We use cookies on our site to analyze traffic, enhance your experience, and provide you with tailored content.

For more information visit our privacy policy.

Common use of Parent Company Guarantee Clause in Contracts

Parent Company Guarantee. (a) Except as provided in Section 7.7(c)(iii), until the date on which Completion is achieved pursuant to the terms of this Agreement, Parent Company hereby absolutely, unconditionally and irrevocably guarantees in favour of Silver Wheaton the prompt and complete observance and performance of all the terms, covenants, conditions and provisions to be observed or performed by the Supplier pursuant to this Agreement (collectively, the “Guaranteed Obligations”) and shall perform such terms, covenants, conditions and provisions upon the default or non-performance thereof by the Supplier; provided that Parent Company’s liability under this Section 8.2 shall not exceed the aggregate uncredited balance of the Deposit. The foregoing agreement of Parent Company is absolute, unconditional, present and continuing and is in no way conditional or contingent upon any event, circumstance, action or omission which might in any way discharge a guarantor or surety in whole or in part. (b) The obligations of Parent Company under this Section 8.2 are continuing, unconditional and absolute and, without limiting the generality of the foregoing, will not be released, discharged, limited or otherwise affected by (and Parent Company hereby consents to or waives, as applicable, to the fullest extent permitted by applicable law): (i) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination or release in respect of any of the Guaranteed Obligations; (ii) any modification or amendment of or supplement to the Guaranteed Obligations, including any increase or decrease in the amounts payable thereunder including any amendment to this Agreement (other than this Section 8.2) for which Parent Company’s consent was not obtained; (iii) any release, non-perfection or invalidity of the Security Agreements; (iv) any Insolvency Event affecting the Supplier or any other person or their property; (v) except as provided in Section 7.7(c)(iii), any change in the control of the Supplier or the Owner; (vi) the existence of any claim, set-off or other rights which Parent Company may have at any time against the Supplier, Silver Wheaton or any other person; (vii) any invalidity, illegality or unenforceability relating to or against the Supplier or any provision of applicable law or regulation purporting to prohibit the payment by the Supplier of any amount in respect of the Guaranteed Obligations; (viii) any limitation, postponement, prohibition, subordination or other restriction on the rights of Silver Wheaton to payment of the Guaranteed Obligations; (ix) any release, substitution or addition of any co-signer, endorser or other guarantor of the Guaranteed Obligations; (x) any defence arising by reason of any failure of Silver Wheaton to make any presentment, demand for performance, notice of non-performance, protest or any other notice, including notice of acceptance of this Agreement, partial payment or non-payment of any Guaranteed Obligations or the existence, creation or incurring of new or additional Guaranteed Obligations; (xi) any defence arising by reason of any failure of Silver Wheaton to proceed against the Supplier or any other person, to proceed against, apply or exhaust the Security Agreements, or to pursue any other remedy in the power of Silver Wheaton whatsoever; (xii) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation; (xiii) any defence arising by reason of any incapacity, lack of authority, or other defence of the Supplier or any other person, or by reason of any limitation, postponement, prohibition on Silver Wheaton’s right to payment of any Guaranteed Obligations, or by reason of the cessation from any cause whatsoever of the liability of the Supplier or any other person in respect of any Guaranteed Obligations, or by reason of any act or omission of Silver Wheaton or others which directly or indirectly results in the discharge or release of the Supplier or any other person or all or any part of the Guaranteed Obligations or the Security Agreements, or any guarantee therefor, whether by contract, operation of law or otherwise; (xiv) any defence arising by reason of any failure by Silver Wheaton to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Supplier or any other person under the Security Agreements, or by reason of any interest of Silver Wheaton in any property, whether as supplier thereof or the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by Silver Wheaton of any right to recourse or collateral; (xv) any defence arising by reason of the failure of Silver Wheaton to marshal any property; (xvi) any defence based upon any failure of Silver Wheaton to give to the Supplier or Parent Company notice of any sale or other disposition of any property securing any Guaranteed Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of Silver Wheaton to comply with any applicable law in enforcing any security interest in or lien upon any such property under the Security Agreements, including any failure by Silver Wheaton to dispose of any such property in a commercially reasonable manner; (xvii) any dealing whatsoever with the Supplier or any other person or the Security Agreements, whether negligently or not, or any failure to do so; (xviii) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Supplier or any other person, including any discharge of, or bar against collecting, any Guaranteed Obligations, in or as a result of any such proceeding; or (xix) any other act or omission to act or delay of any kind by the Supplier, Silver Wheaton, or any other person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which might, but for the provisions of this paragraph, constitute a legal or equitable discharge, limitation or reduction of the obligations of Parent Company hereunder (other than the payment or performance in full of all of the Guaranteed Obligations). (c) The provisions of this Section 8.2 apply (and the waivers set out herein will be effective) even if the effect of any action (or failure to take action) by Silver Wheaton is to destroy or diminish any subrogation rights of Parent Company or any rights of Parent Company to proceed against the Supplier or any other person for reimbursement or to recover any contribution from any other guarantor or any other right or remedy of Parent Company. (d) Silver Wheaton shall not be bound to exhaust its recourse against the Supplier or any other persons or to realize on the Security Agreements before being entitled to payment or performance from Parent Company under this Section 8.2 and Parent Company hereby renounces all benefits of discussion and division. (e) This Section 8.2 shall continue and apply to any ultimate unpaid or unperformed balance of the Guaranteed Obligations and shall be reinstated if at any time payment or performance of any of the Guaranteed Obligations is rescinded or must otherwise be returned or reversed by Silver Wheaton upon the occurrence of an Insolvency Event applicable to the Supplier or for any other reason whatsoever, all as though such payment or performance had not been made. (f) In the event that Silver Wheaton shall receive any payments or performance on account of the Guaranteed Obligations from Parent Company, the realization of the Security Agreements or otherwise, Parent Company shall have no right to make any claims for repayment or contribution or to exercise any rights of subrogation against any Hudbay PMPA Entity, and all such rights are hereby expressly waived, until the Guaranteed Obligations have been fully and completely paid, performed or otherwise satisfied. (g) In the event of an Insolvency Event applicable to the Supplier or in the event that the Supplier shall make a bulk sale of any of its assets within the bulk transfer provisions of any applicable legislation or any composition with creditors or scheme of arrangement, Silver Wheaton shall have the right to rank in priority to Parent Company for its claim in respect of the Guaranteed Obligations and to receive all dividends or other payments in respect thereof until the Guaranteed Obligations have been fully and completely paid, performed or otherwise satisfied, all without prejudice to its claim against Parent Company who shall continue to be liable for any remaining unpaid or unperformed balance of the Guaranteed Obligations.

Appears in 1 contract

Samples: Precious Metals Purchase Agreement (HudBay Minerals Inc.)

Parent Company Guarantee. (a) Except as provided in Section 7.7(c)(iii)14.1 In consideration of the entry by Kemira and JVCo into this agreement, until the date on which Completion is achieved pursuant to the terms of this Agreement, Parent Company hereby absolutely, Guarantor unconditionally and irrevocably guarantees in favour of Silver Wheaton to Kemira and JVCo the prompt due and complete punctual performance and observance and performance by Terra of all the termsits obligations, covenants, conditions commitments and provisions to be observed undertakings under or performed by the Supplier pursuant to this Agreement agreement (collectively, the “Guaranteed Obligations") and shall perform such termsagrees to indemnify Kemira and JVCo against all losses, covenantsliabilities, conditions costs (including without limitation legal costs), charges, expenses, actions, proceedings, claims and provisions upon the default demands which Kemira or non-performance thereof JVCo may suffer through or arising from any breach by the Supplier; provided that Parent Company’s liability Terra of its obligations under this Section 8.2 agreement. 14.2 The liability of the Guarantor under this clause 14 shall not exceed the aggregate uncredited balance liability of Terra and shall not be released or diminished by any variation of the Deposit. The foregoing agreement terms of Parent Company is absolutethe Guaranteed Obligations, unconditionalor any forbearance, present and continuing and is neglect or delay in no way conditional seeking performance of the Guaranteed Obligations or contingent upon any event, circumstance, action granting of time for such performance or omission which might in any way discharge other fact or circumstance other than a guarantor or surety in whole or in partspecific written waiver. (b) The obligations of Parent Company under this Section 8.2 are continuing, unconditional 14.3 If and absolute and, without limiting whenever Terra defaults for any reason in the generality of the foregoing, will not be released, discharged, limited or otherwise affected by (and Parent Company hereby consents to or waives, as applicable, to the fullest extent permitted by applicable law): (i) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination or release in respect performance of any of the Guaranteed Obligations; , the Guarantor shall forthwith upon demand unconditionally perform (iior procure performance of) any modification and satisfy (or amendment of or supplement to procure the Guaranteed Obligations, including any increase or decrease in the amounts payable thereunder including any amendment to this Agreement (other than this Section 8.2satisfaction of) for which Parent Company’s consent was not obtained; (iii) any release, non-perfection or invalidity of the Security Agreements; (iv) any Insolvency Event affecting the Supplier or any other person or their property; (v) except as provided in Section 7.7(c)(iii), any change in the control of the Supplier or the Owner; (vi) the existence of any claim, set-off or other rights which Parent Company may have at any time against the Supplier, Silver Wheaton or any other person; (vii) any invalidity, illegality or unenforceability relating to or against the Supplier or any provision of applicable law or regulation purporting to prohibit the payment by the Supplier of any amount in respect of the Guaranteed Obligations; (viii) any limitation, postponement, prohibition, subordination or other restriction on the rights of Silver Wheaton to payment of the Guaranteed Obligations; (ix) any release, substitution or addition of any co-signer, endorser or other guarantor of the Guaranteed Obligations; (x) any defence arising by reason of any failure of Silver Wheaton to make any presentment, demand for performance, notice of non-performance, protest or any other notice, including notice of acceptance of this Agreement, partial payment or non-payment of any Guaranteed Obligations or the existence, creation or incurring of new or additional Guaranteed Obligations; (xi) any defence arising by reason of any failure of Silver Wheaton to proceed against the Supplier or any other person, to proceed against, apply or exhaust the Security Agreements, or to pursue any other remedy in the power of Silver Wheaton whatsoever; (xii) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation; (xiii) any defence arising by reason of any incapacity, lack of authority, or other defence of the Supplier or any other person, or by reason of any limitation, postponement, prohibition on Silver Wheaton’s right to payment of any Guaranteed Obligations, or by reason of the cessation from any cause whatsoever of the liability of the Supplier or any other person in respect of any Guaranteed Obligations, or by reason of any act or omission of Silver Wheaton or others which directly or indirectly results in the discharge or release of the Supplier or any other person or all or any part of the Guaranteed Obligations or in relation to which such default has been made in accordance with this agreement so that Kemira and/or JVCo (as the Security Agreements, or any guarantee therefor, whether by contract, operation of law or otherwise; (xivcase may be) any defence arising by reason of any failure by Silver Wheaton to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of receives the Supplier or any other person under the Security Agreements, or by reason of any interest of Silver Wheaton in any property, whether same benefits as supplier thereof or the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by Silver Wheaton of any right to recourse or collateral; (xv) any defence arising by reason of the failure of Silver Wheaton to marshal any property; (xvi) any defence based upon any failure of Silver Wheaton to give to the Supplier or Parent Company notice of any sale or other disposition of any property securing any Guaranteed Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of Silver Wheaton to comply with any applicable law in enforcing any security interest in or lien upon any such property under the Security Agreements, including any failure by Silver Wheaton to dispose of any such property in a commercially reasonable manner; (xvii) any dealing whatsoever with the Supplier or any other person or the Security Agreements, whether negligently or not, or any failure to do so; (xviii) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Supplier or any other person, including any discharge of, or bar against collecting, any Guaranteed Obligations, in or as a result of any such proceeding; or (xix) any other act or omission to act or delay of any kind by the Supplier, Silver Wheaton, or any other person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which might, but for the provisions of this paragraph, constitute a legal or equitable discharge, limitation or reduction of the obligations of Parent Company hereunder (other than the payment or performance in full of all of it would have received if the Guaranteed Obligations)Obligation had been duly performed and satisfied by Terra. (c) The provisions of this Section 8.2 apply (14.4 This guarantee is a continuing guarantee and the waivers set out herein will be effective) even if the effect of any action (or failure to take action) by Silver Wheaton is to destroy or diminish any subrogation rights of Parent Company or any rights of Parent Company to proceed against the Supplier or any other person for reimbursement or to recover any contribution from any other guarantor or any other right or remedy of Parent Company. (d) Silver Wheaton shall not be bound to exhaust its recourse against the Supplier or any other persons or to realize on the Security Agreements before being entitled to payment or performance from Parent Company under this Section 8.2 and Parent Company hereby renounces remains in force until all benefits of discussion and division. (e) This Section 8.2 shall continue and apply to any ultimate unpaid or unperformed balance of the Guaranteed Obligations and shall be reinstated if at any time payment or performance of any of the Guaranteed Obligations is rescinded or must otherwise be returned or reversed by Silver Wheaton upon the occurrence of an Insolvency Event applicable to the Supplier or for any other reason whatsoever, all as though such payment or performance had not been made. (f) In the event that Silver Wheaton shall receive any payments or performance on account of the Guaranteed Obligations from Parent Company, the realization of the Security Agreements or otherwise, Parent Company shall have no right to make any claims for repayment or contribution or to exercise any rights of subrogation against any Hudbay PMPA Entity, and all such rights are hereby expressly waived, until the Guaranteed Obligations have been fully and completely paid, performed or otherwise satisfied. satisfied and is in addition to, without prejudice to and not in substitution for any rights or security which Kemira and/or JVCo (gas the case may be) In the event of an Insolvency Event applicable to the Supplier may now or in the event that future have or hold for the Supplier shall make a bulk sale of any of its assets within the bulk transfer provisions of any applicable legislation or any composition with creditors or scheme of arrangement, Silver Wheaton shall have the right to rank in priority to Parent Company for its claim in respect of the Guaranteed Obligations performance and to receive all dividends or other payments in respect thereof until the Guaranteed Obligations have been fully and completely paid, performed or otherwise satisfied, all without prejudice to its claim against Parent Company who shall continue to be liable for any remaining unpaid or unperformed balance observance of the Guaranteed Obligations. 14.5 Any amounts payable under this guarantee shall be paid in full on demand without any deduction or withholding whatsoever (whether in respect of set-off, counterclaim, duties, charges, taxes or otherwise).

Appears in 1 contract

Samples: Joint Venture Contribution Agreement (Terra Industries Inc)

Parent Company Guarantee. (a) Except as provided in Section 7.7(c)(iii), until the date on which Completion is achieved pursuant to the terms of this Agreement, Parent Company hereby absolutely, unconditionally and irrevocably guarantees in favour of Silver Wheaton Purchaser the prompt payment and the prompt and complete observance and performance of all the terms, covenants, conditions and provisions to be observed or performed by the Supplier Project Owner pursuant to this Agreement (collectively, the “Guaranteed Obligations”) and shall pay all amounts payable hereunder to Purchaser and perform such terms, covenants, conditions and provisions upon the default or non-performance thereof by the Supplier; provided that Parent Company’s liability under this Section 8.2 shall not exceed the aggregate uncredited balance of the DepositProject Owner. The foregoing agreement of Parent Company is absolute, unconditional, present and continuing and is in no way conditional or contingent upon any event, circumstance, action or omission which might in any way discharge a guarantor or surety in whole or in part. (b) If any or all of the Guaranteed Obligations are not duly paid by Project Owner and are not recoverable under Section 9.1(a) for any reason whatsoever, Parent Company will, as a separate and distinct obligation, indemnify and save harmless Purchaser from and against all losses resulting from the failure of Project Owner to pay such Guaranteed Obligations in accordance with the terms hereof. (c) If any or all of the Guaranteed Obligations are not duly paid by Project Owner and are not recoverable under Section 9.1(a) or Purchaser is not indemnified under Section 9.1(b), in each case, for any reason whatsoever, or from the enforcement of this guarantee and such Guaranteed Obligations will, as a separate and distinct obligation, be recoverable from Parent Company as primary obligor. (d) The obligations of Parent Company under this Section 8.2 9.1 are continuing, unconditional and absolute and, without limiting the generality of the foregoing, will not be released, discharged, limited or otherwise affected by (and Parent Company hereby consents to or waives, as applicable, to the fullest extent permitted by applicable lawApplicable Law): (i) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination or release in respect of any of the Guaranteed Obligations; (ii) any modification or amendment of or supplement to the Guaranteed Obligations, including any increase or decrease in the amounts payable thereunder including any amendment to this Agreement (other than this Section 8.29.1) for which Parent Company’s consent was not obtained; (iii) any release, non-perfection or invalidity of the Security Agreementsany direct or indirect security for any Guaranteed Obligations; (iv) any Insolvency Event affecting the Supplier Project Owner or any other person or their property; (v) except as provided in Section 7.7(c)(iii), any change in the ownership of, or control of the Supplier or the of, Project Owner; (vi) the existence of any claim, set-off or other rights which Parent Company may have at any time against the SupplierProject Owner, Silver Wheaton Purchaser or any other person; (vii) any invalidity, illegality or unenforceability relating to or against the Supplier Project Owner or any provision of applicable law Applicable Law or regulation purporting to prohibit the payment by the Supplier Project Owner of any amount in respect of the Guaranteed Obligations; (viii) any limitation, postponement, prohibition, subordination or other restriction on the rights of Silver Wheaton Purchaser to payment of the Guaranteed Obligations; (ix) any release, substitution or addition of any co-signer, endorser or other guarantor of the Guaranteed Obligations; (x) any defence arising by reason of any failure of Silver Wheaton Purchaser to make any presentment, demand for performance, notice of non-performance, protest or any other notice, including notice of acceptance of this Agreement, partial payment or non-payment of any Guaranteed Obligations or the existence, creation or incurring of new or additional Guaranteed Obligations; (xi) any defence arising by reason of any failure of Silver Wheaton Purchaser to proceed against the Supplier Project Owner or any other person, to proceed against, apply or exhaust any security held from Project Owner or any other person for the Security AgreementsGuaranteed Obligations, to proceed against, apply or exhaust any security held from Parent Company or any other person for the Guaranteed Obligations or to pursue any other remedy in the power of Silver Wheaton Purchaser whatsoever; (xii) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation; (xiii) any defence arising by reason of any incapacity, lack of authority, or other defence of the Supplier Project Owner or any other person, or by reason of any limitation, postponement, prohibition on Silver WheatonPurchaser’s right to payment of any Guaranteed Obligations, or by reason of the cessation from any cause whatsoever of the liability of the Supplier Project Owner or any other person in respect of any Guaranteed Obligations, or by reason of any act or omission of Silver Wheaton Purchaser or others which directly or indirectly results in the discharge or release of the Supplier Project Owner or any other person or all or any part of the Guaranteed Obligations or the Security Agreements, any security or any guarantee therefor, whether by contract, operation of law or otherwise; (xiv) any defence arising by reason of any failure by Silver Wheaton Purchaser to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance Encumbrance upon any property of the Supplier Project Owner or any other person under the Security Agreementsperson, or by reason of any interest of Silver Wheaton Purchaser in any property, whether as supplier thereof or the holder of a security interest therein or lien or encumbrance an Encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by Silver Wheaton Purchaser of any right to recourse or collateral; (xv) any defence arising by reason of the failure of Silver Wheaton Purchaser to marshal any property; (xvi) any defence based upon any failure of Silver Wheaton Purchaser to give to the Supplier Project Owner or Parent Company notice of any sale or other disposition of any property securing any Guaranteed Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of Silver Wheaton Purchaser to comply with any applicable law Applicable Law in enforcing any security interest in or lien Ecumbrance upon any such property under the Security Agreementsproperty, including any failure by Silver Wheaton Purchaser to dispose of any such property in a commercially reasonable manner; (xvii) any dealing whatsoever with the Supplier Project Owner or any other person or the Security Agreementsany security, whether negligently or not, or any failure to do so; (xviii) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Supplier Project Owner or any other person, including any discharge of, or bar against collecting, any Guaranteed Obligations, in or as a result of any such proceeding; or (xix) any other act or omission to act or delay of any kind by the SupplierProject Owner, Silver WheatonPurchaser, or any other person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which might, but for the provisions of this paragraph, constitute a legal or equitable discharge, limitation or reduction of the obligations of Parent Company hereunder (other than the payment or performance in full of all of the Guaranteed Obligations). (ce) The provisions of this Section 8.2 9.1 apply (and the waivers set out herein will be effective) even if the effect of any action (or failure to take action) by Silver Wheaton Purchaser is to destroy or diminish any subrogation rights of Parent Company or any rights of Parent Company to proceed against the Supplier Project Owner or any other person for reimbursement or to recover any contribution from any other guarantor or any other right or remedy of Parent Company. (df) Silver Wheaton Purchaser shall not be bound to exhaust its recourse against the Supplier Project Owner or any other persons or to realize on any security it may hold in respect of the Security Agreements Guaranteed Obligations before being entitled to payment or performance from Parent Company under this Section 8.2 9.1 and Parent Company hereby renounces all benefits of discussion and division. (eg) This Subject to Section 8.2 9.1(m), this Section 9.1 shall continue and apply to any ultimate unpaid or unperformed balance of the Guaranteed Obligations and shall be reinstated if at any time payment or performance of any of the Guaranteed Obligations is rescinded or must otherwise be returned or reversed by Silver Wheaton Purchaser upon the occurrence of an Insolvency Event applicable to the Supplier Project Owner or for any other reason whatsoever, all as though such payment or performance had not been made. (fh) In the event that Silver Wheaton Purchaser shall receive any payments or performance on account of the Guaranteed Obligations from Parent Company, the realization of the Security Agreements any security or otherwise, Parent Company shall have no right to make any claims for repayment or contribution or to exercise any rights of subrogation against any Hudbay PMPA Project Owner Entity, and all such rights are hereby expressly waived, until the Guaranteed Obligations have been fully and completely paid, performed or otherwise satisfied. (gi) In the event of an Insolvency Event applicable to the Supplier Project Owner or in the event that the Supplier Project Owner shall make a bulk sale of any of its assets within the bulk transfer provisions of any applicable legislation or any composition with creditors or scheme of arrangement, Silver Wheaton Purchaser shall have the right to rank in priority to Parent Company for its claim in respect of the Guaranteed Obligations and to receive all dividends or other payments in respect thereof until the Guaranteed Obligations have been fully and completely paid, performed or otherwise satisfied, all without prejudice to its claim against Parent Company who shall continue to be liable for any remaining unpaid or unperformed balance of the Guaranteed Obligations. (j) Without prejudice to or in any way limiting or lessening Parent Company’s liability and without obtaining the consent of or giving notice to Parent Company, Purchaser may compromise or adjust any part of the Guaranteed Obligations, grant time, renewals, extensions, indulgences, releases and discharges to and accept compositions from or otherwise deal with Project Owner and others, as Purchaser may see fit, and Purchaser may take, abstain from taking or perfecting, vary, exchange, renew, compromise, discharge, give up, realize on or otherwise deal with securities and guarantees in such manner as Purchaser may see fit, including foreclose on any Stream Collateral encumbered by the Purchaser Security or other Collateral held by it by one or more judicial or non-judicial sales or accept an assignment of any such Collateral encumbered by the Purchaser Security or other collateral in lieu of foreclosure at its election and without notice to or demand upon Parent Company; and the liability of Parent Company hereunder shall be absolute, unconditional and irrevocable irrespective of any other circumstance which would constitute a defence available to or a discharge of the liabilities of a guarantor. Purchaser may, following the occurrence of an Event of Default which is continuing, apply all moneys received from Project Owner or Parent Company or others or from securities or guarantees upon such parts of the Guaranteed Obligations, as Purchaser may see fit and change any such application in whole or in part from time to time. (k) Until payment in full to Purchaser of the Guaranteed Obligations, effective on the occurrence of an Event of Default which is continuing, Parent Company hereby irrevocably waives any claim or other rights which it may now have or may hereafter acquire against Project Owner that arise from the existence, payment, performance or enforcement of Parent Company’s obligations hereunder, including any right of subrogation, reimbursement, exoneration or indemnification, any right to participate in any claim or remedy of Purchaser against Project Owner which Purchaser now has or hereafter acquires, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including the right to take or receive from Project Owner, directly or indirectly, property, whether by set-off or in any manner, payment or security on account of such claim or other rights. If any amount shall be paid to Parent Company in violation of the preceding sentence and the Guaranteed Obligations shall not have been paid in cash in full, such amount shall be deemed to have been paid to Parent Company for the benefit of, and held in trust for, Purchaser, and shall forthwith be paid to Purchaser to be credited and applied against the Guaranteed Obligations, whether matured or unmatured. Parent Company acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this guarantee and that the waiver set forth in this paragraph is knowingly made in contemplation of such benefits. (l) Parent Company hereby waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of non-performance, default, acceleration, protest or dishonor and any other notice with respect to the Guaranteed Obligations. (m) Provided that there is no outstanding claim or demand made under the guarantee contained in this Section 9.1, the guarantee contained in this Section 9.1 shall terminate automatically upon the later of (x) the expiry of the 60 day period referenced in Section 4.3(b) following the delivery of a Completion Certificate, unless the Purchaser delivers a written notice to Project Owner or Parent Company pursuant to Section 4.3(b) that it has reasonable grounds for believing that Completion has not been achieved; and (y) if the Purchaser delivers a written notice to Project Owner or Parent Company pursuant to Section 4.3(b) that it has reasonable grounds for believing that Completion has not been achieved, the full and final resolution pursuant to Section 11.7 of the Dispute arising as a result of the delivery of such Completion Certificate.

Appears in 1 contract

Samples: Asset Purchase Agreement (New Gold Inc. /FI)

Parent Company Guarantee. (a) Except as provided in Section 7.7(c)(iii), until the date on which Completion is achieved pursuant to the terms of this Agreement, Parent Company hereby absolutely, unconditionally and irrevocably guarantees in favour of Silver Wheaton the prompt and complete observance and performance of all the terms, covenants, conditions and provisions to be observed or performed by the Supplier pursuant to this Agreement (collectively, the “Guaranteed Obligations”) and shall perform such terms, covenants, conditions and provisions upon the default or non-performance thereof by the Supplier; provided that Parent Company’s liability under this Section 8.2 shall not exceed the aggregate uncredited balance of the Deposit. The foregoing agreement of Parent Company is absolute, unconditional, present and continuing and is in no way conditional or contingent upon any event, circumstance, action or omission which might in any way discharge a guarantor or surety in whole or in part. (b) The obligations of Parent Company under this Section 8.2 are continuing, unconditional and absolute and, without limiting the generality of the foregoing, will not be released, discharged, limited or otherwise affected by (and Parent Company hereby consents to or waives, as applicable, to the fullest extent permitted by applicable law): (i) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination or release in respect of any of the Guaranteed Obligations; (ii) any modification or amendment of or supplement to the Guaranteed Obligations, including any increase or decrease in the amounts payable thereunder including any amendment to this Agreement (other than this Section 8.2) for which Parent Company’s consent was not obtained; (iii) any release, non-perfection or invalidity of the Supplier Security Agreements; (iv) any Insolvency Event affecting the Supplier or any other person or their property; (v) except as provided in Section 7.7(c)(iii), any change in the control of the Supplier or the Owner; (vi) the existence of any claim, set-off or other rights which Parent Company may have at any time against the Supplier, Silver Wheaton or any other person; (vii) any invalidity, illegality or unenforceability relating to or against the Supplier or any provision of applicable law or regulation purporting to prohibit the payment by the Supplier of any amount in respect of the Guaranteed Obligations; (viii) any limitation, postponement, prohibition, subordination or other restriction on the rights of Silver Wheaton to payment of the Guaranteed Obligations; (ix) any release, substitution or addition of any co-signer, endorser or other guarantor of the Guaranteed Obligations; (x) any defence arising by reason of any failure of Silver Wheaton to make any presentment, demand for performance, notice of non-performance, protest or any other notice, including notice of acceptance of this Agreement, partial payment or non-payment of any Guaranteed Obligations or the existence, creation or incurring of new or additional Guaranteed Obligations; (xi) any defence arising by reason of any failure of Silver Wheaton to proceed against the Supplier or any other person, to proceed against, apply or exhaust the Supplier Security Agreements, or to pursue any other remedy in the power of Silver Wheaton whatsoever; (xii) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation; (xiii) any defence arising by reason of any incapacity, lack of authority, or other defence of the Supplier or any other person, or by reason of any limitation, postponement, prohibition on Silver Wheaton’s right to payment of any Guaranteed Obligations, or by reason of the cessation from any cause whatsoever of the liability of the Supplier or any other person in respect of any Guaranteed Obligations, or by reason of any act or omission of Silver Wheaton or others which directly or indirectly results in the discharge or release of the Supplier or any other person or all or any part of the Guaranteed Obligations or the Supplier Security Agreements, Agreements or any guarantee therefor, whether by contract, operation of law or otherwise; (xiv) any defence arising by reason of any failure by Silver Wheaton to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Supplier or any other person under the Supplier Security Agreements, or by reason of any interest of Silver Wheaton in any property, whether as supplier thereof or the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by Silver Wheaton of any right to recourse or collateral; (xv) any defence arising by reason of the failure of Silver Wheaton to marshal any property; (xvi) any defence based upon any failure of Silver Wheaton to give to the Supplier or Parent Company notice of any sale or other disposition of any property securing any Guaranteed Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of Silver Wheaton to comply with any applicable law in enforcing any security interest in or lien upon any such property under the Supplier Security Agreements, including any failure by Silver Wheaton to dispose of any such property in a commercially reasonable manner; (xvii) any dealing whatsoever with the Supplier or any other person or the Supplier Security Agreements, whether negligently or not, or any failure to do so; (xviii) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Supplier or any other person, including any discharge of, or bar against collecting, any Guaranteed Obligations, in or as a result of any such proceeding; or (xix) any other act or omission to act or delay of any kind by the Supplier, Silver Wheaton, or any other person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which might, but for the provisions of this paragraph, constitute a legal or equitable discharge, limitation or reduction of the obligations of Parent Company hereunder (other than the payment or performance in full of all of the Guaranteed Obligations). (c) The provisions of this Section 8.2 apply (and the waivers set out herein will be effective) even if the effect of any action (or failure to take action) by Silver Wheaton is to destroy or diminish any subrogation rights of Parent Company or any rights of Parent Company to proceed against the Supplier or any other person for reimbursement or to recover any contribution from any other guarantor or any other right or remedy of Parent Company. (d) Silver Wheaton shall not be bound to exhaust its recourse against the Supplier or any other persons or to realize on the Supplier Security Agreements before being entitled to payment or performance from Parent Company under this Section 8.2 and Parent Company hereby renounces all benefits of discussion and division. (e) This Section 8.2 shall continue and apply to any ultimate unpaid or unperformed balance of the Guaranteed Obligations and shall be reinstated if at any time payment or performance of any of the Guaranteed Obligations is rescinded or must otherwise be returned or reversed by Silver Wheaton upon the occurrence of an Insolvency Event applicable to the Supplier or for any other reason whatsoever, all as though such payment or performance had not been made. (f) In the event that Silver Wheaton shall receive any payments or performance on account of the Guaranteed Obligations from Parent Company, the realization of the Supplier Security Agreements or otherwise, Parent Company shall have no right to make any claims for repayment or contribution or to exercise any rights of subrogation against any Hudbay PMPA SPA Entity, and all such rights are hereby expressly waived, until the Guaranteed Obligations have been fully and completely paid, performed or otherwise satisfied. (g) In the event of an Insolvency Event applicable to the Supplier or in the event that the Supplier shall make a bulk sale of any of its assets within the bulk transfer provisions of any applicable legislation or any composition with creditors or scheme of arrangement, Silver Wheaton shall have the right to rank in priority to Parent Company for its claim in respect of the Guaranteed Obligations and to receive all dividends or other payments in respect thereof until the Guaranteed Obligations have been fully and completely paid, performed or otherwise satisfied, all without prejudice to its claim against Parent Company who shall continue to be liable for any remaining unpaid or unperformed balance of the Guaranteed Obligations.

Appears in 1 contract

Samples: Silver Purchase Agreement (HudBay Minerals Inc.)

Parent Company Guarantee. 28.1 In addition to the Bank Guarantee, the Lessee shall, on the Effective Date, provide to the Lessor a Parent Company Guarantee. 28.2 If an Event of Default occurs in relation to the company (the “Parent Company”) providing a Parent Company Guarantee, then the Lessee shall on demand procure the issue to the Lessor of a replacement guarantee in the same form as the Parent Company Guarantee (which guarantee shall be regarded as a Parent Company Guarantee for the purposes of this Agreement) or such other form of security acceptable to the Lessor. For these purposes, an event of Default will occur in relation to a Parent Company if: (a) Except as provided in Section 7.7(c)(iii), until the date on which Completion is achieved pursuant to the terms of this Agreement, Parent Company hereby absolutely, unconditionally and irrevocably guarantees in favour suspends or ceases to carry on (or threatens to suspend or cease to carry on) all or a material part of Silver Wheaton the prompt and complete observance and performance of all the terms, covenants, conditions and provisions to be observed or performed by the Supplier pursuant to this Agreement (collectively, the “Guaranteed Obligations”) and shall perform such terms, covenants, conditions and provisions upon the default or non-performance thereof by the Supplierits business; provided that Parent Company’s liability under this Section 8.2 shall not exceed the aggregate uncredited balance of the Deposit. The foregoing agreement of Parent Company is absolute, unconditional, present and continuing and is in no way conditional or contingent upon any event, circumstance, action or omission which might in any way discharge a guarantor or surety in whole or in part.or (b) The obligations of the Parent Company under this Section 8.2 are continuingstops or suspends payment of any of its debts or is unable to, unconditional and absolute andor admits its inability to, without limiting pay its debts as they fall due; or (c) the generality Parent Company commences negotiations, or enters into any composition, compromise, assignment or arrangement, with one or more of its creditors with a view to rescheduling any of its Indebtedness (because of actual or anticipated financial difficulties); or (d) a moratorium is declared in respect of any Indebtedness of the foregoingParent Company; or (e) any action, will not be releasedproceedings, discharged, limited procedure or otherwise affected by (and Parent Company hereby consents to or waives, as applicable, to the fullest extent permitted by applicable law):step is taken in relation to: (i) any extensionthe suspension of payments, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination or release in respect a moratorium of any Indebtedness, winding up, dissolution, administration or reorganisation (using a voluntary arrangement, scheme of arrangement or otherwise) of the Guaranteed Obligations;Parent Company; or (ii) the composition, compromise, assignment or arrangement with any modification or amendment creditor of or supplement to the Guaranteed Obligations, including any increase or decrease in the amounts payable thereunder including any amendment to this Agreement (other than this Section 8.2) for which Parent Company’s consent was not obtained;; or (iii) any releasethe appointment of a liquidator, non-perfection or invalidity of the Security Agreements; (iv) any Insolvency Event affecting the Supplier or any other person or their property; (v) except as provided in Section 7.7(c)(iii)receiver, any change in the control of the Supplier or the Owner; (vi) the existence of any claimadministrative receiver, set-off administrator, compulsory manager or other rights which Parent Company may have at any time against the Supplier, Silver Wheaton or any other person; (vii) any invalidity, illegality or unenforceability relating to or against the Supplier or any provision of applicable law or regulation purporting to prohibit the payment by the Supplier of any amount similar officer in respect of the Guaranteed Obligations; (viii) any limitation, postponement, prohibition, subordination or other restriction on the rights of Silver Wheaton to payment of the Guaranteed Obligations; (ix) any release, substitution or addition of any co-signer, endorser or other guarantor of the Guaranteed Obligations; (x) any defence arising by reason of any failure of Silver Wheaton to make any presentment, demand for performance, notice of non-performance, protest Parent Company or any other notice, including notice of acceptance of this Agreement, partial payment or non-payment of any Guaranteed Obligations or the existence, creation or incurring of new or additional Guaranteed Obligations; (xi) any defence arising by reason of any failure of Silver Wheaton to proceed against the Supplier or any other person, to proceed against, apply or exhaust the Security Agreements, or to pursue any other remedy in the power of Silver Wheaton whatsoever; (xii) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation; (xiii) any defence arising by reason of any incapacity, lack of authority, or other defence of the Supplier or any other person, or by reason of any limitation, postponement, prohibition on Silver Wheaton’s right to payment of any Guaranteed Obligations, or by reason of the cessation from any cause whatsoever of the liability of the Supplier or any other person in respect of any Guaranteed Obligations, or by reason of any act or omission of Silver Wheaton or others which directly or indirectly results in the discharge or release of the Supplier or any other person or all or any part of the Guaranteed Obligations or the Security Agreements, or any guarantee therefor, whether by contract, operation of law or otherwise; (xiv) any defence arising by reason of any failure by Silver Wheaton to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Supplier or any other person under the Security Agreements, or by reason of any interest of Silver Wheaton in any property, whether as supplier thereof or the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by Silver Wheaton of any right to recourse or collateral; (xv) any defence arising by reason of the failure of Silver Wheaton to marshal any property; (xvi) any defence based upon any failure of Silver Wheaton to give to the Supplier or Parent Company notice of any sale or other disposition of any property securing any Guaranteed Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of Silver Wheaton to comply with any applicable law in enforcing any security interest in or lien upon any such property under the Security Agreements, including any failure by Silver Wheaton to dispose of any such property in a commercially reasonable manner; (xvii) any dealing whatsoever with the Supplier or any other person or the Security Agreements, whether negligently or not, or any failure to do so; (xviii) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Supplier or any other person, including any discharge of, or bar against collecting, any Guaranteed Obligations, in or as a result of any such proceedingits assets; or (xixf) any other act or omission to act or delay of any kind by the Supplier, Silver Wheaton, or any other person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which might, but for the provisions of this paragraph, constitute a legal or equitable discharge, limitation or reduction value of the obligations of Parent Company hereunder 's assets is less than its liabilities (other than the payment or performance in full of all of the Guaranteed Obligationstaking into account contingent and prospective liabilities). (c) The provisions of this Section 8.2 apply (and the waivers set out herein will be effective) even if the effect of any action (or failure to take action) by Silver Wheaton is to destroy or diminish any subrogation rights of Parent Company or any rights of Parent Company to proceed against the Supplier or any other person for reimbursement or to recover any contribution from any other guarantor or any other right or remedy of Parent Company. (d) Silver Wheaton shall not be bound to exhaust its recourse against the Supplier or any other persons or to realize on the Security Agreements before being entitled to payment or performance from Parent Company under this Section 8.2 and Parent Company hereby renounces all benefits of discussion and division. (e) This Section 8.2 shall continue and apply to any ultimate unpaid or unperformed balance of the Guaranteed Obligations and shall be reinstated if at any time payment or performance of any of the Guaranteed Obligations is rescinded or must otherwise be returned or reversed by Silver Wheaton upon the occurrence of an Insolvency Event applicable to the Supplier or for any other reason whatsoever, all as though such payment or performance had not been made. (f) In the event that Silver Wheaton shall receive any payments or performance on account of the Guaranteed Obligations from Parent Company, the realization of the Security Agreements or otherwise, Parent Company shall have no right to make any claims for repayment or contribution or to exercise any rights of subrogation against any Hudbay PMPA Entity, and all such rights are hereby expressly waived, until the Guaranteed Obligations have been fully and completely paid, performed or otherwise satisfied.; or (g) In the event of an Insolvency Event applicable to the Supplier or there is (in the event that reasonable opinion of the Supplier shall make Lessor) a bulk sale serious deterioration in the financial standing of any of its assets within the bulk transfer provisions of any applicable legislation or any composition with creditors or scheme of arrangement, Silver Wheaton shall have the right to rank in priority to Parent Company for its claim in respect that may adversely affect the ability of the Guaranteed Obligations and to receive all dividends or other payments in respect thereof until the Guaranteed Obligations have been fully and completely paid, performed or otherwise satisfied, all without prejudice to its claim against that Parent Company who shall continue to be liable for any remaining unpaid or unperformed balance of perform its obligations under the Guaranteed ObligationsParent Company Guarantee.

Appears in 1 contract

Samples: Lease Agreement