ALV » Topics » Guarantee

This excerpt taken from the ALV 10-K filed Feb 19, 2010.



2.01 Payment

In consideration of the credit established by the Bank under the Finance Contract, the Guarantor hereby guarantees the payment of all Guaranteed Sums. The Guarantor undertakes that, if the Borrower should fail to pay any Guaranteed Sum to the Bank, whether upon the normal due date, upon acceleration or otherwise unless such failure is caused by a technical or administrative error and payment is made within 3 (three) Business Days after the due date, the Guarantor shall pay the sum in question to the Bank as if it had been the principal obligor (“surety”), in the currency specified in the Finance Contract and to the account specified in the demand.

For the purposes of this Guarantee a “Guaranteed Sum” means any principal, interest, commission, indemnity, liquidated damages, charge, expense or other sum which is expressed to be payable from time to time by the Borrower to the Bank under or pursuant to the Finance Contract and any other sum due from time to time by the Borrower in connection with any advance or credit extended under the Finance Contract.

The Guarantor further agrees and undertakes to pay interest to the Bank at the rate and on the terms specified in the Finance Contract for payment of overdue sums on all sums demanded under this Guarantee from the date of the Bank’s demand until the date of receipt of such sum by the Bank.


2.02 Nature of the Guarantor’s Liability

The obligations of the Guarantor hereunder are those of a primary obligor and not merely those of a surety. They shall not be impaired or discharged by reason of:


  (a) illegality, invalidity or unenforceability in or of the terms of the Finance Contract or any other security for the Borrower’s obligations thereunder;


  (b) disability, incapacity or change in status or constitution of the Borrower, the Bank or any other party;


  (c) liquidation or insolvency of the Borrower or any other party;


  (d) time or other indulgence granted by the Bank or any arrangement entered into or composition accepted by the Bank, varying the rights of the Bank under the Finance Contract or any security arrangement;


  (e) forbearance or delay on the part of the Bank in asserting any of its rights against the Borrower under the Finance Contract; or


  (f) any circumstance, other than actual payment of a Guaranteed Sum, which might otherwise discharge or diminish the obligations of the Guarantor.



2.03 Indemnity

As a continuing obligation additional to and separate from those set out in Articles 2.01 and 2.02, and without prejudice to the validity or enforceability of those obligations, the Guarantor unconditionally and irrevocably undertakes that, if any Guaranteed Sum should not be recoverable from the Guarantor under Article 2.01 for whatsoever reason, and whether or not the reason may have been known to the Bank at any material time, the Guarantor shall, upon first written demand by the Bank, and as if it was a sole and independent obligor, compensate the Bank by way of a full indemnity for all loss resulting from the failure of the Borrower to make payment of any Guaranteed Sum in the amount and currency provided for by or pursuant to the Finance Contract, whether upon the normal due date, upon acceleration or otherwise.


2.04 Continuing Security

This Guarantee is a continuing Guarantee and shall endure until all Guaranteed Sums have been fully paid or discharged. No payment or discharge which may be avoided under any enactment relating to insolvency, no payment or discharge made or given which is subsequently avoided and no release, cancellation or any such discharge of this Guarantee given or made on the faith of any such payment or discharge shall constitute discharge of the Guarantor under this Guarantee or prejudice or affect the Bank’s right to recover from the Guarantor to the full extent of this Guarantee. The original(s) of this Deed of Guarantee and Indemnity which are in the possession of the Bank shall remain the property of the Bank after any release, cancellation or discharge of this Guarantee.


2.05 Application of Payments

Any money received in connection with this Guarantee may be placed by the Bank to the credit of a suspense account with a view to preserving the right of the Bank to prove for the whole of the claims against the Borrower or may be applied by the Bank in or towards satisfaction of such of the Guaranteed Sums as the Bank in its absolute discretion may from time to time determine; provided, however, that if any such money, being freely disposable by the Bank, is not applied towards satisfaction of the Guaranteed Sums for which payment of the money was made hereunder, the Guarantor’s responsibility in respect of the Guaranteed Sums shall be discharged to the extent of such payment.

For the avoidance of doubt, the Bank will not charge the Guarantor interest at the rate and on the terms specified in the Finance Contract for payment of overdue sums on any amount received in connection with this Guarantee, placed by the Bank to the credit of a suspense account, and which are applied towards satisfaction of the Guaranteed Sums.


2.06 Covenants of the Guarantor

The Guarantor agrees that until all the Guaranteed Sums have been fully paid or discharged:


  (a) it shall not seek to enforce any obligation owed to it by the Borrower which arises by virtue of the discharge by it of its obligations hereunder;


  (b) it shall pay to the Bank all dividends in liquidation or otherwise received by it from or for the account of the Borrower in respect of any obligation referred to in indent (a) above; the Bank shall apply such sums to reduce the outstanding Guaranteed Sums in such sequence as it may decide; and



  (c) it shall not exercise any right of subrogation to the rights of the Bank under the Finance Contract or any security granted in connection therewith.


2.07 Acknowledgement

The Guarantor acknowledges: (i) that it has entered into this Guarantee on the basis of its own assessment of the Borrower and any security provided, and (ii) that it has not been induced to enter into this Guarantee by any representation made by the Bank. The Bank is not obliged to report to the Guarantor on the financial position of the Borrower or on any security provided, if any. The Bank shall have no liability for granting or disbursing the Loan, for cancelling or not cancelling the credit or for demanding or not demanding prepayment under the Finance Contract.

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