Seller’s Guarantee. 14.1 The Seller’s Guarantor unconditionally and irrevocably: (a) guarantees to the Buyer the payment when due of all amounts payable by the Seller under or pursuant to this Agreement; (b) undertakes to procure that the Seller will perform when due all its obligations under or pursuant to this Agreement; (c) agrees that if and each time that the Seller fails to make any payment when it is due under or pursuant to this Agreement, the Seller’s Guarantor shall on demand (without requiring the Buyer or any Group Company first to take steps against the Seller or any other person) pay that amount to the Buyer as if it were the principal obligor in respect of that amount; and (d) agrees as if it were the principal obligor to indemnify the Buyer against all losses and damages sustained by the Buyer or any Group Company flowing from any non-payment or default of any kind by the Seller under or pursuant to this Agreement. 14.2 The Seller’s Guarantor’s obligations under this clause will not be affected by: (a) any time or indulgence granted to, or composition with, the Seller or any other person; (b) any intermediate payment or settlement of account or by any change in the constitution or control of, or the insolvency of, or bankruptcy, winding-up or analogous proceedings relating to the Seller; (c) the taking, variation, renewal or release of, or neglect to perfect or enforce this agreement, or any right, guarantee, remedy or security from or against the Seller or any other person; (d) any variation or change to the terms of this agreement; or (e) any unenforceability or invalidity of any obligation of the Seller, so that this Agreement shall be construed as if there were no such unenforceability or invalidity; provided, however, neither the Buyer nor any member of the Buyer’s Group shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this Agreement. 14.3 Until all amounts which may be or become payable under this agreement have been irrevocably paid in full, the Seller’s Guarantor shall not as a result of this agreement or any payment or performance under this agreement be subrogated to any right or security of the Buyer or claim or prove in competition with the Buyer or any Group Company against the Seller or any other person or claim any right of contribution, set-off or indemnity. 14.4 The Seller’s Guarantor will not take or hold any security from the Seller in respect of this Agreement and any such security which is held in breach of this provision will be held by the Seller’s Guarantor in trust for the Buyer. 14.5 The provisions of this clause may with the prior written consent of the Buyer and, subject to paragraph (b) below, be enforced by any Group Company against the Seller’s Guarantor under the Contracts (Rights of Third Parties) Xxx 0000. (a) No Group Company shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this agreement. (b) The provisions of this clause may be varied or terminated by agreement between the Seller and the Buyer (and the Buyer may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this clause) without the consent of any Group Company. 14.6 The Seller’s Guarantor must reimburse the Buyer and each Group Company for all legal and other costs (including VAT to the extent irrecoverable) incurred by the Buyer or that Group Company in connection with the enforcement of the Seller’s Guarantor’s obligations under this Agreement. 14.7 The Seller’s Guarantor warrants to the Buyer that: (a) it has the power to execute and deliver this Agreement and to perform its obligations under it and has taken all action necessary to authorise such execution and delivery and the performance of such obligations; (b) this Agreement constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms; (c) the execution and delivery by the Seller’s Guarantor of this Agreement and the performance of its obligations under it do not and will not violate or conflict with or constitute a default under any law, rule or regulation applicable to it, any provisions of its constitutional documents, any order or judgment of any court or other agency or government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; and (d) all authorisations from, and all notices or filings with, any governmental or other authority that are necessary to enable the Seller’s Guarantor to execute, deliver and perform its obligations under this Agreement have been obtained or made (as the case may be) and are in full force and effect and all conditions of each such authorisation have been complied with; (e) no order has been made and no resolution has been proposed or passed for the winding up of or for a provisional liquidator to be appointed in respect of the Seller’s Guarantor and no petition has been presented for the purpose of winding up the Seller’s Guarantor; (f) no administration order has been made in respect of the Seller’s Guarantor and no petition or other application to the court for such an order has been presented or made and no administrator has been appointed (or notice of intention so to appoint filed in court) in respect of the Seller’s Guarantor; (g) no receiver (which expression shall include an administrative receiver) has been appointed in respect of the Seller’s Guarantor or in respect of all or any material part of the Seller’s Guarantor’s assets; (h) no voluntary arrangement has been proposed under section 1 of the Insolvency Xxx 0000 in respect of the Seller’s Guarantor; (i) no distress, execution or other process has been levied or threatened in respect of any of the Seller’s Guarantor’s assets; (j) No event analogous to any of the circumstances mentioned in any of the foregoing sub-paragraphs 14.7(e) to 14.7(i) has occurred in relation to the Seller’s Guarantor outside England.
Appears in 2 contracts
Samples: Agreement for the Sale and Purchase of Shares (Dollar Financial Corp), Agreement for the Sale and Purchase of Shares (Dollar Financial Corp)
Seller’s Guarantee. 14.1 11.1.1 The Seller’s Guarantor Sellers unconditionally and irrevocably:
(a) guarantees irrevocably guarantee to the Buyer Purchasers and PLL the payment when due and punctual performance and observance of all amounts payable by the Seller their obligations, commitments, undertakings, warranties and indemnities under or pursuant to this Agreement;Agreement or any Local Transfer Documents and Procedures ("Sellers' Guaranteed Obligations") and agree to indemnify the Purchasers and/or PLL against all Losses which the Purchasers may suffer through or arising from any breach by any of the Sellers of the Sellers' Guaranteed Obligations.
11.1.2 If and whenever any of the Sellers defaults for any reason whatsoever in the performance of any of the Sellers' Guaranteed Obligations, the Sellers shall forthwith upon demand unconditionally perform (or procure performance of) and satisfy (or procure the satisfaction of) the Sellers' Guaranteed Obligations in regard to which such default has been made in the manner prescribed by this Agreement and so that the same benefits shall be conferred on the Purchasers and/or on PLL as they would have received if the Sellers' Guaranteed Obligations had been duly performed and satisfied by the Sellers.
11.1.3 The Sellers, subject to the terms and limitations contained in Clause 8.9, further unconditionally and irrevocably agree to indemnify the Purchasers and/or PLL against all Losses which the Purchasers may suffer through or arising from:
(bi) undertakes the Sellers and/or PLL having breached prior to procure that Closing, To The Knowledge of Sellers, any applicable law, including without being limited to, any regulatory requirements to conduct their business, to operate as an insurance undertaking and/or to sell their insurance products in the Seller will perform when due all its obligations under or pursuant to this Agreement;relevant jurisdictions, and the professional secrecy rules set out in article 111-1 of the Luxembourg law of 6 December 1991 on the insurance sector, such as amended; and
(cii) agrees the outstanding options granted to some of the Employees of PLL.
11.1.4 This guarantee is to be a continuing guarantee and accordingly is to remain in force until all Sellers' Guaranteed Obligations shall have been performed or satisfied. This guarantee is in addition to and without prejudice to and not in substitution for any rights or security, which the Purchaser may now or hereafter have or hold for the performance and observance of the Sellers' Guaranteed Obligations.
11.1.5 As a separate and independent stipulation the Sellers agree that if and each time that any of the Seller fails to make Sellers' Guaranteed Obligations (including, without limitation, any payment when it is due under moneys payable) which may not be enforceable against or pursuant to this Agreementrecoverable from any of the other Sellers by reason of any legal limitation, disability or incapacity on or of any of the Seller’s Guarantor shall on demand (without requiring the Buyer or any Group Company first to take steps against the Seller Sellers or any other personfact or circumstances (other than any limitation imposed by this Agreement or Local Transfer Documents and Procedures) pay that amount to shall nevertheless be enforceable against and recoverable from the Buyer Sellers as if it though the same had been incurred by the Sellers and the Sellers were the sole or principal obligor in respect of that amount; and
(d) agrees as if it were the principal obligor to indemnify the Buyer against all losses thereof and damages sustained shall be performed or paid by the Buyer or any Group Company flowing from any non-payment or default of any kind by the Seller under or pursuant to this AgreementSellers on demand.
14.2 The Seller’s Guarantor’s obligations under this clause will not be affected by:
(a) any time or indulgence granted to, or composition with, the Seller or any other person;
(b) any intermediate payment or settlement of account or by any change in the constitution or control of, or the insolvency of, or bankruptcy, winding-up or analogous proceedings relating to the Seller;
(c) the taking, variation, renewal or release of, or neglect to perfect or enforce this agreement, or any right, guarantee, remedy or security from or against the Seller or any other person;
(d) any variation or change to the terms of this agreement; or
(e) any unenforceability or invalidity of any obligation of the Seller, so that this Agreement shall be construed as if there were no such unenforceability or invalidity; provided, however, neither the Buyer nor any member of the Buyer’s Group shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this Agreement.
14.3 Until all amounts which may be or become payable under this agreement have been irrevocably paid in full, the Seller’s Guarantor shall not as a result of this agreement or any payment or performance under this agreement be subrogated to any right or security of the Buyer or claim or prove in competition with the Buyer or any Group Company against the Seller or any other person or claim any right of contribution, set-off or indemnity.
14.4 The Seller’s Guarantor will not take or hold any security from the Seller in respect of this Agreement and any such security which is held in breach of this provision will be held by the Seller’s Guarantor in trust for the Buyer.
14.5 The provisions of this clause may with the prior written consent of the Buyer and, subject to paragraph (b) below, be enforced by any Group Company against the Seller’s Guarantor under the Contracts (Rights of Third Parties) Xxx 0000.
(a) No Group Company shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this agreement.
(b) The provisions of this clause may be varied or terminated by agreement between the Seller and the Buyer (and the Buyer may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this clause) without the consent of any Group Company.
14.6 The Seller’s Guarantor must reimburse the Buyer and each Group Company for all legal and other costs (including VAT to the extent irrecoverable) incurred by the Buyer or that Group Company in connection with the enforcement of the Seller’s Guarantor’s obligations under this Agreement.
14.7 The Seller’s Guarantor warrants to the Buyer that:
(a) it has the power to execute and deliver this Agreement and to perform its obligations under it and has taken all action necessary to authorise such execution and delivery and the performance of such obligations;
(b) this Agreement constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms;
(c) the execution and delivery by the Seller’s Guarantor of this Agreement and the performance of its obligations under it do not and will not violate or conflict with or constitute a default under any law, rule or regulation applicable to it, any provisions of its constitutional documents, any order or judgment of any court or other agency or government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; and
(d) all authorisations from, and all notices or filings with, any governmental or other authority that are necessary to enable the Seller’s Guarantor to execute, deliver and perform its obligations under this Agreement have been obtained or made (as the case may be) and are in full force and effect and all conditions of each such authorisation have been complied with;
(e) no order has been made and no resolution has been proposed or passed for the winding up of or for a provisional liquidator to be appointed in respect of the Seller’s Guarantor and no petition has been presented for the purpose of winding up the Seller’s Guarantor;
(f) no administration order has been made in respect of the Seller’s Guarantor and no petition or other application to the court for such an order has been presented or made and no administrator has been appointed (or notice of intention so to appoint filed in court) in respect of the Seller’s Guarantor;
(g) no receiver (which expression shall include an administrative receiver) has been appointed in respect of the Seller’s Guarantor or in respect of all or any material part of the Seller’s Guarantor’s assets;
(h) no voluntary arrangement has been proposed under section 1 of the Insolvency Xxx 0000 in respect of the Seller’s Guarantor;
(i) no distress, execution or other process has been levied or threatened in respect of any of the Seller’s Guarantor’s assets;
(j) No event analogous to any of the circumstances mentioned in any of the foregoing sub-paragraphs 14.7(e) to 14.7(i) has occurred in relation to the Seller’s Guarantor outside England.
Appears in 1 contract
Samples: Share Purchase and Portfolio Transfer Agreement (Standard Management Corp)
Seller’s Guarantee. 14.1 23.1 The Seller’s Guarantor hereby unconditionally and irrevocably:
(a) irrevocably guarantees to the Buyer Purchaser the payment when full, due of all amounts payable and punctual performance and observation by the Seller under or pursuant to this Agreement;
(b) undertakes to procure that of all the obligations of the Seller will perform when due all its obligations under or pursuant to the terms of this Agreement;
Agreement (c) agrees that if and each time that the “Seller Obligations”). In the event of any failure by the Seller fails to make any payment when it is due under perform or pursuant to this Agreementobserve such Seller Obligations, the Seller’s Guarantor shall on demand (without requiring the Buyer or any Group Company first to take steps against be liable for the Seller or any other person) pay that amount to the Buyer Obligations arising hereunder as if it were a primary obligor.
23.2 The obligations of the principal obligor Seller’s Guarantor under this clause 23:
23.2.1 shall be continuing obligations in respect of that amount; and
(d) agrees as if it were the principal obligor to indemnify the Buyer against all losses and damages sustained by the Buyer or any Group Company flowing from any non-payment or default of any kind Seller Obligations which have not been previously discharged by the Seller under or pursuant to this Agreement.
14.2 The the Seller’s Guarantor’s obligations under this clause will Guarantor and shall not be satisfied, discharged or affected by:
(a) any time or indulgence granted to, or composition with, the Seller or any other person;
(b) any intermediate payment or settlement of account or by any change in the constitution or control of, or the insolvency of, or bankruptcyany liquidation, winding-winding up or analogous proceedings relating to the Seller;
(c) 23.2.2 shall be discharged on an ongoing basis by the taking, variation, renewal or release of, or neglect to perfect or enforce this agreement, or any right, guarantee, remedy or security from or against due performance by the Seller or the Seller’s Guarantor of the relevant Seller Obligations, but otherwise shall not be discharged, prejudiced, lessened, affected or impaired by any other person;act, omission or circumstance whatsoever which but for this provision might operate to release or exonerate the Seller from all or any part of such obligations or in any way discharge, prejudice, lessen, affect or impair the same; and
(d) 23.2.3 shall not be released or diminished by any forbearance, neglect or delay in seeking performance hereby imposed or any granting of time for such performance or, except in respect of the variation of the Seller Obligation or this clause 23 in accordance with this Agreement, any variation or change to the terms of this agreement; orAgreement.
(e) 23.3 The Seller’s Guarantor waives any unenforceability right it may have to require the Purchaser first to proceed against or invalidity claim payment from the Seller before claiming under this clause 23.
23.4 As a separate and independent stipulation, the Seller’s Guarantor agrees that any Seller Obligations expressed to be given by the Seller which may not be enforceable against or recoverable from the Seller by reason of any obligation disability or incapacity on or on behalf of the Seller, so that this Agreement Seller shall nevertheless be construed as if there were no such unenforceability or invalidity; provided, however, neither the Buyer nor any member of the Buyer’s Group shall have any greater rights enforceable against the Seller’s Guarantor than they have against as though the Seller under this Agreement.
14.3 Until all amounts which may be or become payable under this agreement have same had been irrevocably paid in full, the Seller’s Guarantor shall not as a result of this agreement or any payment or performance under this agreement be subrogated to any right or security of the Buyer or claim or prove in competition with the Buyer or any Group Company against the Seller or any other person or claim any right of contribution, set-off or indemnity.
14.4 The Seller’s Guarantor will not take or hold any security from the Seller in respect of this Agreement and any such security which is held in breach of this provision will be held incurred by the Seller’s Guarantor in trust for the Buyer.
14.5 The provisions of this clause may with the prior written consent of the Buyer and, subject to paragraph (b) below, be enforced by any Group Company against and the Seller’s Guarantor under was the Contracts (Rights of Third Parties) Xxx 0000.
(a) No Group Company shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this agreement.
(b) The provisions of this clause may be varied or terminated by agreement between the Seller sole and the Buyer (and the Buyer may also release or compromise in whole or in part any liability principal obligor in respect of rights thereof and/or shall be performed or claims contemplated by this clause) without the consent of any Group Company.
14.6 The Seller’s Guarantor must reimburse the Buyer and each Group Company for all legal and other costs (including VAT to the extent irrecoverable) incurred by the Buyer or that Group Company in connection with the enforcement of the Seller’s Guarantor’s obligations under this Agreement.
14.7 The Seller’s Guarantor warrants to the Buyer that:
(a) it has the power to execute and deliver this Agreement and to perform its obligations under it and has taken all action necessary to authorise such execution and delivery and the performance of such obligations;
(b) this Agreement constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms;
(c) the execution and delivery paid by the Seller’s Guarantor of this Agreement and the performance of its obligations under it do not and will not violate or conflict with or constitute a default under any law, rule or regulation applicable to it, any provisions of its constitutional documents, any order or judgment of any court or other agency or government applicable to it or any of its assets or any contractual restriction binding after receiving written notice on or affecting it or any of its assets; and
(d) all authorisations from, and all notices or filings with, any governmental or other authority that are necessary to enable after the Seller’s Guarantor to execute, deliver and perform its obligations under this Agreement have been obtained or made (as the case may be) and are in full force and effect and all conditions of each time at which such authorisation have been complied with;
(e) no order has been made and no resolution has been proposed or passed for the winding up of or for a provisional liquidator to be appointed in respect of the Seller’s Guarantor and no petition has been presented for the purpose of winding up the Seller’s Guarantor;
(f) no administration order has been made in respect of the Seller’s Guarantor and no petition or other application to the court for such an order has been presented or made and no administrator has been appointed (or notice of intention so to appoint filed in court) in respect of the Seller’s Guarantor;
(g) no receiver (which expression shall include an administrative receiver) has been appointed in respect of the Seller’s Guarantor or in respect of all or any material part of the Seller’s Guarantor’s assets;
(h) no voluntary arrangement has been proposed under section 1 of the Insolvency Xxx 0000 in respect of the Seller’s Guarantor;
(i) no distress, execution or other process has been levied or threatened in respect of any of the Seller’s Guarantor’s assets;
(j) No event analogous to any of the circumstances mentioned in any of the foregoing sub-paragraphs 14.7(e) to 14.7(i) has occurred in relation to the Seller’s Guarantor outside Englandobligation arises.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Esterline Technologies Corp)
Seller’s Guarantee. 14.1 The Seller’s Guarantor unconditionally and irrevocably:
(a) guarantees to the Buyer the payment when due of all amounts payable by the Seller under or pursuant to this Agreement;
(b) undertakes to procure that the Seller will perform when due all its obligations under or pursuant to this Agreement;
(c) agrees that if and each time that the Seller fails to make any payment when it is due under or pursuant to this Agreement, the Seller’s Guarantor shall on demand (without requiring the Buyer or any Group Company first to take steps against the Seller or any other person) pay that amount to the Buyer as if it were the principal obligor in respect of that amount; and
(d) agrees as if it were the principal obligor to indemnify the Buyer against all losses and damages sustained by the Buyer or any Group Company flowing from any non-payment or default of any kind by the Seller under or pursuant to this Agreement.
14.2 The Seller’s Guarantor’s obligations under this clause will not be affected by:
(a) any time or indulgence granted to, or composition with, the Seller or any other person;
(b) any intermediate payment or settlement of account or by any change in the constitution or control of, or the insolvency of, or bankruptcy, winding-up or analogous proceedings relating to the Seller;
(c) the taking, variation, renewal or release of, or neglect to perfect or enforce this agreement, or any right, guarantee, remedy or security from or against the Seller or any other person;
(d) any variation or change to the terms of this agreement; or
(e) any unenforceability or invalidity of any obligation of the Seller, so that this Agreement shall be construed as if there were no such unenforceability or invalidity; provided, however, neither the Buyer nor any member of the Buyer’s Group shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this Agreement.
14.3 Until all amounts which may be or become payable under this agreement have been irrevocably paid in full, the Seller’s Guarantor shall not as a result of this agreement or any payment or performance under this agreement be subrogated to any right or security of the Buyer or claim or prove in competition with the Buyer or any Group Company against the Seller or any other person or claim any right of contribution, set-off or indemnity.
14.4 The Seller’s Guarantor will not take or hold any security from the Seller in respect of this Agreement and any such security which is held in breach of this provision will be held by the Seller’s Guarantor in trust for the Buyer.
14.5 The provisions of this clause may with the prior written consent of the Buyer and, subject to paragraph (b) below, be enforced by any Group Company against the Seller’s Guarantor under the Contracts (Rights of Third Parties) Xxx 0000.
(a) No Group Company shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this agreement.
(b) The provisions of this clause may be varied or terminated by agreement between the Seller and the Buyer (and the Buyer may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this clause) without the consent of any Group Company.
14.6 The Seller’s Guarantor must reimburse the Buyer and each Group Company for all legal and other costs (including VAT to the extent irrecoverable) incurred by the Buyer or that Group Company in connection with the enforcement of the Seller’s Guarantor’s obligations under this Agreement.
14.7 The Seller’s Guarantor warrants to the Buyer that:
(a) it has the power to execute and deliver this Agreement and to perform its obligations under it and has taken all action necessary to authorise such execution and delivery and the performance of such obligations;
(b) this Agreement constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms;
(c) the execution and delivery by the Seller’s Guarantor of this Agreement and the performance of its obligations under it do not and will not violate or conflict with or constitute a default under any law, rule or regulation applicable to it, any provisions of its constitutional documents, any order or judgment of any court or other agency or government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; and
(d) all authorisations from, and all notices or filings with, any governmental or other authority that are necessary to enable the Seller’s Guarantor to execute, deliver and perform its obligations under this Agreement have been obtained or made (as the case may be) and are in full force and effect and all conditions of each such authorisation have been complied with;
(e) no order has been made and no resolution has been proposed or passed for the winding up of or for a provisional liquidator to be appointed in respect of the Seller’s Guarantor and no petition has been presented for the purpose of winding up the Seller’s Guarantor;
(f) no administration order has been made in respect of the Seller’s Guarantor and no petition or other application to the court for such an order has been presented or made and no administrator has been appointed (or notice of intention so to appoint filed in court) in respect of the Seller’s Guarantor;
(g) no receiver (which expression shall include an administrative receiver) has been appointed in respect of the Seller’s Guarantor or in respect of all or any material part of the Seller’s Guarantor’s assets;
(h) no voluntary arrangement has been proposed under section 1 of the Insolvency Xxx 0000 in respect of the Seller’s Guarantor;
(i) no distress, execution or other process has been levied or threatened in respect of any of the Seller’s Guarantor’s assets;
(j) No event analogous to any of the circumstances mentioned in any of the foregoing sub-paragraphs 14.7(e) to 14.7(i) has occurred in relation to the Seller’s Guarantor outside England.
Appears in 1 contract
Samples: Sale and Purchase Agreement (CompuCredit Holdings Corp)
Seller’s Guarantee. 14.1 26.1 The Seller’s Guarantor Seller unconditionally and irrevocably:
(a) irrevocably guarantees to the Buyer Purchaser and the payment when Designated Purchasers the due and punctual performance and observance by the Seller and each of the Designated Sellers of all amounts of their respective obligations (including any liabilities to pay damages arising out of or in connection with this Agreement) under or pursuant to the Transaction Documents (the Seller Guaranteed Obligations) and hereby agrees to indemnify the Purchaser and the Designated Purchasers in respect of the full amount of any sum payable (including any liability to pay damages) by the Seller and each Designated Seller under or pursuant to this Agreement;the Transaction Documents.
(b) undertakes 26.2 Without prejudice to procure that the Seller will perform when due all its obligations under or pursuant to this Agreement;
(c) agrees that if and each time that rights of the Seller fails to make any payment when it is due under or pursuant to this Agreement, the Seller’s Guarantor shall on demand (without requiring the Buyer or any Group Company first to take steps Purchaser against the Seller or any other person) pay that amount to of the Buyer as if it were Designated Sellers, the Seller shall be a primary obligor and shall be deemed a principal obligor debtor in respect of that amount; and
its obligations (d) agrees as if it were the principal obligor to indemnify the Buyer against all losses and damages sustained by the Buyer or any Group Company flowing from any non-payment or default of any kind by including the Seller Guaranteed Obligations) under or pursuant to this AgreementAgreement and not a surety.
14.2 26.3 The Purchaser may enforce its rights against the Seller without first exercising any rights or remedies against the relevant Designated Seller.
26.4 The Seller’s Guarantor’s obligations liability to the Purchaser under this clause will 26.4 shall not be discharged, impaired or affected by:
(a) any time legal limitation, disability or indulgence granted to, incapacity or composition with, other circumstances relating to the Seller or any of the Designated Sellers or any change in the members or status of the Seller or any of the Designated Sellers or any other person;
(b) any intermediate payment variation of any of the terms of this Agreement or settlement of account or by any change in of the constitution or control of, or the insolvency of, or bankruptcy, winding-up or analogous proceedings relating to the SellerSeller Guaranteed Obligations;
(c) any time, waiver or consent granted to or composition with the taking, variation, renewal or release of, or neglect to perfect or enforce this agreement, Seller or any right, guarantee, remedy or security from or against of the Seller Designated Sellers or any other person;
(d) the bankruptcy, liquidation or dissolution of the Seller or any variation of the Designated Sellers or the appointment of a receiver, administrative receiver or administrator of the Seller or any of the Designated Seller’s assets or any other insolvency proceeding relating the Seller or to any of the Designated Sellers or any change of control of the Seller or any of the Designated Sellers or any other matter affecting the obligation of the Seller or any of the Designated Sellers to the terms of this agreement; orperform any Seller Guaranteed Obligation;
(e) any unenforceability unenforceability, illegality or invalidity of any obligation of the Seller, so that this Agreement shall be construed as if there were no such unenforceability or invalidity; provided, however, neither the Buyer nor any member of the Buyer’s Group shall have any greater rights against the Seller’s Guarantor than they have against the Seller person under this Agreement.; or
14.3 Until all amounts which may be or become payable under this agreement have been irrevocably paid in full, the Seller’s Guarantor shall not as a result of this agreement or any payment or performance under this agreement be subrogated to any right or security of the Buyer or claim or prove in competition with the Buyer or any Group Company against the Seller or (f) any other person matter which, but for this clause, would reduce, vitiate or claim any right affect the obligations of contribution, set-off or indemnity.
14.4 The Seller’s Guarantor will not take or hold any security from the Seller in respect of this Agreement and any such security which is held in breach of this provision will be held by the Seller’s Guarantor in trust for the Buyer.
14.5 The provisions of this clause may with the prior written consent of the Buyer and, subject to paragraph (b) below, be enforced by any Group Company against the Seller’s Guarantor under the Contracts (Rights of Third Parties) Xxx 0000.
(a) No Group Company shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this agreementGuaranteed Obligations.
(b) The provisions of this clause may be varied or terminated by agreement between the Seller and the Buyer (and the Buyer may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this clause) without the consent of any Group Company.
14.6 The Seller’s Guarantor must reimburse the Buyer and each Group Company for all legal and other costs (including VAT to the extent irrecoverable) incurred by the Buyer or that Group Company in connection with the enforcement of the Seller’s Guarantor’s obligations under this Agreement.
14.7 The Seller’s Guarantor warrants to the Buyer that:
(a) it has the power to execute and deliver this Agreement and to perform its obligations under it and has taken all action necessary to authorise such execution and delivery and the performance of such obligations;
(b) this Agreement constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms;
(c) the execution and delivery by the Seller’s Guarantor of this Agreement and the performance of its obligations under it do not and will not violate or conflict with or constitute a default under any law, rule or regulation applicable to it, any provisions of its constitutional documents, any order or judgment of any court or other agency or government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; and
(d) all authorisations from, and all notices or filings with, any governmental or other authority that are necessary to enable the Seller’s Guarantor to execute, deliver and perform its obligations under this Agreement have been obtained or made (as the case may be) and are in full force and effect and all conditions of each such authorisation have been complied with;
(e) no order has been made and no resolution has been proposed or passed for the winding up of or for a provisional liquidator to be appointed in respect of the Seller’s Guarantor and no petition has been presented for the purpose of winding up the Seller’s Guarantor;
(f) no administration order has been made in respect of the Seller’s Guarantor and no petition or other application to the court for such an order has been presented or made and no administrator has been appointed (or notice of intention so to appoint filed in court) in respect of the Seller’s Guarantor;
(g) no receiver (which expression shall include an administrative receiver) has been appointed in respect of the Seller’s Guarantor or in respect of all or any material part of the Seller’s Guarantor’s assets;
(h) no voluntary arrangement has been proposed under section 1 of the Insolvency Xxx 0000 in respect of the Seller’s Guarantor;
(i) no distress, execution or other process has been levied or threatened in respect of any of the Seller’s Guarantor’s assets;
(j) No event analogous to any of the circumstances mentioned in any of the foregoing sub-paragraphs 14.7(e) to 14.7(i) has occurred in relation to the Seller’s Guarantor outside England.
Appears in 1 contract
Seller’s Guarantee. 14.1 The Seller’s 13.1.1 In consideration of the Purchaser and each other Relevant Purchaser entering into this Agreement, the Seller Guarantor unconditionally and irrevocably:
(a) irrevocably guarantees to the Buyer Purchaser (to the payment when extent it is a beneficiary of an obligation of a Relevant Seller) and the other Relevant Purchasers the due and punctual performance and observance by each of the Relevant Sellers of all amounts payable by the Seller under or pursuant to this Agreement;
(b) undertakes to procure that the Seller will perform when due all its obligations under or pursuant to this Agreement;
(c) agrees that if their obligations, commitments, undertakings, covenants, warranties and each time that the Seller fails to make any payment when it is due indemnities under or pursuant to this Agreement, any Local Transfer Document and the Seller’s Tax Indemnity (“Sellers’ Guaranteed Obligations”) to the extent of any limit on the liability of the Seller and the other Relevant Sellers under this Agreement, any Local Transfer Document and the Tax Indemnity and agrees to indemnify the Purchaser and the other Relevant Purchasers against all reasonable costs (including legal costs) which the Purchaser or the other Relevant Purchasers may suffer or incur through or arising from the enforcement of this guarantee.
13.1.2 If and whenever any of the Relevant Sellers defaults for any reason whatsoever in the performance of any of the Sellers’ Guaranteed Obligations, the Seller Guarantor shall forthwith upon demand unconditionally perform (or procure the performance of) and satisfy (or procure the satisfaction of) the Sellers’ Guaranteed Obligations in regard to which such default has been made in the manner prescribed by this Agreement, any Local Transfer Document and the Tax Indemnity and so that the same benefits shall be conferred on demand (without requiring the Buyer Purchaser and the other Relevant Purchasers as they would have received if the Sellers’ Guaranteed Obligations had been duly performed and satisfied by the Relevant Sellers. The Seller Guarantor hereby waives any rights which it may have to require the Purchaser and/or the other Relevant Purchasers to proceed first against or any Group Company first claim payment from the Relevant Seller(s) to take steps against the intent that as between the Purchaser and/or the other Relevant Purchasers and the Seller or any other person) pay that amount to Guarantor the Buyer latter shall be liable as principal debtor as if it were has entered all undertakings, agreements and other obligations jointly and severally with the principal obligor in respect of that amount; and
(d) agrees as if it were the principal obligor to indemnify the Buyer against all losses and damages sustained by the Buyer or any Group Company flowing from any non-payment or default of any kind by the Seller under or pursuant to this AgreementRelevant Sellers.
14.2 The Seller’s Guarantor’s obligations under this clause will 13.1.3 This guarantee is to be a continuing security and accordingly is to remain in force until all Sellers’ Guaranteed Obligations shall have been performed or satisfied and shall not be satisfied, discharged or affected by:
(a) any time or indulgence granted to, or composition with, the Seller or any other person;
(b) any by an intermediate payment or settlement of account by, or by any change in the constitution or control of, or the insolvency of, of or bankruptcy, winding-up or analogous proceedings proceeding relating to, any Relevant Seller. This guarantee is in addition to and without prejudice to and not in substitution for any rights or security which the SellerPurchaser and the other Relevant Purchasers may now or hereafter have or hold for the performance and observance of the Sellers’ Guaranteed Obligations.
13.1.4 As a separate and independent obligation, the Seller Guarantor agrees that any of the Sellers’ Guaranteed Obligations (including any monies payable) which may not be enforceable against or recoverable from any of the Relevant Sellers by reason of any legal limitation, disability or incapacity on or of any of the Relevant Sellers or any other fact or circumstances (other than any limitation imposed by this Agreement or Local Transfer Document or the Tax Indemnity) shall nevertheless be enforceable against and recoverable from the Seller Guarantor as though the same had been incurred by the Seller Guarantor and the Seller Guarantor were the sole or principal obligor in respect thereof and shall be performed or paid by the Seller Guarantor on demand.
13.1.5 The liability of the Seller Guarantor under this Clause 13.1:
(i) shall not be released or diminished by any variation of the Sellers’ Guaranteed Obligations or any forbearance, neglect or delay in seeking performance of the Sellers’ Guaranteed Obligations or any granting of time for such performance;
(cii) the taking, variation, renewal shall not be affected or release of, or neglect to perfect or enforce this agreement, or any right, guarantee, remedy or security from or against the Seller or impaired by reason of any other person;
(d) any variation fact or change to event which in the terms of this agreement; or
(e) any unenforceability or invalidity of any obligation of the Seller, so that this Agreement shall be construed as if there were no such unenforceability or invalidity; provided, however, neither the Buyer nor any member of the Buyer’s Group shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this Agreement.
14.3 Until all amounts which may be or become payable under this agreement have been irrevocably paid in full, the Seller’s Guarantor shall not as a result of this agreement or any payment or performance under this agreement be subrogated to any right or security of the Buyer or claim or prove in competition with the Buyer or any Group Company against the Seller or any other person or claim any right of contribution, set-off or indemnity.
14.4 The Seller’s Guarantor will not take or hold any security from the Seller in respect of this Agreement and any such security which is held in breach absence of this provision will be held by the Seller’s Guarantor in trust for the Buyer.
14.5 The provisions of this clause may with the prior written consent of the Buyer and, subject to paragraph (b) below, be enforced by any Group Company against the Seller’s Guarantor under the Contracts (Rights of Third Parties) Xxx 0000.
(a) No Group Company shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this agreement.
(b) The provisions of this clause may be varied would or terminated by agreement between the Seller and the Buyer (and the Buyer may also might constitute or afford a legal or equitable discharge or release or compromise in whole or in part any liability in respect of rights or claims contemplated by this clause) without the consent of any Group Company.
14.6 The Seller’s Guarantor must reimburse the Buyer and each Group Company for all legal and other costs (including VAT a defence to the extent irrecoverable) incurred by the Buyer or that Group Company in connection with the enforcement of the Seller’s Guarantor’s obligations under this Agreement.
14.7 The Seller’s Guarantor warrants to the Buyer that:
(a) it has the power to execute and deliver this Agreement and to perform its obligations under it and has taken all action necessary to authorise such execution and delivery and the performance of such obligations;
(b) this Agreement constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms;
(c) the execution and delivery by the Seller’s Guarantor of this Agreement and the performance of its obligations under it do not and will not violate or conflict with or constitute a default under any law, rule or regulation applicable to it, any provisions of its constitutional documents, any order or judgment of any court or other agency or government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assetsguarantor; and
(diii) all authorisations from, and all notices shall not be affected by any arrangements which the Purchaser and/or any other Relevant Purchaser(s) may make with the Relevant Sellers or filings with, any governmental with another person which (but for this Clause 13.1) might operate to diminish or other authority that are necessary to enable discharge the Seller’s Guarantor to execute, deliver and perform its obligations under this Agreement have been obtained or made (as the case may be) and are in full force and effect and all conditions of each such authorisation have been complied with;
(e) no order has been made and no resolution has been proposed or passed for the winding up liability of or for otherwise provide a provisional liquidator defence to be appointed in respect of the Seller’s Guarantor and no petition has been presented for the purpose of winding up the Seller’s Guarantor;
(f) no administration order has been made in respect of the Seller’s Guarantor and no petition or other application to the court for such an order has been presented or made and no administrator has been appointed (or notice of intention so to appoint filed in court) in respect of the Seller’s Guarantor;
(g) no receiver (which expression shall include an administrative receiver) has been appointed in respect of the Seller’s Guarantor or in respect of all or any material part of the Seller’s Guarantor’s assets;
(h) no voluntary arrangement has been proposed under section 1 of the Insolvency Xxx 0000 in respect of the Seller’s Guarantor;
(i) no distress, execution or other process has been levied or threatened in respect of any of the Seller’s Guarantor’s assets;
(j) No event analogous to any of the circumstances mentioned in any of the foregoing sub-paragraphs 14.7(e) to 14.7(i) has occurred in relation to the Seller’s Guarantor outside Englanda surety.
Appears in 1 contract
Samples: Share and Business Sale Agreement (Scotts Miracle-Gro Co)
Seller’s Guarantee. 14.1 The 10.1 In consideration of the Buyer entering into this agreement, the Seller’s Guarantor (as primary obligor and not merely as a surety) unconditionally and irrevocably:
irrevocably guarantees (aSw. Proprieborgen) guarantees to as a continuing obligation the Buyer the payment when due of all amounts payable proper and punctual performance and observance by the Seller under or pursuant to this Agreement;
(b) undertakes to procure that the Seller will perform when due all of its obligations under or pursuant to this Agreement;
(c) agrees that if and each time that the Seller fails to make agreement or any payment when it is due under or agreement entered into pursuant to this Agreement, agreement other than any such obligations which require the Seller’s Guarantor shall on demand (without requiring Seller to pay sums of money to the Buyer or any Group Company first to take steps against members of the Seller or any other person) pay that amount to the Buyer as if it were the principal obligor in respect of that amount; and
(d) agrees as if it were the principal obligor to indemnify the Buyer against all losses and damages sustained by the Buyer or any Group Company flowing from any non-payment or default of any kind by the Seller under or pursuant to this AgreementBuyer’s Group.
14.2 10.2 The Seller’s Guarantor’s obligations liability under this clause will 10 shall not be affected affected, discharged, modified or impaired by:
(a) any time amendment to or indulgence granted to, or composition with, the Seller variation of this agreement or any other personagreement or document entered into pursuant to this agreement;
(b) any intermediate payment release, waiver or settlement of account time or by any change in the constitution or control of, or the insolvency of, or bankruptcy, winding-up or analogous proceedings relating other indulgence granted to the SellerSeller or any third party;
(c) any insolvency, liquidation, administration, receivership or winding-up or dissolution of the taking, variation, renewal or release of, or neglect to perfect or enforce this agreement, or any right, guarantee, remedy or security from or against the Seller or any other personSeller;
(d) any variation act, omission, event or change circumstance which causes any of the obligations of the Seller to the terms of this agreement; orbe or become void, voidable, invalid or unenforceable for any reason;
(e) any unenforceability change of control or invalidity of any obligation sale of the Seller, so that this Agreement shall be construed as if there were no such unenforceability ; or
(f) any other act or invalidity; provided, however, neither the Buyer nor any member of the Buyer’s Group shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this Agreement.
14.3 Until all amounts which may be or become payable under this agreement have been irrevocably paid in full, the Seller’s Guarantor shall not as a result of this agreement or any payment or performance under this agreement be subrogated to any right or security of the Buyer or claim or prove in competition with the Buyer or any Group Company against the Seller omission or any other person event or claim any right of contribution, set-off circumstance (whether or indemnity.
14.4 The Seller’s Guarantor will not take known to the Buyer which would or hold any security from the Seller in respect of this Agreement and any such security which is held in breach of this provision will be held by the Seller’s Guarantor in trust might (but for the Buyer.
14.5 The provisions of this clause may with the prior written consent of the Buyer and, subject 10.2) operate to paragraph (b) below, be enforced by any Group Company against the Seller’s Guarantor under the Contracts (Rights of Third Parties) Xxx 0000.
(a) No Group Company shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this agreement.
(b) The provisions of this clause may be varied impair or terminated by agreement between the Seller and the Buyer (and the Buyer may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this clause) without the consent of any Group Company.
14.6 The Seller’s Guarantor must reimburse the Buyer and each Group Company for all legal and other costs (including VAT to the extent irrecoverable) incurred by the Buyer or that Group Company in connection with the enforcement of discharge the Seller’s Guarantor’s liability under the guarantee and indemnity set out in this clause 10.
10.3 The Buyer may claim under the guarantee set out in this clause 10 without making any claim or taking any proceedings against the Seller or taking any action to claim under or enforce any other right or security or other guarantee which it may hold from time to time in respect of the obligations of the Seller under this Agreementagreement or any agreement or document entered into pursuant to this agreement.
14.7 10.4 The Seller’s Guarantor warrants to guarantee set out in this clause 10 shall remain in force and effect until the Buyer that:
(a) it Seller has the power to execute performed, observed and deliver this Agreement and to perform its obligations under it and has taken discharged all action necessary to authorise such execution and delivery and the performance of such obligations;
(b) this Agreement constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms;
(c) the execution and delivery by the Seller’s Guarantor of this Agreement and the performance of its obligations under it do not and will not violate or conflict with pursuant to this agreement any agreement or constitute a default under any law, rule or regulation applicable document entered into pursuant to it, any provisions of its constitutional documents, any order or judgment of any court or other agency or government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; and
(d) all authorisations from, and all notices or filings with, any governmental or other authority that are necessary to enable the Seller’s Guarantor to execute, deliver and perform its obligations under this Agreement have been obtained or made (as the case may be) and are in full force and effect and all conditions of each such authorisation have been complied with;
(e) no order has been made and no resolution has been proposed or passed for the winding up of or for a provisional liquidator to be appointed in respect of the Seller’s Guarantor and no petition has been presented for the purpose of winding up the Seller’s Guarantor;
(f) no administration order has been made in respect of the Seller’s Guarantor and no petition or other application to the court for such an order has been presented or made and no administrator has been appointed (or notice of intention so to appoint filed in court) in respect of the Seller’s Guarantor;
(g) no receiver (which expression shall include an administrative receiver) has been appointed in respect of the Seller’s Guarantor or in respect of all or any material part of the Seller’s Guarantor’s assets;
(h) no voluntary arrangement has been proposed under section 1 of the Insolvency Xxx 0000 in respect of the Seller’s Guarantor;
(i) no distress, execution or other process has been levied or threatened in respect of any of the Seller’s Guarantor’s assets;
(j) No event analogous to any of the circumstances mentioned in any of the foregoing sub-paragraphs 14.7(e) to 14.7(i) has occurred in relation to the Seller’s Guarantor outside Englandagreement.
Appears in 1 contract
Seller’s Guarantee. 14.1 19.1 The Seller’s Sellers’ Guarantor unconditionally hereby covenants to the Buyers to comply with the provisions of this clause 19.
19.2 The Sellers’ Guarantor irrevocably and irrevocablyunconditionally:
(a) guarantees to the Buyer Buyers as a continuing obligation the payment when due and punctual performance and discharge by the Sellers of all amounts payable their obligations (including the obligation to pay money) under this Agreement and the Separation Agreement and agrees to pay on demand from time to time each sum which any of the Sellers are liable to pay under this Agreement and/or the Separation Agreement at any time to the Buyers and which has not been paid by the Seller under or pursuant to this Agreement;Sellers at the time the demand is made; and
(b) undertakes to procure that the Seller will perform when due all its obligations under or pursuant to this Agreement;
(c) agrees agrees, as an additional and independent obligation, that if and each time that any of the Seller fails to make obligations guaranteed by the Sellers’ Guarantor under this clause are not recoverable from the Sellers’ Guarantor under the guarantee in clause 19.2(a) for any payment when it is due under or pursuant to this Agreementreason, the Seller’s Sellers’ Guarantor shall be liable to the Buyers as a principal debtor by way of indemnity for the same amount for which it would have been liable had those Sellers’ Guaranteed Obligations been recoverable and further agrees to discharge that liability on demand (without requiring the Buyer or any Group Company first to take steps against the Seller or any other person) pay that amount to the Buyer as if it were the principal obligor in respect of that amount; and
(d) agrees as if it were the principal obligor to indemnify the Buyer against all losses and damages sustained by the Buyer or any Group Company flowing Sellers from any non-payment or default of any kind by time to time, (the Seller under or pursuant to this Agreement.
14.2 The Seller’s Sellers’ Guarantor’s obligations under this clause will being the “Sellers’ Guaranteed Obligations”).
19.3 The guarantee and indemnity set out in this clause 19 (the “Sellers’ Guarantee”) shall be a continuing guarantee and obligation. The Buyers may make claims and demands of the Sellers’ Guarantor pursuant to the Sellers’ Guaranteed Obligations without limit in number.
19.4 The Sellers’ Guaranteed Obligations shall not be reduced, discharged, impaired or adversely affected byby reason of:
(a) any time time, indulgence, waiver or indulgence granted to, or composition with, concession which the Seller Buyers may grant to any of the Sellers or any other person;
(b) any intermediate payment legal limitation, disability or settlement of account incapacity or by any change in the constitution or control of, or the insolvency of, or bankruptcy, winding-up or analogous proceedings other circumstances relating to the SellerSellers or the Sellers’ Guarantor;
(c) the takingany termination, amendment, variation, renewal release, novation or release of, supplement of or neglect to perfect this Agreement or enforce this agreement, the Separation Agreement or any rightof their terms or of any Sellers’ Guaranteed Obligations;
(d) any variation, guaranteeextension, discharge, compromise, dealing with, exchange or renewal of any right or remedy which the Buyers may now or security hereafter have from or against the Seller Sellers and any other person in respect of any of the obligations and liabilities of the Sellers and any other person under and in respect of this Agreement, the Separation Agreement and the other Transaction Documents;
(e) any act or omission by the Buyers or any other person in taking up, perfecting or enforcing any security or guarantee from or against the Sellers and any other person;
(f) any claim or enforcement of payment from the Sellers and any other person;
(g) any defect, irregularity, unenforceability, invalidity, illegality, frustration or discharge by operation of law of any of the obligations of the Sellers or the Sellers’ Guarantor;
(h) the insolvency, liquidation, winding up or dissolution of any of the Sellers or the appointment of a receiver, administrative receiver or administrator of any of the Sellers’ assets or any change of control of the Sellers or the occurrence of any circumstance affecting the liability of the Sellers to discharge any Sellers’ Guaranteed Obligation; or
(i) any act or omission which would not have discharged or affected the obligations of the Sellers’ Guarantor had it been a principal debtor instead of guarantor or by anything done or omitted by any person which but for this provision might operate to exonerate or discharge the Sellers’ Guarantor or otherwise reduce or extinguish its liability under the Sellers’ Guarantee.
19.5 The obligations and liabilities expressed to be undertaken by the Sellers’ Guarantor under the Sellers’ Guarantee are those of primary obligor and not merely as a surety.
19.6 The Buyers shall not be obliged before taking steps to enforce any of its rights and remedies in respect of the Sellers’ Guaranteed Obligations:
(a) to take action or obtain judgment in any court against any of the Sellers or any other person;
(db) to make or file any variation claim in a bankruptcy, liquidation, administration or change to insolvency of any of the terms of this agreementSellers or any other person; or
(ec) to make, demand, enforce or seek to enforce any unenforceability claim, right or invalidity of remedy against any obligation of the SellerSellers or any other person.
19.7 Except as expressly provided in this Agreement, so that until all sums owing or capable of becoming owed to the Buyers by the Sellers under this Agreement shall be construed as if there were no such unenforceability or invalidity; provided, however, neither and the Buyer nor any member of the Buyer’s Group shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this Agreement.
14.3 Until all amounts which may be or become payable under this agreement Separation Agreement have been irrevocably paid in full, the Seller’s Sellers’ Guarantor shall not as a result not, and shall procure that no other member of this agreement the Sellers’ Group shall, take, exercise or receive the benefit of any payment security or performance under this agreement be subrogated to any other right or security of the Buyer benefit (whether by set-off, counterclaim, subrogation, indemnity, proof in liquidation or claim otherwise and whether from contribution or prove in competition with the Buyer otherwise) from or any Group Company against the Seller or Sellers and any other person or claim any right of contribution, set-off or indemnity.
14.4 The Seller’s Guarantor will not take or hold any security from the Seller in respect of any liability of or payment by the Sellers’ Guarantor pursuant to the Sellers’ Guaranteed Obligations or otherwise in connection with the Sellers’ Guarantee.
19.8 The Sellers’ Guarantee in this Agreement clause 19 shall be in addition to and shall not affect or be affected by or merge with any such security which is held in breach of this provision will be other judgment, security, right or remedy obtained or held by the Seller’s Guarantor in trust Buyers from time to time for the Buyerdischarge and performance of any of the liabilities and obligations of the Sellers to the Buyers.
14.5 The provisions of this clause may with the prior written consent of the Buyer and, subject to paragraph (b) below, be enforced by any Group Company against the Seller’s Guarantor under the Contracts (Rights of Third Parties) Xxx 0000.
(a) No Group Company shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this agreement.
(b) The provisions of this clause may be varied 19.9 Any settlement or terminated by agreement between the Seller and the Buyer (and the Buyer may also release or compromise discharge in whole or in part any liability in respect by the Buyers of rights the Sellers’ Guaranteed Obligations shall be deemed to be given or claims contemplated made on condition that it shall be of no effect as a settlement or discharge if the assurance, security or payment on the faith of which it was made shall afterwards be avoided, set aside or ordered to be refunded by this clause) without the consent virtue of any Group Company.
14.6 The Seller’s Guarantor must reimburse the Buyer and each Group Company for all legal and other costs (including VAT to the extent irrecoverable) incurred by the Buyer provision, enactment or that Group Company in connection with the enforcement of the Seller’s Guarantor’s obligations under this Agreement.
14.7 The Seller’s Guarantor warrants to the Buyer that:
(a) it has the power to execute and deliver this Agreement and to perform its obligations under it and has taken all action necessary to authorise such execution and delivery and the performance of such obligations;
(b) this Agreement constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms;
(c) the execution and delivery by the Seller’s Guarantor of this Agreement and the performance of its obligations under it do not and will not violate or conflict with or constitute a default under any law, rule or regulation applicable to it, any provisions of its constitutional documents, any order or judgment of any court or other agency or government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; and
(d) all authorisations from, and all notices or filings with, any governmental or other authority that are necessary to enable the Seller’s Guarantor to execute, deliver and perform its obligations under this Agreement have been obtained or made (as the case may be) and are in full force and effect and all conditions of each such authorisation have been complied with;
(e) no order has been made and no resolution has been proposed or passed Applicable Law for the winding up time being in force relating to breach of duty, bankruptcy, insolvency, liquidation, administration or protection from creditors generally or for a provisional liquidator any other reason so that at any time after such avoidance, setting aside or order for refund the Buyers shall be entitled to be appointed in respect of exercise its rights under the Seller’s Guarantor and Sellers’ Guarantee as if no petition has such settlement or discharge had been presented for the purpose of winding up the Seller’s Guarantor;
(f) no administration order has been made in respect of the Seller’s Guarantor and no petition or other application to the court for such an order has been presented or made and no administrator has been appointed (or notice of intention so to appoint filed in court) in respect of the Seller’s Guarantor;
(g) no receiver (which expression shall include an administrative receiver) has been appointed in respect of the Seller’s Guarantor or in respect of all or any material part of the Seller’s Guarantor’s assets;
(h) no voluntary arrangement has been proposed under section 1 of the Insolvency Xxx 0000 in respect of the Seller’s Guarantor;
(i) no distress, execution or other process has been levied or threatened in respect of any of the Seller’s Guarantor’s assets;
(j) No event analogous to any of the circumstances mentioned in any of the foregoing sub-paragraphs 14.7(e) to 14.7(i) has occurred in relation to the Seller’s Guarantor outside Englandmade.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (Warner Music Group Corp.)
Seller’s Guarantee. 14.1 The In consideration of the Buyer entering into this Agreement, the Guarantor, at the request of the Seller’s Guarantor , hereby unconditionally and irrevocably:
(a) guarantees to the Buyer the due and punctual performance and observance by the Seller of all the Seller’s payment obligations contained in this Agreement and shall procure the punctual performance of all the Seller’s other obligations hereunder and the punctual discharge by the Seller of all the Seller’s liabilities (payments or otherwise) to the Buyer contained in this Agreement (the “Guaranteed Obligations”). If the Seller shall make default in the payment when due of all amounts any amount payable by to the Seller Buyer under or pursuant to this Agreement;
(b) undertakes to procure that the Seller will perform when due all its obligations under or pursuant to this Agreement;
(c) agrees that if and each time that the Seller fails to make any payment when it is due under or pursuant to this Agreement, the Seller’s Guarantor shall forthwith on demand (without requiring by the Buyer or any Group Company first to take steps against the Seller or any other person) unconditionally pay that amount to the Buyer as if it were in the principal obligor manner prescribed in respect of that amount; and
(d) this Agreement an amount equal to the amount payable by the Seller. As an independent and primary obligation, without prejudice to Clause 4.1 the Guarantor hereby unconditionally and irrevocably agrees as if it were the principal obligor to indemnify and keep indemnified the Buyer against all losses and damages sustained any losses, costs, claims, liabilities, damages, demands and expenses suffered or incurred by the Buyer or any Group Company flowing arising from any non-payment or default failure of any kind by the Seller under to comply with any of Guaranteed Obligations or pursuant to this Agreement.
14.2 The Seller’s Guarantor’s obligations under this clause will by reason of the Seller not be affected by:
(a) being at any time or indulgence granted totime, or composition withceasing to be, the Seller or any liable in respect of Guaranteed Obligations other person;
(b) any intermediate payment or settlement of account or by any change than in the constitution or control of, or the insolvency of, or bankruptcy, winding-up or analogous proceedings relating to the Seller;
(c) the taking, variation, renewal or release of, or neglect to perfect or enforce this agreement, or any right, guarantee, remedy or security from or against the Seller or any other person;
(d) any variation or change to accordance with the terms of this agreement; or
(e) any unenforceability or invalidity of any obligation of the Seller, so that Agreement. The guarantee and indemnity contained in this Agreement Clause 4.1 shall be construed as if there were no such unenforceability or invalidity; provided, however, neither the Buyer nor any member of the Buyer’s Group a continuing guarantee and indemnity and shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this Agreement.
14.3 Until all amounts which may be or become payable under this agreement have been irrevocably paid in full, the Seller’s Guarantor shall not as a result of this agreement or any payment or performance under this agreement be subrogated to any right or security of the Buyer or claim or prove in competition with the Buyer or any Group Company against the Seller or any other person or claim any right of contribution, set-off or indemnity.
14.4 The Seller’s Guarantor will not take or hold any security from the Seller in respect of this Agreement and any such security which is held in breach of this provision will be held by the Seller’s Guarantor in trust for the Buyer.
14.5 The provisions of this clause may with the prior written consent of the Buyer and, subject to paragraph (b) below, be enforced by any Group Company against the Seller’s Guarantor under the Contracts (Rights of Third Parties) Xxx 0000.
(a) No Group Company shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this agreement.
(b) The provisions of this clause may be varied or terminated by agreement between the Seller and the Buyer (and the Buyer may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this clause) without the consent of any Group Company.
14.6 The Seller’s Guarantor must reimburse the Buyer and each Group Company for all legal and other costs (including VAT to the extent irrecoverable) incurred by the Buyer or that Group Company in connection with the enforcement of the Seller’s Guarantor’s obligations under this Agreement.
14.7 The Seller’s Guarantor warrants to the Buyer that:
(a) it has the power to execute and deliver this Agreement and to perform its obligations under it and has taken all action necessary to authorise such execution and delivery and the performance of such obligations;
(b) this Agreement constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms;
(c) the execution and delivery by the Seller’s Guarantor of this Agreement and the performance of its obligations under it do not and will not violate or conflict with or constitute a default under any law, rule or regulation applicable to it, any provisions of its constitutional documents, any order or judgment of any court or other agency or government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; and
(d) all authorisations from, and all notices or filings with, any governmental or other authority that are necessary to enable the Seller’s Guarantor to execute, deliver and perform its obligations under this Agreement have been obtained or made (as the case may be) and are continue in full force and effect and until all conditions of each such authorisation have been complied with;
(e) no order has been made and no resolution has been proposed or passed for the winding up of or for a provisional liquidator to be appointed liabilities in respect of the Seller’s Guarantor Guaranteed Obligations, have been paid, discharged or satisfied in full and no petition has been presented for notwithstanding any insolvency of the purpose of winding up Seller or any change in the Seller’s Guarantor;
(f) no administration order has been made in respect status of the Seller’s . The Guarantor and no petition shall not be exonerated or discharged nor shall its liability be affected by any forbearance, whether as to payment, time, performance or otherwise howsoever, or by any other application indulgence being given to the court for such an order has been presented Seller or made and no administrator has been appointed (or notice of intention so to appoint filed in court) in respect by any variation of the Seller’s Guarantor;
(g) no receiver (which expression shall include an administrative receiver) has been appointed terms of this Agreement or by any act, thing, omission or means whatever which, but for this provision, might operate to exonerate or discharge the Guarantor from its obligations under the guarantee and indemnity contained in respect of the Seller’s Guarantor or in respect of all or any material part of the Seller’s Guarantor’s assets;
(h) no voluntary arrangement has been proposed under section 1 of the Insolvency Xxx 0000 in respect of the Seller’s Guarantor;
(i) no distress, execution or other process has been levied or threatened in respect of any of the Seller’s Guarantor’s assets;
(j) No event analogous to any of the circumstances mentioned in any of the foregoing sub-paragraphs 14.7(e) to 14.7(i) has occurred in relation to the Seller’s Guarantor outside Englandthis Clause 4.1.
Appears in 1 contract
Samples: Share Subscription and Purchase Agreement (Amarin Corp Plc\uk)
Seller’s Guarantee. 14.1 9.1 If the Sellers or either of them fail to comply with any of the provisions of this Agreement on the due date, then the Seller Guarantor guarantees that it shall (on demand by the Buyer) immediately perform and discharge the obligations of the Sellers under those provisions provided that (notwithstanding any other provision of this clause 9) the Seller Guarantor's liability under this clause 9 shall be no greater than the Sellers' liability under the terms of this Agreement.
9.2 The Seller’s Guarantor unconditionally and irrevocably:
(a) guarantees to Seller Guarantor's liability under clause 9.1 shall not be affected by any concession, time or indulgence granted by the Buyer the payment when due of all amounts payable to a Seller or by the Seller under any other dealing or pursuant thing (whether relating to this Agreement;
(b) undertakes to procure that the Seller will perform when due all its obligations under or pursuant to this Agreement;
(c) agrees that if and each time that the Seller fails to make a Seller, any payment when it is due under or pursuant to this Agreement, the Seller’s Guarantor shall on demand (without requiring the Buyer or any Group Company first to take steps against the Seller co-guarantor or any other person) pay which would, but for this clause 9.2, operate to discharge or reduce that amount liability.
9.3 If anything (including any legal limitation, disability or incapacity on the part of a Seller) causes any of the Sellers or any of their obligations under this Agreement and/or the guarantee set out in clause 9.1 to be or become invalid or unenforceable, then the Seller Guarantor shall perform and discharge all of the Sellers' obligations under this Agreement as if they were the primary obligations of the Seller Guarantor.
9.4 Subject always to the Buyer as if it were Seller Guarantor's liability not being any greater than the principal obligor in respect Sellers' liability under the terms of that amount; and
(d) agrees as if it were this Agreement, the principal obligor to Seller Guarantor shall indemnify and keep indemnified the Buyer against all losses any losses, liabilities, costs and damages sustained by expenses resulting from the Buyer or failure of the Sellers to observe any Group Company flowing from any non-payment or default of any kind by the Seller under or pursuant to provisions of this Agreement.
14.2 9.5 The Seller’s Guarantor’s Seller Guarantor shall make any payments due from it under this clause 9 in full, without any deduction or withholding in respect of any claim (whether by way of set-off, counterclaim or otherwise) asserted from time to time by the Sellers against the Buyer under this Agreement or in respect of any other matter or thing.
9.6 The Seller Guarantor shall not exercise any rights which it may have against either Seller arising from or otherwise relating to its guarantee under clause 9.1 or its other obligations under this clause will not be affected by:
(a) any time or indulgence granted to, or composition with, 9 unless and until all of the obligations of the Sellers and the Seller or any other person;
(b) any intermediate payment or settlement of account or by any change in the constitution or control of, or the insolvency of, or bankruptcy, winding-up or analogous proceedings relating to the Seller;
(c) the taking, variation, renewal or release of, or neglect to perfect or enforce this agreement, or any right, guarantee, remedy or security from or against the Seller or any other person;
(d) any variation or change to the terms of this agreement; or
(e) any unenforceability or invalidity of any obligation of the Seller, so that this Agreement shall be construed as if there were no such unenforceability or invalidity; provided, however, neither the Buyer nor any member of the Buyer’s Group shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this Agreement.
14.3 Until all amounts which may be or become payable under this agreement have been irrevocably paid in full, the Seller’s Guarantor shall not as a result of this agreement or any payment or performance under this agreement be subrogated to any right or security of the Buyer or claim or prove in competition with the Buyer or any Group Company against the Seller or any other person or claim any right of contribution, set-off or indemnity.
14.4 The Seller’s Guarantor will not take or hold any security from the Seller in respect of this Agreement and any such security which is held in breach of this provision will be held by the Seller’s Guarantor in trust for the Buyer.
14.5 The provisions of this clause may with the prior written consent of the Buyer and, subject to paragraph (b) below, be enforced by any Group Company against the Seller’s Guarantor under the Contracts (Rights of Third Parties) Xxx 0000.
(a) No Group Company shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this agreement.
(b) The provisions of this clause may be varied or terminated by agreement between the Seller and the Buyer (and the Buyer may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this clause) without the consent of any Group Company.
14.6 The Seller’s Guarantor must reimburse the Buyer and each Group Company for all legal and other costs (including VAT to the extent irrecoverable) incurred by the Buyer or that Group Company in connection with the enforcement of the Seller’s Guarantor’s obligations under this Agreement.
14.7 The Seller’s Guarantor warrants to the Buyer that:
(a) it has the power to execute and deliver this Agreement and to perform its obligations under it and has taken all action necessary to authorise such execution and delivery and the performance of such obligations;
(b) this Agreement constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms;
(c) the execution and delivery by the Seller’s Guarantor of this Agreement and the performance of its obligations under it do not and will not violate or conflict with or constitute a default under any law, rule or regulation applicable to it, any provisions of its constitutional documents, any order or judgment of any court or other agency or government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; and
(d) all authorisations from, and all notices or filings with, any governmental or other authority that are necessary to enable the Seller’s Guarantor to execute, deliver and perform its obligations under this Agreement have been obtained or made (as the case may be) performed and discharged.
9.7 The Seller Guarantor's obligations under this clause 9, including its guarantee under clause 9.1, are in full force unconditional and effect and all conditions of each such authorisation have been complied with;
(e) no order has been made and no resolution has been proposed or passed for the winding up of or for a provisional liquidator to be appointed in respect of the Seller’s Guarantor and no petition has been presented for the purpose of winding up the Seller’s Guarantor;
(f) no administration order has been made in respect of the Seller’s Guarantor and no petition or other application to the court for such an order has been presented or made and no administrator has been appointed (or notice of intention so to appoint filed in court) in respect of the Seller’s Guarantor;
(g) no receiver (which expression shall include an administrative receiver) has been appointed in respect of the Seller’s Guarantor or in respect of all or any material part of the Seller’s Guarantor’s assets;
(h) no voluntary arrangement has been proposed under section 1 of the Insolvency Xxx 0000 in respect of the Seller’s Guarantor;
(i) no distress, execution or other process has been levied or threatened in respect of any of the Seller’s Guarantor’s assets;
(j) No event analogous to any of the circumstances mentioned in any of the foregoing sub-paragraphs 14.7(e) to 14.7(i) has occurred in relation to the Seller’s Guarantor outside Englandirrevocable.
Appears in 1 contract
Seller’s Guarantee. 14.1 The 22.1 For good and valuable consideration, receipt whereof is hereby acknowledged by the Seller’s 's Guarantor, the Seller's Guarantor hereby irrevocably and unconditionally and irrevocably:
(a) guarantees to the Buyer the due and punctual payment when due of all amounts moneys and performance of all other obligations expressed to be payable or performed by BTL and/or the Seller under or pursuant to this Agreement;
(b) undertakes to procure that the Seller will perform when due all its obligations under or pursuant to this Agreement;
(c) agrees that if and each time that the Seller fails to make any payment when it is due under or pursuant to this Agreement, the Seller’s Guarantor shall on demand (without requiring the Buyer or any Group Company first to take steps against the Seller or any other person) pay that amount to the Buyer as if it were the principal obligor in respect of that amount; and
(d) agrees as if it were the principal obligor to indemnify the Buyer against all losses and damages sustained by the Buyer or any Group Company flowing from any non-payment or default of any kind by the Seller under or pursuant to this Agreement.
14.2 The Seller’s Guarantor’s obligations under this clause will not be affected by:
(a) any time or indulgence granted to, or composition with, the Seller or any other person;
(b) any intermediate payment or settlement of account or by any change in the constitution or control of, or the insolvency of, or bankruptcy, winding-up or analogous proceedings relating to the Seller;
(c) the taking, variation, renewal or release of, or neglect to perfect or enforce this agreement, or any right, guarantee, remedy or security from or against the Seller or any other person;
(d) any variation or change to the terms of this agreement; or
and any documents collateral thereto (etogether, the "Documents" and individually a "Document") and agrees that, if at any unenforceability time or invalidity of from time to time any obligation of the Seller, so that this Agreement shall moneys expressed to be construed as if there were no such unenforceability or invalidity; provided, however, neither the Buyer nor any member of the Buyer’s Group shall have any greater rights against the Seller’s Guarantor than they have against payable by BTL and/or the Seller under this Agreement.
14.3 Until all amounts which may be any Document (whether at stated date of payment, on demand or become payable under this agreement have been irrevocably otherwise) are not paid in fullon the due date therefor, the Seller’s Guarantor shall or if any of its other obligations are not as a result of this agreement or any payment or performance under this agreement be subrogated to any right or security of performed, it will forthwith upon demand therefor made by the Buyer or claim or prove upon it unconditionally pay in competition with the Buyer or any Group Company against manner required by the relevant Document the moneys the payment of which has not been made as aforesaid provided that demand has been made on the Seller or any other person or claim any right of contribution, set-off or indemnity.
14.4 The Seller’s Guarantor will not take or hold any security from the Seller in respect of this Agreement and any such security which is held in breach of this provision will be held by the Seller’s Guarantor in trust for the Buyer.
14.5 The provisions of this clause may with the prior written consent of the Buyer and, subject to paragraph (b) below, be enforced by any Group Company against the Seller’s Guarantor under the Contracts (Rights of Third Parties) Xxx 0000.
(a) No Group Company shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this agreement.
(b) The provisions of this clause may be varied or terminated by agreement between the Seller and the Buyer (and the Buyer may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this clause) without the consent of any Group Company.
14.6 The Seller’s Guarantor must reimburse the Buyer and each Group Company for all legal and other costs (including VAT to the extent irrecoverable) incurred by the Buyer or that Group Company in connection with the enforcement of the Seller’s Guarantor’s obligations under this Agreement.
14.7 The Seller’s Guarantor warrants to the Buyer that:
(a) it has the power to execute and deliver this Agreement and to perform its obligations under it and has taken all action necessary to authorise such execution and delivery and the performance of such obligations;
(b) this Agreement constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms;
(c) the execution and delivery by the Seller’s Guarantor of this Agreement and the performance of its obligations under it do not and will not violate or conflict with or constitute a default under any law, rule or regulation applicable to it, any provisions of its constitutional documents, any order or judgment of any court or other agency or government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; and
(d) all authorisations from, and all notices or filings with, any governmental or other authority that are necessary to enable the Seller’s Guarantor to execute, deliver and perform its obligations under this Agreement have been obtained or made BTL (as the case may be) and are such demand has not been complied with within fourteen days, to the intent that the amounts so payable shall be such amounts as will result in full force and effect and all conditions of each such authorisation person or persons receiving the same amounts as would have been complied with;received had such payments been duly made by BTL and/or the Seller in accordance with the terms of the relevant Document, or (as appropriate) procure the performance of the other obligations in question.
(e) no order 22.2 In addition to, but separate from, the obligations contained in Clause 22.1 above, the Seller's Guarantor hereby irrevocably and unconditionally agrees to indemnify the Buyer and to keep the Buyer indemnified against any loss of whatever kind resulting from the failure by BTL and/or the Seller to make any payment expressed to be due under the Documents when due or to perform any other obligation thereunder and to pay the amount of such loss whether or not the Buyer or any other person has attempted to enforce any rights against BTL and/or the Seller after a demand has been made and no resolution has not complied with within fourteen days. Without prejudice to the generality of the foregoing, such loss shall include all those amounts as shall not have been proposed paid as aforesaid and all costs and expenses (including actual legal fees and expenses) which the Buyer may incur in proceedings against BTL and/or the Seller.
22.3 The Seller's Guarantor shall not be exonerated or passed for the winding up discharged from any of its obligations under this clause 22, nor shall any of such obligations be in any way prejudiced or for a provisional liquidator affected, by:-
(a) any invalidity or unenforceability of any obligation expressed to be appointed assumed by BTL and/or the Seller under or in respect of the Seller’s Guarantor and no petition has been presented for the purpose of winding up the Seller’s Guarantor;
connection with any Document; or (fb) no administration order has been made in respect of the Seller’s Guarantor and no petition any variation or other application to the court for such an order has been presented amendment of, or made and no administrator has been appointed (waiver or notice of intention so to appoint filed in court) in respect of the Seller’s Guarantor;
(g) no receiver (which expression shall include an administrative receiver) has been appointed in respect of the Seller’s Guarantor release granted under or in respect of, any Document or any document referred to therein; or (c) time being given to BTL and/or the Seller or any other indulgence or concession to BTL and/or the Seller granted by the Buyer; or (d) the release of BTL and/or the Seller from any of its obligations under any Document or the taking, holding, varying, non-enforcement, non-perfection or release by the Buyer of any other security for all or any material part of the Seller’s Guarantor’s assets;
sums expressed to be payable by BTL and/or the Seller under any Document; or (he) no voluntary arrangement has been proposed under section 1 the liquidation, insolvency, examination, receivership or analogous process of, or any change in the status, function, control, ownership or financial condition of BTL and/or the Insolvency Xxx 0000 in respect of the Seller’s Guarantor;
(i) no distress, execution Seller or any other process has been levied person or threatened in respect of by any of the Seller’s Guarantor’s assets;
(j) No event analogous to any of the circumstances mentioned in any of the foregoing sub-paragraphs 14.7(e) to 14.7(i) has occurred in relation to the Seller’s Guarantor outside England.other event; or
Appears in 1 contract
Samples: Sale and Purchase Agreement (Baltimore Technologies PLC)
Seller’s Guarantee. 14.1 The Seller’s 13.1.1 In consideration of the Purchaser and each other Relevant Purchaser entering into this Agreement, the Seller Guarantor unconditionally and irrevocably:
(a) irrevocably guarantees to the Buyer Purchaser (to the payment when extent it is a beneficiary of an obligation of a Relevant Seller) and the other Relevant Purchasers the due and punctual performance and observance by each of the Relevant Sellers of all amounts payable by the Seller under or pursuant to this Agreement;
(b) undertakes to procure that the Seller will perform when due all its obligations under or pursuant to this Agreement;
(c) agrees that if their obligations, commitments, undertakings, covenants, warranties and each time that the Seller fails to make any payment when it is due indemnities under or pursuant to this Agreement, any Local Transfer Document and the Seller’s Tax Indemnity (“Sellers’ Guaranteed Obligations”) to the extent of any limit on the liability of the Seller and the other Relevant Sellers under this Agreement, any Local Transfer Document and the Tax Indemnity and agrees to indemnify the Purchaser and the other Relevant Purchasers against all reasonable costs (including legal costs) which the Purchaser or the other Relevant Purchasers may suffer or incur through or arising from the enforcement of this guarantee.
13.1.2 If and whenever any of the Relevant Sellers defaults for any reason whatsoever in the performance of any of the Sellers’ Guaranteed Obligations, the Seller Guarantor shall forthwith upon demand unconditionally perform (or procure the performance of) and satisfy (or procure the satisfaction of) the Sellers’ Guaranteed Obligations in regard to which such default has been made in the manner prescribed by this Agreement, any Local Transfer Document and the Tax Indemnity and so that the same benefits shall be conferred on demand (without requiring the Buyer Purchaser and the other Relevant Purchasers as they would have received if the Sellers’ Guaranteed Obligations had been duly performed and satisfied by the Relevant Sellers. The Seller Guarantor hereby waives any rights which it may have to require the Purchaser and/or the other Relevant Purchasers to proceed first against or any Group Company first claim payment from the Relevant Seller(s) to take steps against the intent that as between the Purchaser and/or the other Relevant Purchasers and the Seller or any other person) pay that amount to Guarantor the Buyer latter shall be liable as principal debtor as if it were has entered all undertakings, agreements and other obligations jointly and severally with the principal obligor in respect of that amount; and
(d) agrees as if it were the principal obligor to indemnify the Buyer against all losses and damages sustained by the Buyer or any Group Company flowing from any non-payment or default of any kind by the Seller under or pursuant to this AgreementRelevant Sellers.
14.2 The Seller’s Guarantor’s obligations under this clause will 13.1.3 This guarantee is to be a continuing security and accordingly is to remain in force until all Sellers’ Guaranteed Obligations shall have been performed or satisfied and shall not be satisfied, discharged or affected by:
(a) any time or indulgence granted to, or composition with, the Seller or any other person;
(b) any by an intermediate payment or settlement of account by, or by any change in the constitution or control of, or the insolvency of, of or bankruptcy, winding-up or analogous proceedings proceeding relating to, any Relevant Seller. This guarantee is in addition to the Seller;
(c) the taking, variation, renewal or release of, or neglect and without prejudice to perfect or enforce this agreement, or and not in substitution for any right, guarantee, remedy rights or security from which the Purchaser and the other Relevant Purchasers may now or against hereafter have or hold for the performance and observance of the Sellers’ Guaranteed Obligations.
13.1.4 As a separate and independent obligation, the Seller Guarantor agrees that any of the Sellers’ Guaranteed Obligations (including any monies payable) which may not be enforceable against or recoverable from any other person;
(d) any variation or change to of the terms of this agreement; or
(e) any unenforceability or invalidity Relevant Sellers by reason of any obligation of the Sellerlegal limitation, so that this Agreement shall be construed as if there were no such unenforceability disability or invalidity; provided, however, neither the Buyer nor any member of the Buyer’s Group shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this Agreement.
14.3 Until all amounts which may be or become payable under this agreement have been irrevocably paid in full, the Seller’s Guarantor shall not as a result of this agreement or any payment or performance under this agreement be subrogated to any right or security of the Buyer or claim or prove in competition with the Buyer or any Group Company against the Seller or any other person or claim any right of contribution, set-off or indemnity.
14.4 The Seller’s Guarantor will not take or hold any security from the Seller in respect of this Agreement and any such security which is held in breach of this provision will be held by the Seller’s Guarantor in trust for the Buyer.
14.5 The provisions of this clause may with the prior written consent of the Buyer and, subject to paragraph (b) below, be enforced by any Group Company against the Seller’s Guarantor under the Contracts (Rights of Third Parties) Xxx 0000.
(a) No Group Company shall have any greater rights against the Seller’s Guarantor than they have against the Seller under this agreement.
(b) The provisions of this clause may be varied or terminated by agreement between the Seller and the Buyer (and the Buyer may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this clause) without the consent of any Group Company.
14.6 The Seller’s Guarantor must reimburse the Buyer and each Group Company for all legal and other costs (including VAT to the extent irrecoverable) incurred by the Buyer or that Group Company in connection with the enforcement of the Seller’s Guarantor’s obligations under this Agreement.
14.7 The Seller’s Guarantor warrants to the Buyer that:
(a) it has the power to execute and deliver this Agreement and to perform its obligations under it and has taken all action necessary to authorise such execution and delivery and the performance of such obligations;
(b) this Agreement constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms;
(c) the execution and delivery by the Seller’s Guarantor of this Agreement and the performance of its obligations under it do not and will not violate or conflict with or constitute a default under any law, rule or regulation applicable to it, any provisions of its constitutional documents, any order or judgment of any court or other agency or government applicable to it or any of its assets or any contractual restriction binding incapacity on or affecting it or any of its assets; and
(d) all authorisations from, and all notices or filings with, any governmental or other authority that are necessary to enable the Seller’s Guarantor to execute, deliver and perform its obligations under this Agreement have been obtained or made (as the case may be) and are in full force and effect and all conditions of each such authorisation have been complied with;
(e) no order has been made and no resolution has been proposed or passed for the winding up of or for a provisional liquidator to be appointed in respect of the Seller’s Guarantor and no petition has been presented for the purpose of winding up the Seller’s Guarantor;
(f) no administration order has been made in respect of the Seller’s Guarantor and no petition or other application to the court for such an order has been presented or made and no administrator has been appointed (or notice of intention so to appoint filed in court) in respect of the Seller’s Guarantor;
(g) no receiver (which expression shall include an administrative receiver) has been appointed in respect of the Seller’s Guarantor or in respect of all or any material part of the Seller’s Guarantor’s assets;
(h) no voluntary arrangement has been proposed under section 1 of the Insolvency Xxx 0000 in respect of the Seller’s Guarantor;
(i) no distress, execution or other process has been levied or threatened in respect of any of the Seller’s Guarantor’s assets;Relevant Sellers or any other fact or circumstances (other than any limitation imposed by this Agreement or Local Transfer Document or the Tax Indemnity) shall nevertheless be enforceable against and recoverable from the Seller Guarantor as though the same had been incurred by the Seller Guarantor and the Seller Guarantor were the sole or principal obligor in respect thereof and shall be performed or paid by the Seller Guarantor on demand.
(j) No event analogous to any 13.1.5 The liability of the circumstances mentioned in any of the foregoing sub-paragraphs 14.7(e) to 14.7(i) has occurred in relation to the Seller’s Seller Guarantor outside England.under this Clause 13.1:
Appears in 1 contract
Samples: Share and Business Sale Agreement (Scotts Miracle-Gro Co)
