Guarantee of Performance. (a) Pemex hereby acknowledges that it is fully aware of the terms and conditions of the Maya Agreement and the transactions contemplated thereby, and Pemex hereby unconditionally and irrevocably guarantees to Beneficiary the performance by PMI when and as due of all of PMI's obligations under the Maya Agreement, including, without limitation, the payment of any damages of Beneficiary arising out of or based upon any failure of PMI to perform any obligation required of it under the Maya Agreement (the "Guaranteed Obligations"). (b) Subject to the provisions of Section 2 below, Pemex waives notice of the acceptance of this Guarantee and of the performance or nonperformance by PMI, demand for payment from PMI or any other Person and notice of nonpayment or failure to perform on the part of PMI, diligence, presentment, protest, dishonor (to the fullest extent permitted by law), all other demands or notices whatsoever other than a demand or demands for payment hereunder. The obligations of Pemex shall be absolute and unconditional and shall remain in full force and effect until satisfaction of all Guaranteed Obligations under this Section 1 and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by the existence of any claim, set-off, defense or other right that Pemex, PMI, or any Affiliate of PMI may have at any time and from time to time against Beneficiary or any of its Affiliates, whether in connection herewith or with any unrelated transactions; provided, however, that in respect of any amount owed to Beneficiary, Pemex shall be entitled to assert any claim, set-off, defense or other right of PMI under the Maya Agreement in respect of any of its obligations hereunder. (c) Subject to the provisions of Section 2 below, the obligations of Pemex under this Section 1 shall not be affected by the genuineness, validity, regularity or enforceability of any of PMI's obligations under the Maya Agreement, or any amendment, waiver or other modification thereof (except to the extent of such amendment, waiver or modification), or substitution, release or exchange of collateral for or other guarantee of any of the Guaranteed Obligations (except to the extent of such substitution, release or exchange) without the consent of Pemex, and priority or preference to which any other obligations of PMI may be entitled over PMI's obligations under the Maya Agreement or, to the fullest extent permitted by applicable law, any other circumstance which might otherwise constitute a legal or equitable defense to or discharge of the obligations of a surety or guarantor, including, without limitation, any defense arising out of any laws of any jurisdiction which would either exempt, modify or delay the due or punctual payment and performance of the obligations of Pemex hereunder. (d) Without limiting the generality of the foregoing and to the fullest extent permitted by law, it is agreed, subject to the provisions of Section 2 below, that the occurrence of any one or more of the following shall not affect the liability of Pemex under this Section 1: (i) the extension of the time for or waiver of, at any time or from time to time, without notice to Pemex, PMI's performance of or compliance with any of its obligations under the Maya Agreement, (except that such extension or waiver shall be given effect in determining the obligations of Pemex, hereunder), (ii) any assignment, transfer or other arrangement by which PMI transfers its right, under the Maya Agreement, (iii) any merger or consolidation of PMI or Pemex into or with any other Person, or (iv) and change in the ownership of any shares of capital stock of PMI or any Affiliate thereof. This Guarantee is an absolute, present and continuing guarantee and, except as provided in Section 2 hereof, is in no way conditional or contingent upon any attempt to collect from PMI any unpaid amounts due or otherwise to enforce performance by PMI.
Appears in 2 contracts
Samples: Maya Crude Oil Sales Agreement (Neches River Holding Corp), Guarantee Agreement (Neches River Holding Corp)
Guarantee of Performance. Corning shall guarantee and be responsible for the performance obligations of Corning Buyer in this Agreement in the event that Corning Buyer fails to perform or pay any such obligations; provided that in the event of any failure by Corning Buyer to perform or pay any such obligations, SDC agrees that it will proceed first against Corning Buyer and use reasonable best efforts to pursue any claims against Corning Buyer prior to proceeding against Corning under this Section 11.17.
(a) Pemex hereby acknowledges that it is fully aware Without limiting any of the terms obligations and conditions liabilities of the Maya Agreement Corning under this Agreement, Corning hereby absolutely, irrevocably and the transactions contemplated thereby, and Pemex hereby unconditionally and irrevocably guarantees to Beneficiary SDC, the full and prompt payment, performance by PMI when and as due satisfaction of all of PMI's obligations Corning Hungary’s and Corning Buyer’s obligations, duties, covenants, agreements, and liabilities to SDC arising under the Maya this Agreement, includingwhether such obligations, without limitationduties, covenants, agreements and liabilities of Corning Hungary or Corning Buyer arise prior to, on or after the payment of any damages of Beneficiary arising out of or based upon any failure of PMI to perform any obligation required of it under the Maya Agreement Closing Date (the "“Guaranteed Obligations"”).
(b) Subject to the provisions of Section 2 below, Pemex waives notice of the acceptance of this Guarantee and of the performance or nonperformance by PMI, demand for payment from PMI or any other Person and notice of nonpayment or failure to perform on the part of PMI, diligence, presentment, protest, dishonor (to the fullest extent permitted by law), all other demands or notices whatsoever other than a demand or demands for payment hereunder. The obligations of Pemex shall be absolute and unconditional and shall remain in full force and effect until satisfaction of all Guaranteed Obligations under this Section 1 and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by the existence of any claim, set-off, defense or other right that Pemex, PMI, or any Affiliate of PMI may have at any time and from time to time against Beneficiary or any of its Affiliates, whether in connection herewith or with any unrelated transactions; provided, however, that in respect of any amount owed to Beneficiary, Pemex shall be entitled to assert any claim, set-off, defense or other right of PMI under the Maya Agreement in respect of any of its obligations hereunder.
(c) Subject to the provisions of Section 2 below, the obligations of Pemex under this Section 1 shall not be affected by the genuineness, validity, regularity or enforceability of any of PMI's obligations under the Maya Agreement, or any amendment, waiver or other modification thereof (except to the extent of such amendment, waiver or modification), or substitution, release or exchange of collateral for or other guarantee of any of the Guaranteed Obligations (except to the extent of such substitution, release or exchange) without the consent of Pemex, and priority or preference to which any other obligations of PMI may be entitled over PMI's obligations under the Maya Agreement or, to To the fullest extent permitted by applicable lawLaw, the Guaranteed Obligations of Corning hereunder shall remain fully effective without regard to, and shall not be affected, limited or impaired in any way by: (i) any bankruptcy, insolvency, reorganization, adjustment, dissolution, liquidation, examinership or other like proceeding (each, an “Insolvency Proceeding”) relating to the any of the Parties or any Affiliates thereof or any other implied or express guaranty thereof; (ii) any action taken by any trustee or receiver, or by any court, in any Insolvency Proceeding, whether or not Corning shall have had notice or knowledge of any Insolvency Proceeding; (iii) any assignment of this Agreement by any party to any other party; (iv) any modification, alteration, amendment or addition of or to this Agreement; or (v) any defense of Corning Hungary, Corning Buyer or any other Person or any circumstance whatsoever (with or without notice to or knowledge of Corning) which may or might in any manner or to any extent vary the risks of Corning or might otherwise constitute a legal or equitable defense to or discharge of the obligations of a surety or guarantor, including, without limitation, any defense arising out of any laws of any jurisdiction which would either exempt, modify a guarantor or delay the due or punctual payment and performance of the obligations of Pemex hereunderotherwise.
(d) Without limiting the generality of the foregoing and to the fullest extent permitted by law, it is agreed, subject to the provisions of Section 2 below, that the occurrence of any one or more of the following shall not affect the liability of Pemex under this Section 1: (i) the extension of the time for or waiver of, at any time or from time to time, without notice to Pemex, PMI's performance of or compliance with any of its obligations under the Maya Agreement, (except that such extension or waiver shall be given effect in determining the obligations of Pemex, hereunder), (ii) any assignment, transfer or other arrangement by which PMI transfers its right, under the Maya Agreement, (iii) any merger or consolidation of PMI or Pemex into or with any other Person, or (iv) and change in the ownership of any shares of capital stock of PMI or any Affiliate thereof. This Guarantee is an absolute, present and continuing guarantee and, except as provided in Section 2 hereof, is in no way conditional or contingent upon any attempt to collect from PMI any unpaid amounts due or otherwise to enforce performance by PMI.
Appears in 2 contracts
Samples: Framework Agreement (Corning Inc /Ny), Framework Agreement (Corning Inc /Ny)
Guarantee of Performance. The Guarantor, as principal obligor and not as surety, unconditionally and irrevocably covenants with the Seller:
(a) Pemex hereby acknowledges that it is fully aware to cause the Purchaser to effect prompt and complete performance of all the terms, covenants, conditions and provisions of the terms Transaction Documents that are to be kept, observed and conditions of performed by the Maya Agreement and the transactions contemplated thereby, and Pemex hereby unconditionally and irrevocably guarantees to Beneficiary the performance by PMI when and as due of all of PMI's obligations under the Maya Agreement, including, without limitation, the payment of any damages of Beneficiary arising out of or based upon any failure of PMI to perform any obligation required of it under the Maya Agreement (the "Guaranteed Obligations").Purchaser;
(b) Subject that, if for any reason whatsoever, including the insolvency or bankruptcy of the Purchaser, or if the Purchaser shall at any time or from time to time fail to keep, perform or observe any term, covenant, condition or provision of any of the Transaction Documents that is to be kept, observed or performed by the Purchaser, then the Guarantor shall forthwith on demand of the Seller, perform or observe, as the case may be, such term, covenant, condition or provision in accordance with the relevant provisions of the Transaction Documents; and
(c) that the Guarantor is jointly and severally bound with the Purchaser to perform the terms, covenants, obligations (including indemnification), conditions and provisions of the Transaction Documents that are to be kept, observed and performed by the Purchaser and, in the enforcement of its rights pursuant to this Section 9.28 the Seller may proceed against the Guarantor as if the Guarantor was a principal party under this Agreement with respect to such terms, covenants, conditions and provisions applicable to the provisions Purchaser. In the event of Section 2 below, Pemex waives notice a default by the Purchaser under any of the acceptance of this Guarantee Transaction Documents, the Guarantor waives notice, presentment and any right to require the Seller to:
(d) proceed against the Purchaser or pursue any rights or remedies with respect to the Transaction Documents against the Purchaser, or
(e) pursue any other remedy whatsoever in the power of the performance or nonperformance by PMI, demand for payment from PMI or any other Person and notice of nonpayment or failure to perform on the part of PMI, diligence, presentment, protest, dishonor (Seller prior to the fullest extent permitted by law), all other demands or notices whatsoever other than a demand or demands for payment hereunderSeller pursuing any rights it may have under the Transaction Documents against the Guarantor. The obligations of Pemex shall be absolute and unconditional and shall remain in full force and effect until satisfaction of all Guaranteed Obligations under this Section 1 and, without Execution Copy Without limiting the generality of the foregoing, the liability of the Guarantor shall not be deemed to have been waived, released, discharged discharged, impaired or affected by reason of the release or discharge of the Purchaser in any receivership, bankruptcy, winding-up or other creditors' proceedings or the rejection, disaffirmance or disclaimer of any of the Transaction Documents in any proceeding or any other matter, and shall continue with respect to the periods prior thereto and thereafter, for and with respect to the Transaction Documents. This guarantee shall continue notwithstanding any assignment of this Agreement by the Purchaser to an Affiliate or otherwise affected by the existence of any claimpursuant to Section 9.28 and shall apply, set-offmutatis, defense or other right that Pemexmutandis, PMI, or any Affiliate of PMI may have at any time and from time to time against Beneficiary or any of its Affiliates, whether in connection herewith or with any unrelated transactions; provided, however, that in respect of any amount owed to Beneficiary, Pemex shall be entitled to assert any claim, set-off, defense or other right of PMI under the Maya Agreement in respect of any of its obligations hereunder.
(c) Subject to the provisions of Section 2 below, the obligations of Pemex under this Section 1 shall not be affected by the genuineness, validity, regularity or enforceability of any of PMI's obligations under the Maya Agreement, or any amendment, waiver or other modification thereof (except to the extent of such amendment, waiver or modification), or substitution, release or exchange of collateral for or other guarantee of any Affiliate of the Guaranteed Obligations (except Purchaser in the event any such Affiliate is a party to the extent of such substitution, release or exchange) without the consent of Pemex, and priority or preference to which any other obligations of PMI may be entitled over PMI's obligations under the Maya Agreement or, to the fullest extent permitted by applicable law, any other circumstance which might otherwise constitute a legal or equitable defense to or discharge Transaction Document in lieu of the obligations of a surety or guarantor, including, without limitation, any defense arising out of any laws of any jurisdiction which would either exempt, modify or delay the due or punctual payment and performance of the obligations of Pemex hereunderPurchaser.
(d) Without limiting the generality of the foregoing and to the fullest extent permitted by law, it is agreed, subject to the provisions of Section 2 below, that the occurrence of any one or more of the following shall not affect the liability of Pemex under this Section 1: (i) the extension of the time for or waiver of, at any time or from time to time, without notice to Pemex, PMI's performance of or compliance with any of its obligations under the Maya Agreement, (except that such extension or waiver shall be given effect in determining the obligations of Pemex, hereunder), (ii) any assignment, transfer or other arrangement by which PMI transfers its right, under the Maya Agreement, (iii) any merger or consolidation of PMI or Pemex into or with any other Person, or (iv) and change in the ownership of any shares of capital stock of PMI or any Affiliate thereof. This Guarantee is an absolute, present and continuing guarantee and, except as provided in Section 2 hereof, is in no way conditional or contingent upon any attempt to collect from PMI any unpaid amounts due or otherwise to enforce performance by PMI.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Flextronics International LTD), Asset Purchase Agreement (Flextronics International LTD)
Guarantee of Performance. (a) Pemex BFC hereby acknowledges that it is fully aware of the terms irrevocably and conditions of the Maya Agreement and the transactions contemplated thereby, and Pemex hereby unconditionally and irrevocably guarantees to Beneficiary Sellers the performance prompt and full discharge by PMI Buyer of all of Buyer's covenants, agreements, obligations and liabilities under this Agreement including the due and punctual payment of all amounts which are or may become due and payable by Buyer or any of its permitted assignees or designees hereunder (such assignees and designees together with Buyer for purposes of this Section 11.14, the "BUYER PARTIES"), when and as the same shall become due of all of PMI's obligations under the Maya Agreement, including, without limitationand payable (collectively, the "BUYER OBLIGATIONS"), in accordance with the terms hereof. BFC acknowledges and agrees that, with respect to all Buyer Obligations to pay money, such guaranty shall be a guaranty of payment and performance and not of collection and shall not be conditioned or contingent upon the pursuit of any remedies against any Buyer Party. If any Buyer Party shall default in the due and punctual performance of any Buyer Obligation, including the full and timely payment of any damages amount due and payable pursuant to any Buyer Obligation, BFC will forthwith perform or cause to be performed such Buyer Obligation and will forthwith make full payment of Beneficiary arising out any amount due with respect thereto at its sole cost and expense. This Section 11.14(a) shall terminate and be of no further force or based effect upon any failure of PMI to perform any obligation required of it under and after the Maya Agreement (date that the "Guaranteed Obligations")Buyer Obligations shall have been paid or performed in full.
(b) Subject to the provisions of Section 2 below, Pemex waives notice of the acceptance of this Guarantee and of the performance or nonperformance by PMI, demand for payment from PMI or any other Person and notice of nonpayment or failure to perform on the part of PMI, diligence, presentment, protest, dishonor (to the fullest extent permitted by law11.14(g), all other demands or notices whatsoever other than a demand or demands for payment hereunder. The liabilities and obligations of Pemex shall be absolute and BFC pursuant to Section 11.14(a) are unconditional and shall remain in full force and effect until satisfaction of all Guaranteed Obligations under this Section 1 absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by the existence of by:
(i) any claimacceleration, set-offextension, defense renewal, settlement, compromise, waiver or other right that Pemex, PMI, or any Affiliate of PMI may have at any time and from time to time against Beneficiary or any of its Affiliates, whether in connection herewith or with any unrelated transactions; provided, however, that release in respect of any amount owed Buyer Obligation by operation of law or otherwise;
(ii) any modification or amendment of or supplement to Beneficiarythis Agreement entered into in accordance with its terms;
(iii) any change in the existence, Pemex shall be entitled to assert structure or ownership of any claimBuyer Party or BFC or any insolvency, set-offbankruptcy, defense reorganization or other right similar proceeding affecting any of PMI under the Maya Agreement in respect them or their assets; or
(iv) any other act, omission to act, delay of any kind by any party hereto or any other Person, or any other circumstance whatsoever that might, but for the provisions of its this Section 11.14, constitute a legal or equitable discharge of the obligations of BFC, as guarantor to the extent set forth hereunder.
(c) Subject BFC hereby waives any right, whether legal or equitable, statutory or non-statutory, to the provisions of Section 2 below, the obligations of Pemex under this Section 1 shall not be affected by the genuineness, validity, regularity require any Seller to proceed against or enforceability of take any of PMI's obligations under the Maya Agreement, action against or pursue any remedy with respect to any Buyer Party or any amendment, waiver other Person or other modification thereof (except to the extent make presentment or demand for performance or give any notice of such amendment, waiver or modification), or substitution, release or exchange of collateral for or other guarantee of nonperformance before any of the Guaranteed Obligations (except to the extent of such substitution, release or exchange) without the consent of Pemex, and priority or preference to which any other obligations of PMI party hereto may be entitled over PMI's obligations under the Maya Agreement or, to the fullest extent permitted by applicable law, any other circumstance which might otherwise constitute a legal or equitable defense to or discharge of the obligations of a surety or enforce its rights hereunder against BFC as guarantor, including, without limitation, any defense arising out of any laws of any jurisdiction which would either exempt, modify or delay the due or punctual payment and performance of the obligations of Pemex hereunder.
(d) Without limiting the generality of the foregoing and to the fullest extent permitted by law, it is agreed, subject to the provisions of Section 2 below, that the occurrence of any one or more of the following shall not affect the liability of Pemex under this Section 1: (i) the extension of the time for or waiver of, at any time or from time to time, without notice to Pemex, PMI's performance of or compliance with any of its obligations under the Maya Agreement, (except that such extension or waiver shall be given effect in determining the obligations of Pemex, hereunder), (ii) any assignment, transfer or other arrangement by which PMI transfers its right, under the Maya Agreement, (iii) any merger or consolidation of PMI or Pemex into or with any other Person, or (iv) and change in the ownership of any shares of capital stock of PMI or any Affiliate thereof. This Guarantee is an absolute, present and continuing guarantee and, except as provided in Section 2 hereof, is in no way conditional or contingent upon any attempt to collect from PMI any unpaid amounts due or otherwise to enforce performance by PMI.
Appears in 1 contract
Guarantee of Performance. The Guarantor, as principal obligor and not as surety, unconditionally and irrevocably covenants with the Seller:
(a) Pemex hereby acknowledges that it is fully aware to cause the Purchaser to effect prompt and complete performance of all the terms, covenants, conditions and provisions of the terms Transaction Documents that are to be kept, observed and conditions of performed by the Maya Agreement and the transactions contemplated thereby, and Pemex hereby unconditionally and irrevocably guarantees to Beneficiary the performance by PMI when and as due of all of PMI's obligations under the Maya Agreement, including, without limitation, the payment of any damages of Beneficiary arising out of or based upon any failure of PMI to perform any obligation required of it under the Maya Agreement (the "Guaranteed Obligations").Purchaser;
(b) Subject that, if for any reason whatsoever, including the insolvency or bankruptcy of the Purchaser, or if the Purchaser shall at any time or from time to time fail to keep, perform or observe any term, covenant, condition or provision of any of the Transaction Documents that is to be kept, observed or performed by the Purchaser, then the Guarantor shall forthwith on demand of the Seller, perform or observe, as the case may be, such term, covenant, condition or provision in accordance with the relevant provisions of the Transaction Documents; and
(c) that the Guarantor is jointly and severally bound with the Purchaser to perform the terms, covenants, obligations (including indemnification), conditions and provisions of the Transaction Documents that are to be kept, observed and performed by the Purchaser and, in the enforcement of its rights pursuant to this Section 9.28 the Seller may proceed against the Guarantor as if the Guarantor was a principal party under this Agreement with respect to such terms, covenants, conditions and provisions applicable to the provisions Purchaser. In the event of Section 2 below, Pemex waives notice a default by the Purchaser under any of the acceptance of this Guarantee Transaction Documents, the Guarantor waives notice, presentment and any right to require the Seller to:
(d) proceed against the Purchaser or pursue any rights or remedies with respect to the Transaction Documents against the Purchaser, or
(e) pursue any other remedy whatsoever in the power of the performance or nonperformance by PMI, demand for payment from PMI or any other Person and notice of nonpayment or failure to perform on the part of PMI, diligence, presentment, protest, dishonor (Seller prior to the fullest extent permitted by law), all other demands or notices whatsoever other than a demand or demands for payment hereunderSeller pursuing any rights it may have under the Transaction Documents against the Guarantor. The obligations of Pemex shall be absolute and unconditional and shall remain in full force and effect until satisfaction of all Guaranteed Obligations under this Section 1 and, without Without limiting the generality of the foregoing, the liability of the Guarantor shall not be deemed to have been waived, released, discharged discharged, impaired or affected by reason of the release or discharge of the Purchaser in any receivership, bankruptcy, winding-up or other creditors’ proceedings or the rejection, disaffirmance or disclaimer of any of the Transaction Documents in any proceeding or any other matter, and shall continue with respect to the periods prior thereto and thereafter, for and with respect to the Transaction Documents. This guarantee shall continue notwithstanding any assignment of this Agreement by the Purchaser to an Affiliate or otherwise affected by the existence of any claimpursuant to Section 9.28 and shall apply, set-offmutatis, defense or other right that Pemexmutandis, PMI, or any Affiliate of PMI may have at any time and from time to time against Beneficiary or any of its Affiliates, whether in connection herewith or with any unrelated transactions; provided, however, that in respect of any amount owed to Beneficiary, Pemex shall be entitled to assert any claim, set-off, defense or other right of PMI under the Maya Agreement in respect of any of its obligations hereunder.
(c) Subject to the provisions of Section 2 below, the obligations of Pemex under this Section 1 shall not be affected by the genuineness, validity, regularity or enforceability of any of PMI's obligations under the Maya Agreement, or any amendment, waiver or other modification thereof (except to the extent of such amendment, waiver or modification), or substitution, release or exchange of collateral for or other guarantee of any Affiliate of the Guaranteed Obligations (except Purchaser in the event any such Affiliate is a party to the extent of such substitution, release or exchange) without the consent of Pemex, and priority or preference to which any other obligations of PMI may be entitled over PMI's obligations under the Maya Agreement or, to the fullest extent permitted by applicable law, any other circumstance which might otherwise constitute a legal or equitable defense to or discharge Transaction Document in lieu of the obligations of a surety or guarantor, including, without limitation, any defense arising out of any laws of any jurisdiction which would either exempt, modify or delay the due or punctual payment and performance of the obligations of Pemex hereunderPurchaser.
(d) Without limiting the generality of the foregoing and to the fullest extent permitted by law, it is agreed, subject to the provisions of Section 2 below, that the occurrence of any one or more of the following shall not affect the liability of Pemex under this Section 1: (i) the extension of the time for or waiver of, at any time or from time to time, without notice to Pemex, PMI's performance of or compliance with any of its obligations under the Maya Agreement, (except that such extension or waiver shall be given effect in determining the obligations of Pemex, hereunder), (ii) any assignment, transfer or other arrangement by which PMI transfers its right, under the Maya Agreement, (iii) any merger or consolidation of PMI or Pemex into or with any other Person, or (iv) and change in the ownership of any shares of capital stock of PMI or any Affiliate thereof. This Guarantee is an absolute, present and continuing guarantee and, except as provided in Section 2 hereof, is in no way conditional or contingent upon any attempt to collect from PMI any unpaid amounts due or otherwise to enforce performance by PMI.
Appears in 1 contract
Guarantee of Performance. (a) Pemex hereby acknowledges that it is fully aware of the terms and conditions of the Maya Agreement and the transactions contemplated thereby, and Pemex hereby unconditionally and irrevocably guarantees to Beneficiary the performance by PMI when and as due of all of PMI's obligations under the Maya Agreement, including, without limitation, the payment of any damages of Beneficiary arising out of or based upon any failure of PMI to perform any obligation required of it under the Maya Agreement If either party (the "Guaranteed ObligationsInsolvent Party").
) becomes insolvent; if the other party (bthe "Insecure Party") Subject to has evidence that the provisions of Section 2 below, Pemex waives notice Insolvent Party is not paying its bills when due without just cause; if a receiver of the acceptance of this Guarantee and of Insolvent Party's assets is appointed; if the performance Insolvent Party takes any step leading to its cessation as a going concern; or nonperformance by PMI, demand if the Insolvent Party either ceases or suspends operations for payment from PMI or any other Person and notice of nonpayment or failure to perform on the part of PMI, diligence, presentment, protest, dishonor (to the fullest extent permitted by law), all other demands or notices whatsoever reasons other than a demand or demands for payment hereunder. The obligations strike, then immediately upon receipt of Pemex shall be absolute and unconditional and shall remain in full force and effect until satisfaction of all Guaranteed Obligations under this Section 1 andwritten notice from the Insecure Party the Insolvent Party will provide adequate assurance, without limiting satisfactory to the generality Insecure Party, of the foregoingfuture performance of this Agreement. If bankruptcy proceedings are commenced with respect to the Insolvent Party, shall then the Insecure Party may suspend all further performance of this Agreement until the Insolvent Party assumes or rejects this Agreement pursuant to section 365 of the Bankruptcy Code or any similar or successor provision. Any such suspension of further performance by the Insecure Party pending the Insolvent Party's assumption or rejection will not be released, discharged a breach of this Agreement and will not affect the Insecure Party's right to pursue or otherwise affected by the existence of any claim, set-off, defense or other right that Pemex, PMI, or any Affiliate of PMI may have at any time and from time to time against Beneficiary or enforce any of its Affiliates, whether in connection herewith or with any unrelated transactions; provided, however, that in respect of any amount owed to Beneficiary, Pemex shall be entitled to assert any claim, set-off, defense or other right of PMI under the Maya Agreement in respect of any of its obligations hereunder.
(c) Subject to the provisions of Section 2 below, the obligations of Pemex rights under this Section 1 shall not be affected by the genuineness, validity, regularity Agreement or enforceability of any of PMI's obligations under the Maya Agreementotherwise 20 Third Party Rights. Nothing contained in this Agreement establishes or creates, or is intended or will be construed to establish or create, any amendmentright in or any duty or obligation to any third party. CONFIDENTIAL TREATMENT 21 REQUESTED BY GALILEO INTERNATIONAL, waiver INC. 21 Assignment. United may assign or other modification thereof (except transfer this Agreement or any rights granted or provided for hereunder, in whole or in part, to the extent of such amendmentany person or entity that is controlled by United, waiver otherwise United may not assign or modification)transfer this Agreement or any rights granted or provided for hereunder, in whole or substitutionin part, release or exchange of collateral for or other guarantee of any of the Guaranteed Obligations (except to the extent of such substitution, release or exchange) without the consent written Agreement of PemexGI-Inc. GI-Inc may assign or transfer this Agreement or any rights granted or provided for hereunder, and priority in whole or preference to which any other obligations of PMI may be entitled over PMI's obligations under the Maya Agreement orin part, to the fullest extent permitted any person or entity that is controlled by applicable lawGI-Inc, otherwise GI-Inc may not assign or transfer this Agreement or any other circumstance which might otherwise constitute a legal rights granted or equitable defense to provided for hereunder, in whole or discharge of the obligations of a surety or guarantor, includingin part, without limitation, any defense arising out the written Agreement of any laws of any jurisdiction which would either exempt, modify or delay the due or punctual payment and performance of the obligations of Pemex hereunderUnited.
(d) Without limiting the generality of the foregoing and to the fullest extent permitted by law, it is agreed, subject to the provisions of Section 2 below, that the occurrence of any one or more of the following shall not affect the liability of Pemex under this Section 1: (i) the extension of the time for or waiver of, at any time or from time to time, without notice to Pemex, PMI's performance of or compliance with any of its obligations under the Maya Agreement, (except that such extension or waiver shall be given effect in determining the obligations of Pemex, hereunder), (ii) any assignment, transfer or other arrangement by which PMI transfers its right, under the Maya Agreement, (iii) any merger or consolidation of PMI or Pemex into or with any other Person, or (iv) and change in the ownership of any shares of capital stock of PMI or any Affiliate thereof. This Guarantee is an absolute, present and continuing guarantee and, except as provided in Section 2 hereof, is in no way conditional or contingent upon any attempt to collect from PMI any unpaid amounts due or otherwise to enforce performance by PMI.
Appears in 1 contract
Samples: Marketing Cooperation and Sales Representation Agreement (Galileo International Inc)
Guarantee of Performance. The Guarantor, as principal obligor and not as surety, unconditionally and irrevocably covenants with the Sellers:
(a) Pemex hereby acknowledges that it is fully aware to cause the Purchaser to effect prompt and complete performance of all the terms, covenants, conditions and provisions of the terms Transaction Documents that are to be kept, observed and conditions of performed by the Maya Agreement and the transactions contemplated thereby, and Pemex hereby unconditionally and irrevocably guarantees to Beneficiary the performance by PMI when and as due of all of PMI's obligations under the Maya Agreement, including, without limitation, the payment of any damages of Beneficiary arising out of or based upon any failure of PMI to perform any obligation required of it under the Maya Agreement (the "Guaranteed Obligations").Purchaser;
(b) Subject that, if for any reason whatsoever, including the insolvency or bankruptcy of the Purchaser, or if the Purchaser shall at any time or from time to time fail to keep, perform or observe any term, covenant, condition or provision of any of the Transaction Documents that is to be kept, observed or performed by the Purchaser, then the Guarantor shall forthwith on demand of the Sellers’ Agent, perform or observe, as the case may be, such term, covenant, condition or provision in accordance with the relevant provisions of the Transaction Documents; and
(c) that the Guarantor is jointly and severally bound with the Purchaser to perform the terms, covenants, obligations (including indemnification), conditions and provisions of the Transaction Documents that are to be kept, observed and performed by the Purchaser and, in the enforcement of its rights pursuant to this Section 13.16 the Sellers may proceed against the Guarantor as if the Guarantor was a principal party under this Agreement with respect to such terms, covenants, conditions and provisions applicable to the provisions Purchaser. In the event of Section 2 below, Pemex waives notice a default by the Purchaser under any of the acceptance of this Guarantee Transaction Documents, the Guarantor waives notice, presentment and any right to require the Sellers to:
(d) proceed against the Purchaser or pursue any rights or remedies with respect to the Transaction Documents against the Purchaser, or
(e) pursue any other remedy whatsoever in the power of the performance or nonperformance by PMI, demand for payment from PMI or any other Person and notice of nonpayment or failure to perform on the part of PMI, diligence, presentment, protest, dishonor (Sellers prior to the fullest extent permitted by law), all other demands or notices whatsoever other than a demand or demands for payment hereunderSellers pursuing any rights it may have under the Transaction Documents against the Guarantor. The obligations of Pemex shall be absolute and unconditional and shall remain in full force and effect until satisfaction of all Guaranteed Obligations under this Section 1 and, without Without limiting the generality of the foregoing, the liability of the Guarantor shall not be deemed to have been waived, released, discharged discharged, impaired or otherwise affected by reason of the existence release or discharge of the Purchaser in any receivership, bankruptcy, winding-up or other creditors’ proceedings or the rejection, disaffirmance or disclaimer of any claim, set-off, defense or other right that Pemex, PMI, of the Transaction Documents in any proceeding or any Affiliate other matter, and shall continue with respect to the periods prior thereto and thereafter, for and with respect to the Transaction Documents. This Section 13.16 shall be solely for the benefit of PMI may have at the Sellers and shall not in any time and from time way obligate the Guarantor to time against Beneficiary or any of its Affiliatesother Person. This guarantee shall apply, whether in connection herewith or with any unrelated transactions; providedmutatis mutandis, however, that in respect of any amount owed Affiliate of the Purchaser in the event any such Affiliate is a party to Beneficiary, Pemex any Transaction Document in lieu of the Purchaser. This guarantee shall be entitled to assert continue notwithstanding any claim, set-off, defense or other right assignment of PMI under the Maya this Agreement in respect of any of its obligations hereunder.
(c) Subject to the provisions of Section 2 below, the obligations of Pemex under this Section 1 shall not be affected by the genuineness, validity, regularity or enforceability of any of PMI's obligations under the Maya Agreement, or any amendment, waiver or other modification thereof (except Purchaser to the extent of such amendment, waiver or modification), or substitution, release or exchange of collateral for or other guarantee of any of the Guaranteed Obligations (except to the extent of such substitution, release or exchange) without the consent of Pemex, and priority or preference to which any other obligations of PMI may be entitled over PMI's obligations under the Maya Agreement or, to the fullest extent permitted by applicable law, any other circumstance which might otherwise constitute a legal or equitable defense to or discharge of the obligations of a surety or guarantor, including, without limitation, any defense arising out of any laws of any jurisdiction which would either exempt, modify or delay the due or punctual payment and performance of the obligations of Pemex hereunder.
(d) Without limiting the generality of the foregoing and to the fullest extent permitted by law, it is agreed, subject to the provisions of Section 2 below, that the occurrence of any one or more of the following shall not affect the liability of Pemex under this Section 1: (i) the extension of the time for or waiver of, at any time or from time to time, without notice to Pemex, PMI's performance of or compliance with any of its obligations under the Maya Agreement, (except that such extension or waiver shall be given effect in determining the obligations of Pemex, hereunder), (ii) any assignment, transfer or other arrangement by which PMI transfers its right, under the Maya Agreement, (iii) any merger or consolidation of PMI or Pemex into or with any other Person, or (iv) and change in the ownership of any shares of capital stock of PMI or any an Affiliate thereof. This Guarantee is an absolute, present and continuing guarantee and, except as provided in Section 2 hereof, is in no way conditional or contingent upon any attempt to collect from PMI any unpaid amounts due or otherwise pursuant to enforce performance by PMISection 13.12.
Appears in 1 contract
Samples: Share Purchase Agreement (Apogee Enterprises, Inc.)
Guarantee of Performance. (a) Pemex hereby acknowledges that it is fully aware In order to induce MEDA to enter into the foregoing Agreement, VIVUS, INC., a corporation organized under the laws of the terms state of Delaware and conditions having a principal place of the Maya Agreement and the transactions contemplated therebybusiness at 1172 Castro Street, Mountain View, CA 94040, and Pemex being the sole shaxxxxxxxx xx XXXXX, hereby irrevocably and unconditionally guarantees any and irrevocably guarantees to Beneficiary the performance by PMI when and as due of all of PMI's obligations under the Maya Agreement, including, without limitation, the payment of any damages of Beneficiary arising out of or based upon any failure of PMI to perform any obligation required of it under the Maya Agreement (the "Guaranteed Obligations").
(b) Subject to the provisions of Section 2 below, Pemex waives notice of the acceptance of this Guarantee and of the performance or nonperformance by PMI, demand for payment from PMI or any other Person and notice of nonpayment or failure to perform on the part of PMI, diligence, presentment, protest, dishonor (to the fullest extent permitted by law), all other demands or notices whatsoever other than a demand or demands for payment hereunder. The obligations of Pemex shall be absolute and unconditional and shall remain in full force and effect until satisfaction of all Guaranteed Obligations under this Section 1 and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by the existence of any claim, set-off, defense or other right that Pemex, PMI, or any Affiliate of PMI may have at any time and from time to time against Beneficiary or any of its Affiliates, whether in connection herewith or with any unrelated transactions; provided, however, that in respect of any amount owed to Beneficiary, Pemex shall be entitled to assert any claim, set-off, defense or other right of PMI under the Maya Agreement in respect of any of its obligations hereunder.
(c) Subject to the provisions of Section 2 below, the obligations of Pemex under this Section 1 shall not be affected by the genuineness, validity, regularity or enforceability of any of PMI's obligations under the Maya Agreement, or any amendment, waiver or other modification thereof (except to the extent of such amendment, waiver or modification), or substitution, release or exchange of collateral for or other guarantee of any of the Guaranteed Obligations (except to the extent of such substitution, release or exchange) without the consent of Pemex, and priority or preference to which any other obligations of PMI may be entitled over PMI's obligations under the Maya Agreement or, to the fullest extent permitted by applicable law, any other circumstance which might otherwise constitute a legal or equitable defense to or discharge of the obligations of a surety or guarantor, including, without limitation, any defense payment obligations) of VIVUS to MEDA, whether or not existing or hereinafter arising out pursuant to the foregoing Agreement (including, without limitation, all agreements, grants, Undertakings, licenses and sublicenses now or hereafter entered into pursuant to the Agreement (collectively, the "VIVUS Undertakings") or as such VIVUS Undertakings may be hereinafter amended or modified (with or without notice to or consent of VIVUS INC.). VIVUS INC. further agrees that VIVUS Undertakings may be extended, renewed, modified, amended or compromised in any way, with or without notice to or consent of VIVUS INC. Notice of acceptance of the Guaranty and of the incurring of any laws obligation or any default of the VIVUS Undertakings, as well as demand and protest with respect to such VIVUS Undertakings and as well as any jurisdiction which would either exemptright to challenge or dispute the validity and enforceability of this Guarantee, modify or delay the due or punctual are hereby waived by VIVUS INC. This Guaranty shall be an irrevocable, continuing, absolute and unconditional guaranty of payment and performance of the obligations of Pemex hereunder.
(d) Without limiting the generality of the foregoing and by VIVUS pursuant to the fullest extent permitted by lawVIVUS Undertakings. VIVUS INC. represents, it covenants and warrants to MEDA as follows, upon which MEDA relies in acceptance of this Guaranty: that (i) VIVUS INC. is agreedthe sole shareholder of all of issued and outstanding capital stock of VIVUS, subject (ii) VIVUS INC. will benefit from the Agreement between VIVUS and MEDA, (iii) VIVUS INC. has received good and valuable consideration for its execution, delivery and performance of this Guaranty, and (iv) VIVUS INC. has executed and delivered this Guaranty to MEDA. Notice to VIVUS INC. shall be given pursuant to the provisions of Section 2 below, that 19.5 of the occurrence Agreement. This Guaranty shall be governed by and construed in accordance with the laws of the State of California and shall take effect as an instrument under seal. In the event of any one or more of the following shall not affect the liability of Pemex dispute under this Section 1: (i) the extension of the time for Guaranty, as to construction or waiver of, at any time or from time to time, without notice to Pemex, PMI's performance of this Guaranty or compliance with any of its obligations under the Maya Agreementprovisions or otherwise, (except that such extension or waiver dispute shall be given effect settled in determining the obligations of Pemex, hereunder), (ii) any assignment, transfer or other arrangement by which PMI transfers its right, under the Maya Agreement, (iii) any merger or consolidation of PMI or Pemex into or with any other Person, or (iv) and change in the ownership of any shares of capital stock of PMI or any Affiliate thereof. This Guarantee is an absolute, present and continuing guarantee and, except as provided in Section 2 hereof, is in no way conditional or contingent upon any attempt to collect from PMI any unpaid amounts due or otherwise to enforce performance by PMI.accordance with
Appears in 1 contract
Samples: Supply Agreement (Vivus Inc)
Guarantee of Performance. (a) Pemex hereby acknowledges that it is fully aware The Guarantors hereby, jointly and severally, irrevocably and unconditionally guarantee to the Sellers the prompt and full discharge by the Purchaser of all of the terms Purchaser’s covenants, agreements, obligations and conditions liabilities under each of the Maya this Agreement and the transactions contemplated therebyAncillary Agreements (as the same may be amended from time to time in accordance with the terms thereof), including the due and Pemex hereby unconditionally punctual payment of all amounts which are or may become due and irrevocably guarantees to Beneficiary payable by the performance by PMI Purchaser or any of its permitted assignees or designees hereunder or thereunder (such assignees and designees together with the Purchaser for purposes of this Section 11.13, the “Purchaser Parties”), when and as the same shall become due of all of PMI's obligations under the Maya Agreement, including, without limitationand payable (collectively, the “Purchaser Obligations”), in accordance with the terms hereof or thereof. Each of the Guarantors acknowledges and agrees that, with respect to all the Purchaser Obligations to pay money, such guaranty shall be a guaranty of payment and performance and not of collection and shall not be conditioned or contingent upon the pursuit of any remedies against any Purchaser Party. If any Purchaser Party shall default in the due and punctual performance of any Purchaser Obligation, including the full and timely payment of any damages amount due and payable pursuant to any Purchaser Obligation, the Guarantors will forthwith, jointly and severally, perform or cause to be performed such Purchaser Obligation and will forthwith, jointly and severally, make full payment of Beneficiary arising out any amount due with respect thereto at their sole cost and expense. This Section 11.13(a) shall terminate and be of no further force or based effect upon any failure of PMI to perform any obligation required of it under and after the Maya Agreement (the "Guaranteed Obligations")date that Purchaser Obligations shall have been performed in full.
(b) Subject to the provisions of Section 2 below, Pemex waives notice The liabilities and obligations of the acceptance of this Guarantee and of the performance or nonperformance by PMI, demand for payment from PMI or any other Person and notice of nonpayment or failure Guarantors pursuant to perform on the part of PMI, diligence, presentment, protest, dishonor (to the fullest extent permitted by law), all other demands or notices whatsoever other than a demand or demands for payment hereunder. The obligations of Pemex shall be absolute and Section 11.13(a) are unconditional and shall remain in full force and effect until satisfaction of all Guaranteed Obligations under this Section 1 absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by the existence of by:
(i) any claimacceleration, set-offextension, defense renewal, settlement, compromise, waiver or other right that Pemex, PMI, or any Affiliate of PMI may have at any time and from time to time against Beneficiary or any of its Affiliates, whether in connection herewith or with any unrelated transactions; provided, however, that release in respect of any amount owed Purchaser Obligation by operation of law or otherwise;
(ii) the invalidity or unenforceability, in whole or in part, of this Agreement;
(iii) any modification or amendment of or supplement to Beneficiarythis Agreement;
(iv) any change in the existence, Pemex shall be entitled to assert structure or ownership of any claimPurchaser Party or Guarantor or any insolvency, set-offbankruptcy, defense reorganization or other right similar proceeding affecting any of PMI under the Maya Agreement in respect them or their assets; or
(v) any other act, omission to act, delay of any kind by any party hereto or any other Person, or any other circumstance whatsoever that might, but for the provisions of its this Section 11.13, constitute a legal or equitable discharge of the obligations of any Guarantor, as guarantor to the extent set forth hereunder.
(c) Subject Each of the Guarantors hereby waives any right, whether legal or equitable, statutory or non-statutory, to the provisions of Section 2 below, the obligations of Pemex under this Section 1 shall not be affected by the genuineness, validity, regularity require any Seller to proceed against or enforceability of take any of PMI's obligations under the Maya Agreement, action against or pursue any remedy with respect to any Purchaser Party or any amendment, waiver other Person or other modification thereof (except to the extent make presentment or demand for performance or give any notice of such amendment, waiver or modification), or substitution, release or exchange of collateral for or other guarantee of nonperformance before any of the Guaranteed Obligations (except to the extent of such substitution, release or exchange) without the consent of Pemex, and priority or preference to which party hereto may enforce its rights hereunder against any other obligations of PMI may be entitled over PMI's obligations under the Maya Agreement or, to the fullest extent permitted by applicable law, any other circumstance which might otherwise constitute a legal or equitable defense to or discharge of the obligations of a surety or Guarantor as guarantor, including, without limitation, any defense arising out of any laws of any jurisdiction which would either exempt, modify or delay the due or punctual payment and performance of the obligations of Pemex hereunder.
(d) Without limiting the generality The obligations of each of the foregoing and Guarantors as guarantors to the fullest extent permitted set forth hereunder shall remain in full force and effect until the Purchaser Obligations shall have been performed in full. If at any time any performance by lawany Person of any Purchaser Obligation is rescinded or must be otherwise restored or returned, it is agreedwhether upon the insolvency, subject bankruptcy or reorganization of any Purchaser Party or otherwise, each of the Guarantor’s obligations hereunder with respect to such Purchaser Obligation shall be reinstated at that time as though that Purchaser Obligation had become due and had not been performed.
(e) Upon performance by any Guarantor of any Purchaser Obligation, such Guarantor shall be subrogated to the provisions of Section 2 below, that the occurrence rights of any one or more Seller against such Purchaser Party with respect to that Purchaser Obligation.
(f) The obligations of the following shall not affect the liability of Pemex Guarantors under this Section 1: (i) 11.13 shall be limited to an aggregate amount that is equal to the extension of the time for or waiver of, at any time or from time to time, without notice to Pemex, PMI's performance of or compliance with any of largest amount that would not render its obligations under the Maya Agreement, (except that such extension this Section 11.13 subject to avoidance under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or waiver shall be given effect in determining the obligations of Pemex, hereunder), (ii) any assignment, transfer or other arrangement by which PMI transfers its right, under the Maya Agreement, (iii) any merger or consolidation of PMI or Pemex into or with any other Person, or (iv) and change in the ownership comparable provisions of any shares of capital stock of PMI or any Affiliate thereof. This Guarantee is an absolute, present and continuing guarantee and, except as provided in Section 2 hereof, is in no way conditional or contingent upon any attempt to collect from PMI any unpaid amounts due or otherwise to enforce performance by PMIapplicable state law.
Appears in 1 contract
