Common use of Guarantee of Guarantor Clause in Contracts

Guarantee of Guarantor. (a) Guarantor hereby unconditionally and irrevocably guarantees to the Company, each holder of a Share or Preferred Share, each Indemnified Person and their respective successors and permitted assigns the due and punctual payment in full of each obligation (each, an “Obligation” and collectively, the “Obligations”) of Parent under this Agreement and the transactions contemplated hereby. Guarantor agrees that if for any reason whatsoever Parent shall fail or be unable to duly, punctually and fully pay any Obligation, Guarantor shall unconditionally pay the Obligation. Nothing shall discharge or satisfy the liability of Guarantor under the guarantee contained in this Section 9.12 except the full payment of the Obligations. The guarantee contained in this Section 9.12 constitutes a guarantee of payment when due and not of collection. (b) Subject to Section 9.12(d), the obligations of Guarantor under this Section 9.12 shall not be subject to any reduction, limitation, impairment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any Obligation. Without limiting the generality of the foregoing, the obligations of Guarantor under the guarantee contained in this Section 9.12 shall not be discharged or impaired or otherwise affected by, (i) the failure of any holder of a Share or Preferred Share or any Indemnified Person to assert any claim or demand or to enforce any right or remedy under this Section 9.12; (ii) any default, failure or delay, willful or otherwise, in the payment of all or any part of any Obligation; or (iii) any other act or omission or delay to do any other act which might in any manner or to the extent vary the risk of Guarantor or which would otherwise operate as a discharge of a guarantor as a matter of law, and Guarantor hereby waives (x) all presentments, demands for payment to Parent, notices of protest for non-payment, notices of default, any other notice, any proof of reliance by any holder of a Share or Preferred Share or any Indemnified Person upon the guarantee contained in this Section 9.12 or acceptance of the guarantee contained herein and all other formalities; (y) any rights to set-off, recoupments, claims, or counterclaims; and (z) any right to revoke or terminate this guarantee. (c) In furtherance of the foregoing and not in limitation of any other right which any holder of a Share or Preferred Share or any Indemnified Person may have at law or in equity against Guarantor by virtue of the guarantee contained in this Section 9.12, upon failure of Parent to make any payment pursuant to any Obligations, when and as the same shall become due whether at Closing, under any provision contained in this Agreement or transactions contemplated hereby or otherwise, Guarantor shall pay such Obligation. (d) Notwithstanding anything to the contrary set forth in this Section 9.12, Guarantor shall have the right to assert as a defense to any of its obligations hereunder any defense or exercise of rights that would be available to it had it entered into the Obligations directly in the place of Parent.

Guarantee of Guarantor. (a) Subject to the terms and conditions of this Section 3.7, the Guarantor hereby unconditionally and irrevocably guarantees to the Company, each holder of a Share or Preferred Share, each Indemnified Person and their respective successors and permitted assigns Vendor the due and punctual complete performance, payment in full and satisfaction by the Purchaser of each obligation all of the payment, indemnification and other liabilities and obligations of the Purchaser under this Agreement (each, an “Obligation” and collectively, the “"Purchaser's Obligations”"). The guarantee provided for in this Section 3.7 (which guarantee is referred to in this Section 3.7 as the "Guarantee") is a continuing guarantee and applies to and secures each and all of Parent the Purchaser's Obligations at any time and from time to time. Subject to the provisions of this Section 3.7, the liabilities and obligations of the Guarantor under the Guarantee are not subject to any counterclaim, set-off, release, recoupment or defence and the Guarantee is and shall remain in full force and is irrevocable, absolute and unconditional irrespective of: (i) any change in the name of the Purchaser or in its business, management, shareholdings or any part thereof or in its capital structure or Corporate Documents; (ii) any discontinuance of the Purchaser’s business or the disposal or sale of its business and undertaking, in whole or in part, to another or others; (iii) the Purchaser being amalgamated or merged with any other corporation or entity or being wound up or dissolved; (iv) any lack of enforceability of this Agreement (other than solely by reason of a complete and total failure of consideration); (v) any change in any of the terms of any of the obligations covered by the Guarantee or any amendment, or waiver of or consent to departure from this Agreement; (vi) the occurrence of any Bankruptcy Event in relation to the Purchaser or any omission or refraining from proving the claim or any part of the claim of the Vendor in any bankruptcy, winding-up, compromise or other proceedings relating to the Purchaser; (vii) the pursuit, or failure to pursue, by the Vendor of any rights or remedies against the Purchaser; (viii) any assignment by the Purchaser of all or certain provisions of this Agreement, or any interest herein; (ix) any delegation by the Purchaser of any duty or obligation of the Purchaser arising under this Agreement and or otherwise in connection with the transactions contemplated hereby. Guarantor agrees that if for herein provided for; and (x) any reason other circumstances whatsoever Parent shall fail (other than actual payment or be unable performance), whether similar or dissimilar to duly, punctually any of the foregoing and fully pay any Obligation, whether or not the Guarantor shall unconditionally pay the Obligation. Nothing shall have any knowledge or notice thereof, that might constitute a legal or equitable defence or discharge or satisfy the liability of Guarantor under the guarantee contained in this Section 9.12 except the full payment of the Obligations. The guarantee contained in this Section 9.12 constitutes liabilities of a guarantee of payment when due and not of collection.guarantor or that might limit recourse against a guarantor; (b) Subject The Guarantee shall continue to Section 9.12(d)be effective, or be reinstated, as the case may be, if at any time payment, in whole or in part, of any sums due in respect of the obligations in respect of Guarantor under this Section 9.12 shall not which the Guarantee was given is rescinded or must otherwise be subject to restored or returned for any reduction, limitation, impairment reason or termination whatsoever by reason of the invalidity, illegality or unenforceability cause of any Obligation. Without limiting the generality nature or kind whatsoever, all as though such payment had not been made notwithstanding any intervening termination of the foregoing, the obligations of Guarantor under the guarantee contained in this Section 9.12 shall not be discharged or impaired or otherwise affected by, (i) the failure of any holder of a Share or Preferred Share or any Indemnified Person to assert any claim or demand or to enforce any right or remedy under other provision of this Section 9.12; (ii) any default, failure or delay, willful or otherwise, in the payment of all or any part of any Obligation; or (iii) any other act or omission or delay to do any other act which might in any manner or to the extent vary the risk of Guarantor or which would otherwise operate as a discharge of a guarantor as a matter of law, and Guarantor hereby waives (x) all presentments, demands for payment to Parent, notices of protest for non-payment, notices of default, any other notice, any proof of reliance by any holder of a Share or Preferred Share or any Indemnified Person upon the guarantee contained in this Section 9.12 or acceptance of the guarantee contained herein and all other formalities; (y) any rights to set-off, recoupments, claims, or counterclaims; and (z) any right to revoke or terminate this guaranteeAgreement. (c) In furtherance If the Purchaser fails to perform (in whole or in part) any of the foregoing Purchaser's Obligations when due and not in limitation of any other right which any holder of a Share or Preferred Share or any Indemnified Person may have at law or in equity against Guarantor by virtue of the guarantee contained in this Section 9.12, upon failure of Parent required to make any payment be performed pursuant to this Agreement, the Guarantor shall perform (or shall cause any Obligations, when and as of its Affiliates to perform) all such unperformed Purchaser's Obligations on the same shall become due whether at Closingterms and conditions, under any provision contained and in the same manner, as is required by the terms of this Agreement or transactions contemplated hereby or otherwiseand, in particular, the Guarantor shall pay (or cause to be paid) all such Obligationamount(s) as may be due in respect of such unperformed Purchaser's Obligations without any withholding, deduction, counterclaim or set-off for any reason or on any account whatsoever. (d) The Guarantor shall be required to perform under the Guarantee only after: (i) all grace periods provided to the Purchaser under this Agreement have expired; (ii) the expiration of a period of seven days from the date on which the Vendor sends to the Guarantor, in accordance with Section 15.2, a written notice: (A) stating that the Vendor intends to make a claim under the Guarantee; and (B) containing reasonable summary particulars of the unperformed Purchaser's Obligations to which such claim relates. (e) Except for the notice and time and grace period requirements set forth in Subsection 3.7(d): (i) the Guarantee is in no way conditional upon any requirement that the Vendor first attempt to have the Purchaser perform any of the Purchaser's Obligations or that the Vendor resort to any security or other means of obtaining payment and/or performance of such obligations; and (ii) the Guarantor hereby waives notice of promptness, diligence, demand, protest, proof or notice of non-payment and notice of acceptance; and any other notice with respect to any of the obligations guaranteed by it pursuant to the Guarantee. (f) Notwithstanding any provision of this Agreement to the contrary, the Guarantor shall be entitled to assert as a defence to any claim for payment or performance of the Purchaser's Obligations guaranteed by the Guarantor pursuant to the Guarantee, that such Purchaser's Obligations either: (i) are not currently due under the terms of this Agreement; or (ii) have previously been paid and performed in full. (g) The Guarantee may not be amended or modified except by a writing to such explicit effect duly executed by both the Guarantor and the Vendor. Upon making any payment or performance with respect to any Purchaser's Obligations, the Guarantor shall be subrogated to the right of the Vendor against Purchaser with respect to such payment; provided that Guarantor shall not enforce any payment right by way of subrogation until the underlying Purchaser's Obligation has been fully paid, performed and satisfied. (h) The Guarantee shall remain in full force and effect until the earliest date on which each and all of the Purchaser's Obligations have been fully paid, performed and satisfied, whereupon the Guarantee shall expire, and the Guarantor’s liability hereunder shall be fully discharged. Notwithstanding the foregoing, the Guarantee shall in any event automatically terminate and expire on the later of the following two dates to occur (i) that date which is the sixth anniversary of the Agreement Date; or (ii) in the event that a claim for indemnification under this Agreement made by the Vendor is then pending, that date which is sixty (60) days after the date on which a final determination of such claim for indemnification has been rendered and any and all obligations in connection therewith have been fully paid, performed and satisfied. (i) The Guarantee shall be governed by the laws of the Province of Ontario. Any suit, action, or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, the Guarantee may only be brought in the courts of competent jurisdiction in the Province of Ontario. Each of the Guarantor and the Vendor hereby consents and submits to the jurisdiction of such courts (and of the appropriate appellate court therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, actions or proceeding which is brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party thereto anywhere in the world, whether within or without the jurisdiction of any such court. (j) Notwithstanding anything to the contrary set forth in this Section 9.123.7, Guarantor the Guarantor’s total aggregate liability under the Guarantee shall have not in any circumstances exceed the right to assert as a defense to any lower of: (i) the actual outstanding liability of its obligations hereunder any defense or exercise of rights that would be available to it had it entered into the Obligations directly in Purchaser under the place of ParentAgreement; and (ii) OXX XXXXXXX XXXXXX-XXXXX XXXXXXX XXXX XXXXXXX XXXXXXXX XXXXXX XXXXXX DOLLARS ($187,500,000).