bankruptcy, insolvency or similar lawScilex.
19.5 (d) The Performance Guarantor hereby waives all Guarantee shall be in addition to, and not in substitution for, any rights of subrogation or contributionremedies that Licensee may have against Licensor arising under the License Agreement or otherwise, whether arising by contract or operation of law or otherwise and Scilex shall not be released from the obligations hereunder by reason of any payment time or forbearance granted by it Licensee to Licensor or Scilex.
(e) Any material breach of the Side Letter (including the Guarantee) by Scilex shall constitute a material breach by Licensor of the License Agreement.
(f) In the event of any Claim or dispute arising out of or relating to the Guarantee, the provisions of the License Agreement with regard to applicable law and conflict resolution shall apply as if fully repeated herein. An award obtained pursuant to the provisions of this Section 19License Agreement by Licensee against Licensor shall also be binding on Scilex.
19.6 The Performance Guarantor (g) Scilex agrees that, as between that the Performance Guarantor Guarantee and any of the Purchasing Entities, the Scilex’s obligations of the Originators and the Servicer under this Agreement Article I are irrevocable, continuing, absolute, and each other Transaction Document unconditional and will not be reduced, discharged or otherwise adversely affected, and Scilex hereby irrevocably waives any defenses to enforcement it may be declared to be forthwith due and payable as provided herein and therein have (and shall be deemed to have become automatically due and payable as provided herein and therein) for the purposes of Section 19.1 hereof notwithstanding any stay, injunction now or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against any Originator or the Servicer and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by any Originator or the Servicer, as applicablefuture) shall forthwith become due and payable by the Performance Guarantor for purposes of Section 19.1thereto.
19.7 The guarantee in this Section 19 is a continuing guarantee, and shall apply to all TMUS Guaranteed Obligations whenever arising.
19.8 Without limiting or being limited by the foregoing, the Performance Guarantor shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting from either of the following:
(a) any value added tax plus any interest and other ancillary Tax charges (A) applicable to the payment of the Servicer Fee, the supply of the services rendered by the Servicer or the sale of the Receivables and the Related Rights pursuant to this Agreement or the Onward Receivables Purchase Agreement or (B) arising as a result of a breach by the Funding Seller, the Servicer, the Performance Guarantor or any of their Affiliates of Section 7.1(l) (less any respective value added tax credits or deductions as are obtained by or credited to the Purchasing Entities, which credits or deductions shall be taken into account following the final and unchangeable determination thereof by the German tax authorities; whereby the Bank Purchaser shall take reasonable steps to receive eligible value added tax credits or deductions by filing respective returns); or
(b) any Taxes, other than Excluded Taxes, payable by the Purchaser to the relevant German tax authorities if (contrary to the expectations of the parties hereto) the Purchaser is determined by the relevant German tax authorities to have a permanent establishment or other taxable presence located in the Federal Republic of Germany.
Appears in 2 contracts
Sources: Parent Guarantee (Scilex Holding Co), Parent Guarantee (Oramed Pharmaceuticals Inc.)
Performance Guarantee. 19.1 The Performance Guarantor Dear Sirs In consideration of your executing a Shipbuilding Contract (Ahereinafter called the “Contract”) dated with (hereinafter called the “Buyer”) providing for the construction of Hull No. (hereinafter called the “Vessel”) and providing, among other things, for payment of the contract price amounting to United States Dollars only (US$ ) for the Vessel, prior to and upon the delivery of the Vessel, the undersigned, hereby irrevocably, absolutely unconditionally and unconditionally irrevocably guarantees to the Purchaserpay to you, your successors and assigns, the Bank Purchasing Agent due and faithful performance by the Bank Purchasers and their respective assignees the prompt performance when due Buyer of all obligations its liabilities and responsibilities under the Contract and any supplements, amendments, changes or modifications hereinafter made thereto, including but not limited to, due and prompt payment of the Servicercontract price (whether on account of principal, interest or otherwise) by the Originators Buyer to you, your successors and assigns under the Initial Purchaser hereunder and under each Contract, notwithstanding any obligation of the other Transaction Documents Buyer being or becoming unenforceable by defect in or want of its powers, (includinghereby expressly waiving notice of any such supplement, without limitationamendment, payment in full when due, whether at stated maturity, by acceleration change or otherwise, of all amounts owing modification as may be agreed to by the Servicer, the Originators or the Initial Purchaser Buyer) and confirms that this guarantee shall be fully applicable to the Funding SellerContract whether so supplemented, amended, changed or modified and if it shall be assigned by the Purchaser and the Bank Purchasing Agent) strictly Buyer in accordance with the terms hereof and thereof; and (B) accordingly agrees that, whenever the Servicer, any Originator or the Initial Purchaser shall fail to perform any such obligation when due hereunder or thereunder, the Performance Guarantor shall immediately perform, or cause to be performed, such obligation as if it were the principal obligor and regardless of the reason for such failure (such obligations being herein collectively referred to as the “TMUS Guaranteed Obligations”)Contract. For the avoidance of doubt, the Performance Guarantor shall have no obligation to guaranty (and does not guaranty) any obligations This Guarantee will expire on delivery of the Funding Seller Vessel to the Buyer. The payment by the undersigned under this guarantee shall, subject to the Transaction Documents. For the sake provisions hereinbelow, be made promptly upon receipt by us of clarity, it is expressly acknowledged written demand from you including a statement that the TMUS Guaranteed Obligations do not include any actBuyer is in default of its obligations, inaction, obligation or liability liabilities and responsibilities as provided in the Contract and/or in default of payment of the Funding Seller to fully and punctually pay, perform or comply with any of the terms, covenants, conditions, agreements, undertakings and obligations on the part of the Funding Seller to be paid, performed or complied with by it under this Agreement, any other Transaction Document or any document entered into in connection with the foregoing.
19.2 The obligations of the Performance Guarantor under this Performance Guarantee will not be affected by:
(a) any amendment (however fundamental) or replacement of this Agreement, the Conveyancing Agreement or any other document or security;
(b) any Bankruptcy Event with respect to the Funding Seller, the Servicer, any Originator or any other Person.
19.3 The obligations of the Performance Guarantor under this Performance Guarantee are absolute and unconditional, irrespective of the validity or enforceability of any other section of this Agreement or any Transaction Document, the value of any collateral provided to the Bank Purchasing Agent or the Bank Collections Agent or the release or exchange of any such collateral. The Performance Guarantor waives any right it may have of first requiring the Bank Purchasing Agent or the Bank Collections Agent to proceed against, or enforce any other rights or security or claim from, any person before claiming from it under this guarantee. This waiver applies irrespective of any non-mandatory law or any provision of this Agreement to the contrary. 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 Performance Guarantor hereunder, which shall remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice to the Performance Guarantor, the time for any performance of or compliance with any of the obligations of the Servicer or an Originator under the Transaction Documents shall be waived;
(b) any of the acts mentioned in any of the provisions of this Agreement or any other Transaction Document shall be done or omitted;
(c) any of the TMUS Guaranteed Obligations shall be modified, supplemented or amended in any respect, or any right under this Agreement or any other Transaction Document shall be waived or any of the TMUS Guaranteed Obligations or any security therefore shall be released or exchanged in whole or in part or otherwise dealt with; or
(d) any lien or security interest granted to, or in favor of, either of the Co-Agents as security for the TMUS Guaranteed Obligations shall fail to be effective or perfected. The Performance Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Bank Purchasing Agent exhaust any right, power or remedy or proceed against any Originator or the Servicer or against any other Person under any other agreement, or guarantee of, or security for, any of the TMUS Guaranteed Obligations.
19.4 The obligations of the Performance Guarantor under this Section 19 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Originator or the Servicer under this Agreement or any other Transaction Document is rescinded or must otherwise be restored by any holder of any of the TMUS Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and the Performance Guarantor agrees that it will indemnify the Bank Purchasing Agent on demand for all reasonable costs and expenses amounts (including, but not limited to, the instalment(s) payable prior to or upon delivery of the Vessel) that were due under the Contract without limitationrequesting you to take any or further procedure or step against the Buyer. In the event that any withholding or deduction is imposed by any law, fees of counsel) incurred by the Bank Purchasing Agent undersigned will pay such additional amount as may be necessary in connection with such rescission order that the actual amount received after deduction or restoration, including any such costs or expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.
19.5 The Performance Guarantor hereby waives all rights of subrogation or contribution, whether arising by contract or operation of law or otherwise by reason of any payment by it pursuant withholding shall equal to the amount that would have been received if such deduction or withholding were not required. Notwithstanding the provisions of this Section 19.
19.6 The Performance Guarantor agrees that, as between the Performance Guarantor and any of the Purchasing Entities, the obligations of the Originators and the Servicer under this Agreement and each other Transaction Document may be declared to be forthwith due and payable as provided herein and therein (and shall be deemed to have become automatically due and payable as provided herein and therein) for the purposes of Section 19.1 hereof notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against any Originator or the Servicer and thathereinabove, in the event that within thirty (30) days of such declaration (or such obligations being deemed the date of your demand to have become automatically due and payable), such obligations (whether or not due and payable by any Originator or us referred to above we receive notification from the Servicer, as applicable) shall forthwith become due and payable Buyer accompanied by the Performance Guarantor written confirmation of an arbitrator to the effect that an arbitration has been initiated and that your claim to cancel the Contract or your claim for purposes of Section 19.1.
19.7 The guarantee refund thereunder has been disputed and referred to arbitration in this Section 19 is a continuing guarantee, and shall apply to all TMUS Guaranteed Obligations whenever arising.
19.8 Without limiting or being limited by accordance with the foregoing, the Performance Guarantor shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting from either provisions of the following:
(a) any value added tax plus any interest and other ancillary Tax charges (A) applicable Contract, we shall under this guarantee refund to you the sum, if any, due to you from the Buyer pursuant to the final and un-appealable award made under such arbitration promptly upon receipt from you of a demand for payment of the Servicer Fee, the supply sum and a copy of the services rendered award. This guarantee shall be governed by and interpreted in accordance with the Servicer or laws of England and the sale undersigned hereby submits to the jurisdiction of the Receivables English courts and the Related Rights pursuant to this Agreement or the Onward Receivables Purchase Agreement or (B) arising as a result of a breach by the Funding Seller, the Servicer, the Performance Guarantor or any of their Affiliates of Section 7.1(l) (less any respective value added tax credits or deductions as are obtained by or credited to the Purchasing Entities, which credits or deductions shall be taken into account following the final and unchangeable determination thereof by the German tax authorities; whereby the Bank Purchaser shall take reasonable steps appoints to receive eligible value added tax credits or deductions by filing respective returns); or
(b) any Taxesservice of proceedings in such court on its behalf. Yours faithfully For and on behalf of Name: Title: Date: August 26th, other than Excluded Taxes, payable by the Purchaser to the relevant German tax authorities if (contrary to the expectations of the parties hereto) the Purchaser 2011 This ADDENDUM NO. 1 is determined by the relevant German tax authorities to have a permanent establishment or other taxable presence located in the Federal Republic of Germany.made between:
Appears in 2 contracts
Sources: Shipbuilding Contract (Ardmore Shipping Corp), Shipbuilding Contract (Ardmore Shipping Corp)
Performance Guarantee. 19.1 The Performance Guarantor (Aa) BioMarin hereby irrevocablyunconditionally, irrevocably and absolutely and unconditionally guarantees to Medicis the Purchaser, the Bank Purchasing Agent due and the Bank Purchasers punctual performance and their respective assignees the prompt performance when due discharge of all of BioMarin Acquisition's obligations of the Servicerunder this Agreement, the Originators and the Initial Purchaser hereunder and under each of the other Transaction Documents (including, without limitation, the due and punctual payment in full when due, whether at stated maturity, by acceleration or otherwise, of all amounts owing by the Servicer, the Originators or the Initial Purchaser to the Funding Seller, the Purchaser Cash Option Payment and the Bank Purchasing Agent) strictly in accordance with the terms hereof and thereof; and (B) accordingly agrees thatAdditional Consideration, whenever the Servicerif any, any Originator other amount that BioMarin Acquisition is or the Initial Purchaser shall fail may become obligated to perform any such obligation when due hereunder or thereunder, the Performance Guarantor shall immediately perform, or cause pay pursuant to be performed, such obligation as if it were the principal obligor and regardless of the reason for such failure (such obligations being herein collectively referred to as the “TMUS Guaranteed Obligations”). For the avoidance of doubt, the Performance Guarantor shall have no obligation to guaranty (and does not guaranty) any obligations of the Funding Seller under the Transaction Documents. For the sake of clarity, it is expressly acknowledged that the TMUS Guaranteed Obligations do not include any act, inaction, obligation or liability of the Funding Seller to fully and punctually pay, perform or comply with any of the terms, covenants, conditions, agreements, undertakings and obligations on the part of the Funding Seller to be paid, performed or complied with by it under this Agreement, any other Transaction Document or any document entered into in connection with the foregoing.
19.2 The obligations and delivery of the Performance Guarantor BioMarin Payment Shares (collectively, the "OBLIGATIONS"). The guarantee under this Performance Guarantee will Section 9.16 is a guarantee of timely payment and performance of the Obligations and not be affected by:
(a) any amendment (however fundamental) or replacement merely of this Agreement, the Conveyancing Agreement or any other document or security;collection.
(b) any Bankruptcy Event with respect to To the Funding Sellerfullest extent permitted by applicable law, the Servicer, any Originator or any other Person.
19.3 The obligations of the Performance Guarantor under this Performance Guarantee are absolute and unconditional, irrespective of the validity or enforceability of any other section of this Agreement or any Transaction Document, the value of any collateral provided to the Bank Purchasing Agent or the Bank Collections Agent or the release or exchange of any such collateral. The Performance Guarantor waives any right it may have of first requiring the Bank Purchasing Agent or the Bank Collections Agent to proceed against, or enforce any other rights or security or claim from, any person before claiming from it under this guarantee. This waiver applies irrespective of any non-mandatory law or any provision of this Agreement to the contrary. 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 Performance Guarantor hereunder, which shall remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice to the Performance Guarantor, the time for any performance of or compliance with any of the obligations of the Servicer BioMarin hereunder shall remain in full force and effect without regard to, and shall not be affected or an Originator under the Transaction Documents shall be waived;
impaired by, (bi) any change in the corporate structure or ownership of BioMarin Acquisition or the acts mentioned bankruptcy, insolvency, reorganization, dissolution, liquidation, or other similar proceeding relating to BioMarin Acquisition or any Affiliate or Subsidiary of either BioMarin Acquisition or BioMarin or (ii) any neglect, delay, omission, failure or refusal of BioMarin to take or prosecute any action in any of the provisions of connection with this Agreement or any other Transaction Document shall be done agreement delivered in connection herewith. In connection with this Section 9.16, BioMarin unconditionally waives: (i) any right to receive demands, protests, or omitted;other notices of any kind or character whatsoever, provided that the same has been delivered to BioMarin Acquisition, (ii) any right to require Medicis or Ascent to proceed first against BioMarin Acquisition or to exhaust any security held by Medicis or Ascent or to pursue any other remedy, (iii) any defense based upon an election of remedies by Medicis or Ascent, (iv) any duty of Medicis or Ascent to advise BioMarin of any information known to Medicis or Ascent regarding BioMarin Acquisition or its ability to perform under this Agreement, and (v) all suretyship and other defenses of every kind and nature.
(c) any of the TMUS Guaranteed Obligations shall be modified, supplemented or amended in any respect, or any right under this Agreement or any other Transaction Document shall be waived or any of the TMUS Guaranteed Obligations or any security therefore shall be released or exchanged in whole or in part or otherwise dealt with; or
(d) any lien or security interest granted to, or in favor of, either of the Co-Agents as security for the TMUS Guaranteed Obligations shall fail to be effective or perfected. The Performance Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Bank Purchasing Agent exhaust any right, power or remedy or proceed against any Originator or the Servicer or against any other Person under any other agreement, or guarantee of, or security for, any of the TMUS Guaranteed Obligations.
19.4 The obligations of the Performance Guarantor BioMarin under this Section 19 9.16 shall be automatically reinstated if and to the extent that for any reason any payment or other performance by or on behalf of any Originator or BioMarin Acquisition in respect of the Servicer under this Agreement or any other Transaction Document is Obligations are rescinded or must be otherwise be restored by any holder of any of the TMUS Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwiserestored, and the Performance Guarantor BioMarin agrees that it will indemnify the Bank Purchasing Agent Medicis and Ascent on demand for all reasonable costs and expenses (including, without limitation, including reasonable attorneys fees of counseland expenses) incurred by the Bank Purchasing Agent Medicis and Ascent in connection with such rescission or restoration. If in connection with the foregoing, including any such costs Medicis and Ascent is required to refund part or expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.
19.5 The Performance Guarantor hereby waives all rights of subrogation or contribution, whether arising by contract or operation of law or otherwise by reason of any payment of BioMarin Acquisition, such payment by it pursuant Medicis and Ascent shall not constitute a release of BioMarin from any liability hereunder, and BioMarin's liability hereunder shall be reinstated to the fullest extent allowed under applicable law and shall not be construed to be diminished in any manner.
(d) This Section 9.16 shall survive the Option Closing and shall remain in full force and effect, subject to the provisions of this Section 199.16(c).
19.6 The Performance Guarantor agrees that, as between the Performance Guarantor and any of the Purchasing Entities, the obligations of the Originators and the Servicer under this Agreement and each other Transaction Document may be declared to be forthwith due and payable as provided herein and therein (and shall be deemed to have become automatically due and payable as provided herein and therein) for the purposes of Section 19.1 hereof notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against any Originator or the Servicer and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by any Originator or the Servicer, as applicable) shall forthwith become due and payable by the Performance Guarantor for purposes of Section 19.1.
19.7 The guarantee in this Section 19 is a continuing guarantee, and shall apply to all TMUS Guaranteed Obligations whenever arising.
19.8 Without limiting or being limited by the foregoing, the Performance Guarantor shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting from either of the following:
(a) any value added tax plus any interest and other ancillary Tax charges (A) applicable to the payment of the Servicer Fee, the supply of the services rendered by the Servicer or the sale of the Receivables and the Related Rights pursuant to this Agreement or the Onward Receivables Purchase Agreement or (B) arising as a result of a breach by the Funding Seller, the Servicer, the Performance Guarantor or any of their Affiliates of Section 7.1(l) (less any respective value added tax credits or deductions as are obtained by or credited to the Purchasing Entities, which credits or deductions shall be taken into account following the final and unchangeable determination thereof by the German tax authorities; whereby the Bank Purchaser shall take reasonable steps to receive eligible value added tax credits or deductions by filing respective returns); or
(b) any Taxes, other than Excluded Taxes, payable by the Purchaser to the relevant German tax authorities if (contrary to the expectations of the parties hereto) the Purchaser is determined by the relevant German tax authorities to have a permanent establishment or other taxable presence located in the Federal Republic of Germany.
Appears in 1 contract
Sources: Securities Purchase Agreement (Medicis Pharmaceutical Corp)
Performance Guarantee. 19.1 The Performance Guarantor Gentlemen, In consideration of your executing a shipbuilding contract (Ahereinafter called the “CONTRACT”) dated 2008 with SUEZ TOPAZ LIMITED (hereinafter called the “BUYER”) providing for the construction of one (1) 158,000 DWT Class Crude Oil Carrier having the BUILDER’S Hull No.2300 (hereinafter called the “VESSEL”) and providing, among other things, for payment of the contract price amounting to (U.S.$ ) for the VESSEL, prior to, upon and after the delivery of the VESSEL, the undersigned, as a primary obligor and not as a surety merely, hereby irrevocably, absolutely unconditionally and unconditionally irrevocably guarantees to the Purchaseryou, your successors and assigns, the Bank Purchasing Agent due and faithful performance by the Bank Purchasers and their respective assignees the prompt performance when due BUYER of all obligations its liabilities and responsibilities under the CONTRACT and any supplements, amendments, changes or modifications hereinafter made thereto including but not limited to, due and prompt payment of the Servicerabove said contract price (whether on account of principal, interest or otherwise) by the Originators BUYER to you, your successors and assigns under the Initial Purchaser hereunder and under each CONTRACT, notwithstanding any obligation of the other Transaction Documents BUYER being or becoming unenforceable by defect in or want of its powers, (includinghereby expressly waiving notice of any such supplement, without limitationamendment, payment in full when due, whether at stated maturity, by acceleration change or otherwise, of all amounts owing modification as may be agreed to by the Servicer, the Originators or the Initial Purchaser BUYER) and confirms that this guarantee shall be fully applicable to the Funding SellerCONTRACT whether so supplemented, amended, changed or modified and if it shall be assigned by the Purchaser and the Bank Purchasing Agent) strictly BUYER in accordance with the terms hereof of the CONTRACT. This guarantee will expire on delivery of the VESSEL to the BUYER. The undersigned hereby certifies, represents and thereof; warrants that all acts, conditions and things required to be done and performed and to have occurred precedent to the creation and issuance of this guarantee, and to constitute the guarantee the valid and legally binding obligation of the undersigned enforceable in accordance with its terms have been done and performed and have occurred in due and strict compliance with applicable laws. The payment by the undersigned under this guarantee shall be made forthwith upon receipt by us of written demand from you including a statement that the BUYER is in default of payment of the amounts (B) accordingly agrees thatincluding, whenever the Servicer, any Originator or the Initial Purchaser shall fail to perform any such obligation when due hereunder or thereunderbut not limited to, the Performance Guarantor shall immediately perform, instalment(s) payable prior to or cause to be performed, such obligation as if it were the principal obligor and regardless upon delivery of the reason for such failure (such obligations being herein collectively referred VESSEL) that were due under the CONTRACT, without requesting you to as take any or further procedure or step against the “TMUS Guaranteed Obligations”)BUYER. For This Performance Guarantee shall become effective upon execution by us and shall become null and void upon rescission by the avoidance of doubt, the Performance Guarantor shall have no obligation to guaranty (and does not guaranty) any obligations BUYER of the Funding Seller under the Transaction Documents. For the sake of clarity, it is expressly acknowledged that the TMUS Guaranteed Obligations do not include any act, inaction, obligation CONTRACT or liability delivery and acceptance of the Funding Seller to fully and punctually pay, perform or comply with any VESSEL. The existence of the terms, covenants, conditions, agreements, undertakings and obligations on the part of the Funding Seller to be paid, performed or complied with by it under this Agreement, any other Transaction Document or any document entered into in connection with the foregoing.
19.2 The obligations of the Performance Guarantor under this Performance Guarantee will and its terms and conditions shall be treated by you as confidential and shall not be affected by:
disclosed by you to any person, authority or entity (aother than your bank) and any amendment (however fundamental) relevant court or replacement arbitration tribunal. This guarantee shall be governed by and interpreted in accordance with the laws of this Agreement, England and the Conveyancing Agreement or any other document or security;
(b) any Bankruptcy Event with respect undersigned hereby submits to the Funding Seller, the Servicer, any Originator or any other Person.
19.3 The obligations non-exclusive jurisdiction of the Performance Guarantor under this Performance Guarantee are absolute courts of England. Very truly yours For and unconditional, irrespective of the validity or enforceability of any other section of this Agreement or any Transaction Document, the value of any collateral provided to the Bank Purchasing Agent or the Bank Collections Agent or the release or exchange of any such collateral. The Performance Guarantor waives any right it may have of first requiring the Bank Purchasing Agent or the Bank Collections Agent to proceed against, or enforce any other rights or security or claim from, any person before claiming from it under this guarantee. This waiver applies irrespective of any non-mandatory law or any provision of this Agreement to the contrary. 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 Performance Guarantor hereunder, which shall remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice to the Performance Guarantor, the time for any performance of or compliance with any of the obligations of the Servicer or an Originator under the Transaction Documents shall be waived;
(b) any of the acts mentioned in any of the provisions of this Agreement or any other Transaction Document shall be done or omitted;
(c) any of the TMUS Guaranteed Obligations shall be modified, supplemented or amended in any respect, or any right under this Agreement or any other Transaction Document shall be waived or any of the TMUS Guaranteed Obligations or any security therefore shall be released or exchanged in whole or in part or otherwise dealt with; or
(d) any lien or security interest granted to, or in favor of, either of the Co-Agents as security for the TMUS Guaranteed Obligations shall fail to be effective or perfected. The Performance Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Bank Purchasing Agent exhaust any right, power or remedy or proceed against any Originator or the Servicer or against any other Person under any other agreement, or guarantee of, or security for, any of the TMUS Guaranteed Obligations.
19.4 The obligations of the Performance Guarantor under this Section 19 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Originator or [·] By Name: Title: ▇▇▇▇▇▇▇▇ ▇▇.▇ dated 17 November 2008 to a shipbuilding contract dated 2 June 2008 (the Servicer under this Agreement or any other Transaction Document is rescinded or must otherwise be restored by any holder of any of “Contract”) made between Suez Topaz Limited (the TMUS Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, “Buyer”) and Hyundai Heavy Industries Co. Ltd (the Performance Guarantor agrees that it will indemnify the Bank Purchasing Agent on demand for all reasonable costs and expenses (including, without limitation, fees of counsel) incurred by the Bank Purchasing Agent in connection with such rescission or restoration, including any such costs or expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.
19.5 The Performance Guarantor hereby waives all rights of subrogation or contribution, whether arising by contract or operation of law or otherwise by reason of any payment by it pursuant to the provisions of this Section 19.
19.6 The Performance Guarantor agrees that, as between the Performance Guarantor and any of the Purchasing Entities, the obligations of the Originators and the Servicer under this Agreement and each other Transaction Document may be declared to be forthwith due and payable as provided herein and therein (and shall be deemed to have become automatically due and payable as provided herein and therein“Builder”) for the purposes construction of Section 19.1 hereof notwithstanding any stay, injunction or other prohibition preventing such declaration one (or such obligations from becoming automatically due and payable1) as against any Originator or the Servicer and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by any Originator or the Servicer, as applicable) shall forthwith become due and payable by the Performance Guarantor for purposes of Section 19.1158,000 DWT class crude oil carrier bearing Hull No. 2300.
19.7 The guarantee in this Section 19 is a continuing guarantee, and shall apply to all TMUS Guaranteed Obligations whenever arising.
19.8 Without limiting or being limited by the foregoing, the Performance Guarantor shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting from either of the following:
(a) any value added tax plus any interest and other ancillary Tax charges (A) applicable to the payment of the Servicer Fee, the supply of the services rendered by the Servicer or the sale of the Receivables and the Related Rights pursuant to this Agreement or the Onward Receivables Purchase Agreement or (B) arising as a result of a breach by the Funding Seller, the Servicer, the Performance Guarantor or any of their Affiliates of Section 7.1(l) (less any respective value added tax credits or deductions as are obtained by or credited to the Purchasing Entities, which credits or deductions shall be taken into account following the final and unchangeable determination thereof by the German tax authorities; whereby the Bank Purchaser shall take reasonable steps to receive eligible value added tax credits or deductions by filing respective returns); or
(b) any Taxes, other than Excluded Taxes, payable by the Purchaser to the relevant German tax authorities if (contrary to the expectations of the parties hereto) the Purchaser is determined by the relevant German tax authorities to have a permanent establishment or other taxable presence located in the Federal Republic of Germany.
Appears in 1 contract
Performance Guarantee. 19.1 The Each Performance Guarantor (A) hereby irrevocably, absolutely and unconditionally guarantees to the Purchaser, the Bank Purchasing Agent and the Bank Purchasers and their respective assignees the prompt performance when due of all obligations of the Servicer, the Originators and the Initial Purchaser hereunder and under each of the other Transaction Documents (including, without limitation, payment in full when due, whether at stated maturity, by acceleration or otherwise, of all amounts owing by the Servicer, the Originators or the Initial Purchaser to the Funding Seller, the Purchaser and the Bank Purchasing Agent) strictly in accordance with the terms hereof and thereof; and (B) accordingly agrees that, whenever the Servicer, any Originator or the Initial Purchaser shall fail to perform any such obligation when due hereunder or thereunder, the Performance Guarantor shall immediately perform, or cause to be performed, such obligation as if it were the principal obligor and regardless of the reason for such failure (such obligations being herein collectively referred to as the “TMUS Performance Guaranteed Obligations”). For the avoidance of doubt, the neither Performance Guarantor shall have no any obligation to guaranty (and does not guaranty) any obligations of the Funding Seller under the Transaction Documents. For the sake of clarity, it is expressly acknowledged that the TMUS Performance Guaranteed Obligations do not include any act, inaction, obligation or liability of the Funding Seller to fully and punctually pay, perform or comply with any of the terms, covenants, conditions, agreements, undertakings and obligations on the part of the Funding Seller to be paid, performed or complied with by it under this Agreement, any other Transaction Document or any document entered into in connection with the foregoing.
19.2 The obligations of the each Performance Guarantor under this Performance Guarantee will not be affected by:
(a) any amendment (however fundamental) or replacement of this Agreement, the Conveyancing Agreement or any other document or security;
(b) any Bankruptcy Event with respect to the Funding Seller, the Servicer, any Originator or any other Person.
19.3 The obligations of the each Performance Guarantor under this Performance Guarantee are absolute and unconditional, irrespective of the validity or enforceability of any other section of this Agreement or any Transaction Document, the value of any collateral provided to the Bank Purchasing Agent or the Bank Collections Agent or the release or exchange of any such collateral. The Performance Guarantor waives any right it may have of first requiring the Bank Purchasing Agent or the Bank Collections Agent to proceed against, or enforce any other rights or security or claim from, any person before claiming from it under this guarantee. This waiver applies irrespective of any non-mandatory law or any provision of this Agreement to the contrary. 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 Performance Guarantor hereunder, which shall remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice to the Performance Guarantor, the time for any performance of or compliance with any of the obligations of the Servicer or an Originator under the Transaction Documents shall be waived;
(b) any of the acts mentioned in any of the provisions of this Agreement or any other Transaction Document shall be done or omitted;
(c) any of the TMUS Performance Guaranteed Obligations shall be modified, supplemented or amended in any respect, or any right under this Agreement or any other Transaction Document shall be waived or any of the TMUS Performance Guaranteed Obligations or any security therefore shall be released or exchanged in whole or in part or otherwise dealt with; or
(d) any lien or security interest granted to, or in favor of, either of the Co-Agents as security for the TMUS Performance Guaranteed Obligations shall fail to be effective or perfected. The Each Performance Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Bank Purchasing Agent exhaust any right, power or remedy or proceed against any Originator or the Servicer or against any other Person under any other agreement, or guarantee of, or security for, any of the TMUS Performance Guaranteed Obligations.
19.4 The obligations of the each Performance Guarantor under this Section 19 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Originator or the Servicer under this Agreement or any other Transaction Document is rescinded or must otherwise be restored by any holder of any of the TMUS Performance Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and the Performance Guarantor agrees that it will indemnify the Bank Purchasing Agent on demand for all reasonable costs and expenses (including, without limitation, fees of counsel) incurred by the Bank Purchasing Agent in connection with such rescission or restoration, including any such costs or expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.
19.5 The Each Performance Guarantor hereby waives all rights of subrogation or contribution, whether arising by contract or operation of law or otherwise by reason of any payment by it pursuant to the provisions of this Section 19.
19.6 The Each Performance Guarantor agrees that, as between the such Performance Guarantor and any of the Purchasing Entities, the obligations of the Originators and the Servicer under this Agreement and each other Transaction Document may be declared to be forthwith due and payable as provided herein and therein (and shall be deemed to have become automatically due and payable as provided herein and therein) for the purposes of Section 19.1 hereof notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against any Originator or the Servicer and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by any Originator or the Servicer, as applicable) shall forthwith become due and payable by the Performance Guarantor for purposes of Section 19.1.
19.7 The guarantee in this Section 19 is a continuing guarantee, and shall apply to all TMUS Performance Guaranteed Obligations whenever arising.
19.8 Without limiting or being limited by the foregoing, the each Performance Guarantor shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting from either of the following:
(a) any value added tax plus any interest and other ancillary Tax charges (A) applicable to the payment of the Servicer Fee, the supply of the services rendered by the Servicer or the sale of the Receivables and the Related Rights pursuant to this Agreement or the Onward Receivables Purchase Agreement or (B) arising as a result of a breach by the Funding Seller, the Servicer, the Performance Guarantor or any of their Affiliates of Section 7.1(l) (less any respective value added tax credits or deductions as are obtained by or credited to the Purchasing Entities, which credits or deductions shall be taken into account following the final and unchangeable determination thereof by the German tax authorities; whereby the Bank Purchaser shall take reasonable steps to receive eligible value added tax credits or deductions by filing respective returns); or
(b) any Taxes, other than Excluded Taxes, payable by the Purchaser to the relevant German tax authorities if (contrary to the expectations of the parties hereto) the Purchaser is determined by the relevant German tax authorities to have a permanent establishment or other taxable presence located in the Federal Republic of Germany.
Appears in 1 contract
Sources: Master Receivables Purchase Agreement (T-Mobile US, Inc.)
Performance Guarantee. 19.1 The Performance Guarantor 7.1.1 If specifically required by an Alcatel-Lucent End Customer and reflected in a Service Order or Discrete Purchase Order, within fifteen (A15) hereby irrevocablyDays from the date of the acceptance by Subcontractor of such Order, absolutely and unconditionally guarantees to the PurchaserSubcontractor shall cause, at its own expense, the Bank Purchasing Agent issuance, in a form and the Bank Purchasers substance and their respective assignees the prompt by a bank acceptable to Alcatel-Lucent, a combined performance when due and warranty bond in an amount equivalent to ten percent (10 %) of all obligations of the Servicer, the Originators and the Initial Purchaser hereunder and under each of the other Transaction Documents (including, without limitation, payment in full when due, whether at stated maturity, by acceleration or otherwise, of all amounts owing by the Servicer, the Originators or the Initial Purchaser to the Funding Seller, the Purchaser and the Bank Purchasing Agent) strictly in accordance with the terms hereof and thereof; and (B) accordingly agrees that, whenever the Servicer, any Originator or the Initial Purchaser shall fail to perform any such obligation when due hereunder or thereunder, the Performance Guarantor shall immediately perform, or cause to be performed, such obligation as if it were the principal obligor and regardless of the reason for such failure (such obligations being herein collectively referred to as the “TMUS Guaranteed Obligations”). For the avoidance of doubt, the Performance Guarantor shall have no obligation to guaranty (and does not guaranty) any obligations of the Funding Seller under the Transaction Documents. For the sake of clarity, it is expressly acknowledged that the TMUS Guaranteed Obligations do not include any act, inaction, obligation or liability of the Funding Seller to fully and punctually pay, perform or comply with any of the terms, covenants, conditions, agreements, undertakings and obligations on the part of the Funding Seller to be paid, performed or complied with by it under this Agreement, any other Transaction Document or any document entered into in connection with the foregoing.
19.2 The obligations of the Performance Guarantor under this Performance Guarantee will not be affected by:
(a) any amendment (however fundamental) or replacement of this Agreement, the Conveyancing Agreement or any other document or security;
(b) any Bankruptcy Event with respect to the Funding Seller, the Servicer, any Originator or any other Person.
19.3 The obligations of the Performance Guarantor under this Performance Guarantee are absolute and unconditional, irrespective of the validity or enforceability of any other section of this Agreement or any Transaction Document, the value of any collateral provided to the Bank Purchasing Agent or the Bank Collections Agent or the release or exchange of any such collateral. The Performance Guarantor waives any right it may have of first requiring the Bank Purchasing Agent or the Bank Collections Agent to proceed against, or enforce any other rights or security or claim from, any person before claiming from it under this guarantee. This waiver applies irrespective of any non-mandatory law or any provision of this Agreement to the contrary. 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 Performance Guarantor hereunder, which shall remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice to the Performance Guarantor, the time for any performance of or compliance with any of the obligations of the Servicer or an Originator under the Transaction Documents shall be waived;
(b) any of the acts mentioned in any of the provisions of this Agreement or any other Transaction Document shall be done or omitted;
(c) any of the TMUS Guaranteed Obligations shall be modified, supplemented or amended in any respect, or any right under this Agreement or any other Transaction Document shall be waived or any of the TMUS Guaranteed Obligations or any security therefore shall be released or exchanged in whole or in part or otherwise dealt with; or
(d) any lien or security interest granted to, or in favor of, either of the Co-Agents Order as security for the TMUS Guaranteed Obligations due performance by Subcontractor of its obligations under this Agreement.
7.1.2 Such combined performance and warranty bond shall fail to be effective or perfectedvalid until Subcontractor has duly completed the Services and remedied any defects therein. The Performance Guarantor hereby expressly waives diligence, presentment, demand of payment, protest performance and all notices whatsoever, and any requirement that warranty bond shall therefore remain valid until the Bank Purchasing Agent exhaust any right, power or remedy or proceed against any Originator or the Servicer or against any other Person under any other agreement, or guarantee of, or security for, any issuance by Alcatel-Lucent of the TMUS Guaranteed ObligationsFinal Acceptance Certificate at the end of the warranty period.
19.4 The obligations 7.1.3 Samples of the Performance Guarantor under this Section 19 above mentioned bonds will be provided in the applicable Project Agreement. THE COMPANY HAS REQUESTED AN ORDER FROM THE SECURITIES AND EXCHANGE COMMISSION (THE “COMMISSION”) PURSUANT TO RULE 24b-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, GRANTING CONFIDENTIAL TREATMENT TO SELECTED PORTIONS. ACCORDINGLY, THE CONFIDENTIAL PORTIONS HAVE BEEN OMITTED FROM THIS EXHIBIT, AND HAVE BEEN FILED SEPARATELY WITH THE COMMISSION. OMITTED PORTIONS ARE INDICATED IN THIS EXHIBIT WITH “*****”. 7.2 ACCEPTANCE OF SERVICES 7.2.1 If applicable, the Provisional Acceptance and Final Acceptance of the Services per Site shall be automatically reinstated if and to made under the extent that for any reason any payment by or on behalf of any Originator or the Servicer under this Agreement or any other Transaction Document is rescinded or must otherwise be restored by any holder of any of the TMUS Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwiseconditions set forth herein, and the Performance Guarantor agrees that it will indemnify the Bank Purchasing Agent on demand for all reasonable costs and expenses (includingacceptance tests shall, without limitationif requested by Alcatel-Lucent, fees of counsel) incurred be performed by the Bank Purchasing Agent Subcontractor in connection with such rescission or restoration, including any such costs or expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.
19.5 The Performance Guarantor hereby waives all rights of subrogation or contribution, whether arising by contract or operation of law or otherwise by reason of any payment by it pursuant to the provisions of this Section 19.
19.6 The Performance Guarantor agrees that, as between the Performance Guarantor and any presence of the Purchasing EntitiesAlcatel-Lucent representative. Subcontractor shall, by written notice, invite Alcatel-Lucent to attend the obligations of the Originators and the Servicer under this Agreement and each other Transaction Document may be declared to be forthwith due and payable as provided herein and therein (Provisional Acceptance tests and shall specify the date and place when and where the tests shall be deemed carried out. Subcontractor shall address the written notice, and Alcatel-Lucent will confirm its intent to have become automatically due and payable as provided herein and therein) for attend the purposes of Section 19.1 hereof notwithstanding any stay, injunction Provisional Acceptance or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against any Originator or Final Acceptance within the Servicer and that, timelines described in the event of such declaration (PA or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by any Originator or the Servicer, as applicable) shall forthwith become due and payable by the Performance Guarantor for purposes of Section 19.1SOW.
19.7 The guarantee in this Section 19 is a continuing guarantee, and shall apply to all TMUS Guaranteed Obligations whenever arising.
19.8 Without limiting or being limited by the foregoing, the Performance Guarantor shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting from either of the following:
(a) any value added tax plus any interest and other ancillary Tax charges (A) applicable to the payment of the Servicer Fee, the supply of the services rendered by the Servicer or the sale of the Receivables and the Related Rights pursuant to this Agreement or the Onward Receivables Purchase Agreement or (B) arising as a result of a breach by the Funding Seller, the Servicer, the Performance Guarantor or any of their Affiliates of Section 7.1(l) (less any respective value added tax credits or deductions as are obtained by or credited to the Purchasing Entities, which credits or deductions shall be taken into account following the final and unchangeable determination thereof by the German tax authorities; whereby the Bank Purchaser shall take reasonable steps to receive eligible value added tax credits or deductions by filing respective returns); or
(b) any Taxes, other than Excluded Taxes, payable by the Purchaser to the relevant German tax authorities if (contrary to the expectations of the parties hereto) the Purchaser is determined by the relevant German tax authorities to have a permanent establishment or other taxable presence located in the Federal Republic of Germany.
Appears in 1 contract
Performance Guarantee. 19.1 The Performance Guarantor (Aa) hereby irrevocablyTo guarantee the due, absolutely proper and unconditionally guarantees to full performance by the PurchaserContractor of its obligations during the Initial Appraisal Period, the Bank Purchasing Agent and the Bank Purchasers and their respective assignees the prompt performance when due of all obligations of the ServicerContractor shall submit to CNH, the Originators and the Initial Purchaser hereunder and under each of the other Transaction Documents (including, without limitation, payment in full when due, whether at stated maturity, by acceleration or otherwise, of all amounts owing by the Servicer, the Originators or the Initial Purchaser to the Funding Seller, the Purchaser and the Bank Purchasing Agent) strictly in accordance simultaneously with the terms hereof execution of this Contract, an unconditional and thereof; irrevocable letter of credit issued on behalf of CNH by an authorized Mexican banking institution or issued by a foreign bank and confirmed by an authorized Mexican banking institution, in the amount of , using the form of letter of credit attached hereto as Annex 10 (B) accordingly agrees that, whenever the Servicer, any Originator or the Initial Purchaser shall fail to perform any such obligation when due hereunder or thereunder, the Performance Guarantor shall immediately perform, or cause to be performed, such obligation as if it were the principal obligor and regardless of the reason for such failure (such obligations being herein collectively referred to as the “TMUS Guaranteed ObligationsInitial Performance Guarantee”). For The Initial Performance Guarantee shall cover the avoidance of doubt, Minimum Work Program and the Performance Guarantor Minimum Program Increase. Such guarantee shall have no obligation to guaranty remain in force until sixty (and does not guaranty60) any obligations Days following the end of the Funding Seller under Initial Appraisal Period prior verification of full compliance with the Transaction Documentsobligations related to this period. For the sake of clarity, it is expressly acknowledged that the TMUS Guaranteed Obligations do not include any act, inaction, obligation or liability of the Funding Seller CNH shall be entitled to fully and punctually pay, perform or comply with any of the terms, covenants, conditions, agreements, undertakings and obligations draw on the part of the Funding Seller to be paid, performed or complied with by it under this Agreement, any other Transaction Document or any document entered into in connection with the foregoing.
19.2 The obligations of the Performance Guarantor under this Initial Performance Guarantee will not be affected by:
(a) to collect any amendment (however fundamental) or replacement of this Agreement, liquidated damages specified in Article 4 for failure to perform the Conveyancing Agreement or any other document or security;Minimum Work Program and the Minimum Program Increase.
(b) any Bankruptcy Event with respect to At previous request from the Funding SellerContractor, the Servicer, any Originator or any other Person.
19.3 The obligations amount of the Performance Guarantor under this Initial Performance Guarantee are absolute and unconditional, irrespective may be proportionally reduced according progress towards fulfillment of the validity or enforceability guaranteed obligations prior verification and authorization of any other section CNH. Upon termination of this Agreement or any Transaction Documentthe Initial Appraisal Period, the value of any collateral provided to Contractor may request the Bank Purchasing Agent or the Bank Collections Agent or the release or exchange of any such collateral. The Performance Guarantor waives any right it may have of first requiring the Bank Purchasing Agent or the Bank Collections Agent to proceed against, or enforce any other rights or security or claim from, any person before claiming from it under this guarantee. This waiver applies irrespective of any non-mandatory law or any provision of this Agreement to the contrary. Without limiting the generality return of the foregoing, it is agreed that Initial Performance Guarantee once the occurrence of any one or more of Contractor has submitted the following shall not alter or impair the liability of the Performance Guarantor hereunder, which shall remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice to the Performance Guarantor, the time for any performance of or compliance Additional Period Guarantee in accordance with any of the obligations of the Servicer or an Originator under the Transaction Documents shall be waived;
(b) any of the acts mentioned in any of the provisions of this Agreement or any other Transaction Document shall be done or omitted;Article 16.1.
(c) any To guarantee the due, proper and full performance by the Contractor of the TMUS Guaranteed Obligations Minimum Work Program, the Minimum Program Increase not completed during the Initial Appraisal Period and its additional work commitment for the Additional Appraisal Period, (if any), the Contractor shall submit to CNH, no later than ten (10) Days after CNH approves the granting of the Additional Appraisal Period to the Contractor, but in any case before the beginning of the Additional Appraisal Period, an unconditional and irrevocable letter of credit issued for the benefit of CNH by an authorized Mexican banking institution or by a foreign bank and confirmed by an authorized Mexican banking institution, in the amount of , using the form of letter of credit attached hereto as Annex 10 (the “Additional Period Guarantee”). The Additional Period Guarantee shall remain valid up to sixty (60) Days following the end of the Additional Appraisal Period prior verification of full compliance with the obligations related to this period. CNH shall be modifiedentitled to draw on the Additional Period Guarantee in order to collect any liquidated damages specified in Article 4.4 for failure to perform the Minimum Work Program, supplemented or amended in any respect, or any right under this Agreement or any other Transaction Document shall be waived or any of the TMUS Guaranteed Obligations or any security therefore shall be released or exchanged in whole or in part or otherwise dealt with; orMinimum Program Increase and the additional commitments for the Additional Appraisal Period.
(d) any lien or security interest granted to, or in favor of, either Upon the termination of the Co-Agents as security Additional Appraisal Period, the Contractor may file for the TMUS Guaranteed Obligations shall fail return of the Additional Period Guarantee once CNH issues a report of full compliance with the obligations related to be effective or perfected. The Performance Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement the Additional Appraisal In case that the Bank Purchasing Agent exhaust any rightcorresponding Performance Guarantee is drawn on, power or remedy or proceed against any Originator or the Servicer or against any other Person under any other agreement, or guarantee of, or security for, any of the TMUS Guaranteed Obligations.
19.4 The obligations of the Performance Guarantor under this Section 19 shall guaranteed funds will be automatically reinstated if and transferred to the extent that for any reason any payment by or on behalf of any Originator or the Servicer under this Agreement or any other Transaction Document is rescinded or must otherwise be restored by any holder of any of the TMUS Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and the Performance Guarantor agrees that it will indemnify the Bank Purchasing Agent on demand for all reasonable costs and expenses (including, without limitation, fees of counsel) incurred by the Bank Purchasing Agent in connection with such rescission or restoration, including any such costs or expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar lawFund.
19.5 The Performance Guarantor hereby waives all rights of subrogation or contribution, whether arising by contract or operation of law or otherwise by reason of any payment by it pursuant to the provisions of this Section 19.
19.6 The Performance Guarantor agrees that, as between the Performance Guarantor and any of the Purchasing Entities, the obligations of the Originators and the Servicer under this Agreement and each other Transaction Document may be declared to be forthwith due and payable as provided herein and therein (and shall be deemed to have become automatically due and payable as provided herein and therein) for the purposes of Section 19.1 hereof notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against any Originator or the Servicer and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by any Originator or the Servicer, as applicable) shall forthwith become due and payable by the Performance Guarantor for purposes of Section 19.1.
19.7 The guarantee in this Section 19 is a continuing guarantee, and shall apply to all TMUS Guaranteed Obligations whenever arising.
19.8 Without limiting or being limited by the foregoing, the Performance Guarantor shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting from either of the following:
(a) any value added tax plus any interest and other ancillary Tax charges (A) applicable to the payment of the Servicer Fee, the supply of the services rendered by the Servicer or the sale of the Receivables and the Related Rights pursuant to this Agreement or the Onward Receivables Purchase Agreement or (B) arising as a result of a breach by the Funding Seller, the Servicer, the Performance Guarantor or any of their Affiliates of Section 7.1(l) (less any respective value added tax credits or deductions as are obtained by or credited to the Purchasing Entities, which credits or deductions shall be taken into account following the final and unchangeable determination thereof by the German tax authorities; whereby the Bank Purchaser shall take reasonable steps to receive eligible value added tax credits or deductions by filing respective returns); or
(b) any Taxes, other than Excluded Taxes, payable by the Purchaser to the relevant German tax authorities if (contrary to the expectations of the parties hereto) the Purchaser is determined by the relevant German tax authorities to have a permanent establishment or other taxable presence located in the Federal Republic of Germany.
Appears in 1 contract
Sources: Contract for the Extraction of Hydrocarbons Under Production Sharing Modality
Performance Guarantee. 19.1 The Performance Guarantor (Aa) Hertz hereby irrevocably, absolutely irrevocably and unconditionally guarantees to the PurchaserBeneficiaries, the Bank Purchasing Agent due and the Bank Purchasers punctual performance and their respective assignees the prompt performance when due of all obligations of the Servicer, the Originators and the Initial Purchaser hereunder and under observance by each of the other Transaction Dutch Administrator, French Administrator, German Administrator, Italian Administrator and Spanish Administrator (together the “Administrators”) and each of the Servicers of its obligations under the Related Documents (including, without limitation, payment in full when due, whether at stated maturity, by acceleration or otherwise, and of all amounts owing by the Servicer, the Originators or the Initial Purchaser to the Funding Seller, the Purchaser and the Bank Purchasing Agent) strictly in accordance with the terms hereof and thereof; and (B) accordingly agrees that, whenever the Servicer, any Originator or the Initial Purchaser shall fail to perform any such obligation when due hereunder or thereunder, the Performance Guarantor shall immediately perform, or cause to be performed, such obligation as if it were the principal obligor and regardless of the reason for such failure (such obligations being herein collectively referred to as the “TMUS Guaranteed Obligations”). For the avoidance of doubt, the Performance Guarantor shall have no obligation to guaranty (and does not guaranty) any obligations of the Funding Seller under the Transaction Documents. For the sake of clarity, it is expressly acknowledged that the TMUS Guaranteed Obligations do not include any act, inaction, obligation or liability of the Funding Seller to fully and punctually pay, perform or comply with any of the terms, covenants, conditions, agreements, agreements and undertakings and obligations on the part to be performed or observed by each of the Funding Seller Servicers and the Administrators under the Related Documents in accordance with the terms hereof and thereof including any agreement of the Servicers and the Administrators, in such capacity, to pay or deposit any money under the Related Documents (all such terms, covenants, conditions, agreements and undertakings to be paid, performed or complied observed by the Servicers and the Administrators, in such capacity, being collectively referred to as the “Guaranteed Obligations”) and the due and punctual payment by each Lessee of all amounts to be paid by each Lessee pursuant to Clause 4 (Rent and Lease Charges) of each Master Lease and Clause 13 (Value Added Tax and Stamp Taxes) of the German Master Lease, Spanish Master Lease, French Master Lease and Dutch Master Lease, and in Clause 9 (Value Added Tax and Stamp Taxes) of the Italian Fleet Servicing Agreement (together the “Guaranteed Monies”), in each case after any applicable grace periods or notice requirements, according to the terms of the Related Documents; provided, however, that Hertz shall not be liable to make any payment or deposit in respect of a Guaranteed Obligation or the Guaranteed Monies (each, a “Guaranteed Payment Obligation”) until five Business Days following receipt by Hertz of written notice from the relevant FleetCo that such a Guaranteed Payment Obligation is due that has not been satisfied by the Servicers, the Administrators or the Lessees (as applicable). In the event that the Servicers or the Administrators shall fail in any manner whatsoever to perform or observe any of the Guaranteed Obligations or the Lessees shall fail in any manner whatsoever to pay the Guaranteed Monies when the same shall be required to be performed or observed (after any applicable grace periods and notice requirements, according to the terms of the Related Documents, and the notice requirements set forth in the preceding sentence), then Hertz will itself duly perform or observe, or cause to be duly performed or observed, such Guaranteed Obligation, or pay such Guaranteed Monies and it shall not be a condition to the accrual of the obligation of Hertz hereunder to perform or observe any Guaranteed Obligation, or to cause such Guaranteed Obligation to be performed or observed, or to pay any Guaranteed Monies that any Beneficiary shall have first made any request of or demand upon or given any notice to Hertz (other than the notice required pursuant to the preceding sentence) or to the applicable Administrator, Servicer or Lessee, or their successors or assigns, or have instituted any action or proceeding against Hertz or the applicable Administrator, Servicer or Lessee, or their successors or assigns in respect thereof; provided, however, that for the avoidance of doubt, nothing contained herein shall be construed to be a waiver by Hertz of the requirement that notice be provided to Hertz with respect to each Guaranteed Payment Obligation in accordance with the preceding sentence.
(b) The Guarantor irrevocably and unconditionally indemnifies, as an independent and primary obligation, each Beneficiary against, and must pay to each Beneficiary promptly on demand, amounts equal to any loss, claim, action, damage, liability, cost, charge, expense, penalty, compensation, fine or outgoing suffered, paid or incurred by it under this Agreement, any other Transaction Document each Beneficiary as a result of or any document entered into in connection with (i) any obligation or liability of, or obligation or liability guaranteed by, the foregoingGuarantor under this Agreement (or which would be such an obligation or liability if enforceable, valid and not illegal) being or becoming unenforceable, invalid or illegal; (ii) any Lessee, Servicer or Administrator failing, or being unable, to pay any Guaranteed Monies or any of the Servicers or Administrators failing, or being unable, to perform any of the Guaranteed Obligations provided, however, that Hertz shall not be liable to make any payment or deposit in respect of a Guaranteed Obligation or the Guaranteed Monies until five Business Days following receipt by Hertz of written notice from the relevant FleetCo that such a Guaranteed Payment Obligation is due that has not been satisfied by the Servicers, the Administrators or the Lessees (as applicable); or (iii) any Guaranteed Monies (or money which would be Guaranteed Money if it were recoverable) not being recoverable from any Lessee, Servicer or Administrator, in each case, for any reason and whether or not such Beneficiary knew or ought to have known anything about those matters.
19.2 (c) The obligations of Hertz hereunder shall rank pari passu with the Performance Guarantor under senior unsecured debt of Hertz. Hertz hereby agrees that its obligations hereunder shall be unconditional, irrespective of (i) the validity, regularity or enforceability of any Related Document, any change therein or amendment, amendment and restatement or variation thereto, the absence of any action to enforce the same, any waiver or consent by the applicable Administrator, Servicer or Lessee with respect to any provision thereof, the recovery of any judgment against the applicable Administrator, Servicer or Lessee, or any action to enforce the same, or any other circumstances which may otherwise constitute a legal or equitable discharge or defence of a guarantor and (ii) any difference between the law selected as the governing law of any of the Related Documents and the law selected as the governing law of this Performance Guarantee. Hertz covenants that this Guarantee will not be affected by:
(a) any amendment (however fundamental) or replacement discharged except by complete performance of this Agreement, the Conveyancing Agreement or any other document or security;
(b) any Bankruptcy Event with respect Guaranteed Obligations and payment of the Guaranteed Monies. Notwithstanding anything to the Funding Sellercontrary contained herein (other than section 4.2 (Recourse), this Guarantee shall be discharged in its entirety on the Servicer, any Originator or any other Person.
19.3 The obligations date on which all Guaranteed Obligations and all liabilities in respect of the Performance Guarantor under Guaranteed Monies have been fully, finally and unconditionally performed, discharged or satisfied (as the case may be) (the “Guarantee Termination Date”; provided, however, that this Performance Guarantee are absolute and unconditional, irrespective of shall not be discharged on the validity or enforceability Guarantee Termination Date in respect of any other section of claims made pursuant to and in accordance with this Agreement or any Transaction Document, the value of any collateral provided Guarantee prior to the Bank Purchasing Agent or the Bank Collections Agent or the release or exchange of any such collateral. The Performance Guarantor waives any right it may have of first requiring the Bank Purchasing Agent or the Bank Collections Agent to proceed against, or enforce any other rights or security or claim from, any person before claiming from it under this guarantee. This waiver applies irrespective of any non-mandatory law or any provision of this Agreement to the contrary. 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 Performance Guarantor hereunderGuarantee Termination Date, which shall remain absolute have not yet been fully, finally and unconditional as described above:
(a) at any time unconditionally performed, discharged or from time to time, without notice to the Performance Guarantor, the time for any performance of or compliance with any of the obligations of the Servicer or an Originator under the Transaction Documents shall be waived;
(b) any of the acts mentioned in any of the provisions of this Agreement or any other Transaction Document shall be done or omitted;
(c) any of the TMUS Guaranteed Obligations shall be modified, supplemented or amended in any respect, or any right under this Agreement or any other Transaction Document shall be waived or any of the TMUS Guaranteed Obligations or any security therefore shall be released or exchanged in whole or in part or otherwise dealt with; orsatisfied.
(d) any lien or security interest granted to, or in favor of, either ▇▇▇▇▇ ▇▇▇▇▇ waives (i) promptness and diligence; (ii) notice of the Co-Agents as security for incurrence of any additional obligations by the TMUS Guaranteed Obligations shall fail to be effective applicable Administrator, Servicer or perfected. The Performance Guarantor hereby expressly waives diligence, Lessee; (iii) notice of any actions taken by any Beneficiary under any Related Document; (iv) acceptance of this Guarantee and reliance thereon by the Beneficiaries; and (v) presentment, demand of payment, notice of dishonor or nonpayment, protest and all notices whatsoevernotice of protest with respect to the Guaranteed Obligations or Guaranteed Monies, and any requirement that the Bank Purchasing Agent exhaust any right, power or remedy or proceed against any Originator or the Servicer or against any all other Person under any other agreement, or guarantee of, or security for, any formalities of the TMUS Guaranteed Obligations.
19.4 The obligations of the Performance Guarantor under this Section 19 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Originator or the Servicer under this Agreement or any other Transaction Document is rescinded or must otherwise be restored by any holder of any of the TMUS Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and the Performance Guarantor agrees that it will indemnify the Bank Purchasing Agent on demand for all reasonable costs and expenses (including, without limitation, fees of counsel) incurred by the Bank Purchasing Agent every kind in connection with such rescission the enforcement of the Guaranteed Obligations or restorationthe Guaranteed Monies, including any such costs the omission of or expenses incurred delay in defending against any claim alleging which might constitute grounds for relieving Hertz of its obligations under this Guarantee; provided, however, that such payment constituted for the avoidance of doubt, nothing contained herein shall be construed to be a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar lawwaiver by Hertz of the requirement that notice be provided to Hertz with respect to each Guaranteed Payment Obligation in accordance with Section 1(a) hereof.
19.5 The Performance Guarantor hereby waives all rights of subrogation or contribution(e) Hertz, whether arising by contract or operation of law or otherwise by reason in respect of any payment amounts owing from the applicable Administrator, Servicer or Lessee under the Related Documents, that are paid by it Hertz pursuant to the provisions of this Section 19Guarantee to any third party, shall be subrogated to all rights of such third party to receive payments of such amounts from each Administrator, Servicer or Lessee; provided, however, that Hertz shall be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation only after all amounts payable under the Related Documents have been paid in full.
19.6 The Performance Guarantor (f) Hertz further agrees that, as between to the Performance Guarantor and extent that any Guaranteed Payment Obligation is made by or on behalf of the Purchasing Entitiesapplicable Administrator, the obligations of the Originators and the Servicer under this Agreement and each other Transaction Document may be or Lessee, which Guaranteed Payment Obligation or any part thereof is subsequently invalidated, declared to be forthwith due and payable as provided herein and therein (and fraudulent or preferential, set aside and/or required to be repaid to the applicable Administrator, Servicer or Lessee or the estate, trustee, receiver or any other party relating to the applicable Administrator, Servicer or Lessee, including Hertz, under any bankruptcy law, provincial or federal law, common law or equitable cause then, to the extent of the amount so set aside or required to be repaid, the Guaranteed Payment Obligation or part thereof which had been paid, reduced or satisfied by such amount shall be deemed to have become automatically due reinstated and payable continued in full force and effect as provided herein and therein) for the purposes of Section 19.1 hereof notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against any Originator or the Servicer and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by any Originator or the Servicer, as applicable) shall forthwith become due and payable by the Performance Guarantor for purposes of Section 19.1.
19.7 The guarantee in this Section 19 is a continuing guarantee, and shall apply to all TMUS Guaranteed Obligations whenever arising.
19.8 Without limiting or being limited by the foregoing, the Performance Guarantor shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting from either of the following:
(a) any value added tax plus any interest and other ancillary Tax charges (A) applicable to the payment of the Servicer Feedate such initial payments, the supply of the services rendered by the Servicer reduction or the sale of the Receivables and the Related Rights pursuant to this Agreement or the Onward Receivables Purchase Agreement or (B) arising as a result of a breach by the Funding Seller, the Servicer, the Performance Guarantor or any of their Affiliates of Section 7.1(l) (less any respective value added tax credits or deductions as are obtained by or credited to the Purchasing Entities, which credits or deductions shall be taken into account following the final and unchangeable determination thereof by the German tax authorities; whereby the Bank Purchaser shall take reasonable steps to receive eligible value added tax credits or deductions by filing respective returns); or
(b) any Taxes, other than Excluded Taxes, payable by the Purchaser to the relevant German tax authorities if (contrary to the expectations of the parties hereto) the Purchaser is determined by the relevant German tax authorities to have a permanent establishment or other taxable presence located in the Federal Republic of Germanysatisfaction occurred.
Appears in 1 contract
Sources: Performance Guarantee and Indemnity Deed (Hertz Corp)