Buyer Parent Guarantee. Buyer Parent hereby fully guarantees the due and prompt performance, payment and discharge when due of, agrees to cause each Buyer to perform when due, and shall be jointly and severally liable with each Buyer for the due and punctual performance, payment and discharge of, each and every obligation of each Buyer arising under this Agreement or any of the Transaction Documents (collectively, the “Buyer Guaranteed Obligations”), including the payment of the Purchase Price and each Buyer’s indemnification obligations under Section 8.2. Whenever this Agreement or any of the Transaction Documents requires any Buyer to take any action, such requirement shall be deemed to include an undertaking on the part of Buyer Parent to cause such Buyer to take such action. The Buyer Guaranteed Obligations are primary, absolute, unconditional and irrevocable, and such obligations shall continue in full force and effect until the payment and performance, as applicable, of all of the Buyer Guaranteed Obligations and are not conditioned upon any event or contingency or upon any attempt first to obtain payment from any Buyer under this Agreement or any of the Transaction Documents, or pursuit of any other right or remedy against any Buyer through the commencement of Legal Proceedings or otherwise. With respect to its obligations hereunder, Buyer Parent expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever. Buyer Parent acknowledges and agrees that its obligations hereunder shall continue in full force and effect, without notice from any other party or any Buyer or Parent in the event the obligations of any Buyer or Parent under this Agreement or any of the Transaction Documents are amended or in any way modified, and that the Buyer Guaranteed Obligations shall continue and shall apply in full to such amended obligations of such Buyer or Buyer Parent as though the amended terms had been part of this Agreement or any of the Transaction Documents, as applicable, from the original date of execution thereof. Buyer Parent waives any right to require that any resort be had by Parent (a) against any Buyer for any of the Buyer Guaranteed Obligations or (b) against any other right or remedy available to Parent by contract, applicable Law or otherwise. Without limiting the foregoing, Buyer Parent hereby waives and relinquishes all rights and remedies now or hereafter accorded by applicable Law to sureties and/or guarantors or any other accommodation parties, under any statutory provision, common law or any other provision of law, custom or practice, and agrees not to assert or take advantage of any such rights or remedies. In connection with the Buyer Guaranteed Obligations, Buyer Parent hereby represents and warrants to Parent that the value of the consideration received, and to be received, by Buyer Parent in connection with the transactions contemplated under the Agreement is worth at least as much as the liabilities and obligations of Buyer Parent under this Section 10.11, and that such liabilities and obligations are expected to benefit Buyer Parent either directly or indirectly.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Northstar Realty Finance Corp.), Asset Purchase Agreement (Inland American Real Estate Trust, Inc.)
Buyer Parent Guarantee. Buyer Parent hereby fully unconditionally and irrevocably guarantees to Seller punctual performance by the due Buyer and prompt performance, payment and discharge when due of, agrees to cause each Buyer to perform when due, and shall be jointly and severally liable with each Buyer for the due and punctual performance, payment and discharge of, each and every obligation of each Buyer arising under this Agreement or any of the Transaction Documents (collectively, the “Buyer Guaranteed Obligations”), including the payment of the Purchase Price and each Buyer’s indemnification obligations under Section 8.2. Whenever this Agreement or any of the Transaction Documents requires any Buyer to take any action, such requirement shall be deemed to include an undertaking on the part of Buyer Parent to cause such Buyer to take such action. The Buyer Guaranteed Obligations are primary, absolute, unconditional and irrevocable, and such obligations shall continue in full force and effect until the payment and performance, as applicable, its Affiliates of all of the obligations of Buyer Guaranteed Obligations and its Affiliates set forth in this Agreement and undertakes to Seller that (i) whenever Buyer or any of its Affiliates does not pay any amount when due under this Agreement, Buyer Parent shall immediately on first demand pay that amount as if it was the principal obligor and (ii) whenever the Buyer or any of its Affiliates fails to perform any other obligations under this Agreement, Buyer Parent shall immediately on demand perform (or procure performance of) and satisfy (or procure the satisfaction of) that obligation, so that the same benefits are not conditioned upon conferred on Seller as it would have received if such obligation had been performed and satisfied by Buyer or its applicable Affiliate. Buyer Parent undertakes to indemnify and hold Seller harmless from and against any event all damage, loss, liability and expense (including reasonable and documented expenses of investigation and reasonable and documented attorneys’ fees and expenses) suffered or contingency incurred by it as a result of the non-performance by Buyer or upon any attempt first to obtain payment from of its Affiliates of any Buyer of obligations under this Agreement in breach of this Agreement, to the same extent that Buyer or its Affiliates would be liable to Seller for such damage, loss, liability and expense under this Agreement, notwithstanding (a) any refusal or neglect to perfect, take up or enforce, any rights against Buyer or its Affiliates under this Agreement; (b) the insolvency (or similar proceedings) of the Transaction DocumentsBuyer or its Affiliates, any incapacity or pursuit lack of power, authority or legal personality of Buyer or its Affiliates or change in control, ownership or status of Buyer or its Affiliates; or (c) any illegality, invalidity or unenforceability of any other right or remedy against any Buyer through the commencement obligation of Legal Proceedings or otherwise. With respect to its obligations hereunder, Buyer Parent expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever. Buyer Parent acknowledges and agrees that its obligations hereunder shall continue in full force and effect, without notice from any other party or any Buyer or Parent in its Affiliates under this Agreement. The guarantee under this Section 7.06 is a continuing guarantee and will extend to the event the obligations ultimate balance of sums payable by Buyer or its Affiliates under this Agreement, regardless of any Buyer intermediate payment or Parent under this Agreement or any of the Transaction Documents are amended or in any way modified, and that the Buyer Guaranteed Obligations shall continue and shall apply in full to such amended obligations of such Buyer or Buyer Parent as though the amended terms had been part of this Agreement or any of the Transaction Documents, as applicable, from the original date of execution thereofdischarge. Buyer Parent waives any right which it may have to first require that any resort be had by Parent (a) Seller to proceed against any Buyer for any of the Buyer Guaranteed Obligations or (b) against any other right or remedy available to Parent by contract, applicable Law or otherwise. Without limiting the foregoing, Buyer Parent hereby waives and relinquishes all rights and remedies now or hereafter accorded by applicable Law to sureties and/or guarantors or any other accommodation parties, under any statutory provision, common law or any other provision of law, custom or practice, and agrees not to assert or take advantage of any such rights or remedies. In connection with the Buyer Guaranteed Obligations, Buyer Parent hereby represents and warrants to Parent that the value of the consideration received, and to be received, by Buyer Parent in connection with the transactions contemplated under the Agreement is worth at least as much as the liabilities and obligations of its Affiliates before claiming from Buyer Parent under this Section 10.11, and that such liabilities and obligations are expected to benefit Buyer Parent either directly or indirectly7.06.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Tessera Technologies Inc)
Buyer Parent Guarantee. (a) The Buyer Parent hereby fully guarantees represents and warrants that it is a corporation validly existing and in good standing under the due Laws of the Province of New Brunswick, Canada, and prompt performancehas the authority to execute and deliver this Agreement, payment and discharge when due of, agrees to cause each Buyer to perform when dueits obligations hereunder and to consummate the transactions contemplated hereby, which actions have been duly and shall be jointly and severally liable with each validly authorized by all necessary corporate action by the Buyer for Parent. No other corporate proceedings on the due and punctual performancepart of the Buyer Parent or any of its Affiliates are necessary to authorize the execution, payment and discharge of, each and every obligation delivery or performance of each Buyer arising under this Agreement or any to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Buyer Parent and, assuming due execution and delivery by each of the Transaction Documents other parties hereto, constitutes the legal, valid and binding obligation of the Buyer Parent, enforceable against the Buyer Parent in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (collectivelyregardless of whether considered in a proceeding in equity or at law).
(b) The Buyer Parent, as primary obligor and not merely as surety, hereby absolutely, unconditionally and irrevocably guarantees the full and timely payment and performance of all Liabilities (including indemnities, fees and Liabilities in respect of equitable relief) of the Buyer incurred under, arising out of or in connection with this Agreement, the Indemnification Agreements and the Transition Services Agreement, as from time to time amended, modified or supplemented in accordance with their terms (such liabilities, the “Buyer Parent Guaranteed Obligations”), including the payment . This is a guarantee of the Purchase Price and each Buyer’s indemnification obligations under Section 8.2. Whenever this Agreement or any of the Transaction Documents requires any Buyer to take any action, such requirement shall be deemed to include an undertaking on the part of Buyer Parent to cause such Buyer to take such action. The Buyer Guaranteed Obligations are primary, absolute, unconditional and irrevocable, and such obligations shall continue in full force and effect until the payment and performance, as applicable, and not of all collectability. This guarantee is a continuing guarantee and may not be revoked by the Buyer Parent. The obligations of the Buyer Guaranteed Obligations and are not conditioned upon any event or contingency or upon any attempt first to obtain payment from any Buyer under this Agreement or any of the Transaction Documents, or pursuit of any other right or remedy against any Buyer through the commencement of Legal Proceedings or otherwise. With respect to its obligations hereunder, Buyer Parent expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever. Buyer Parent acknowledges and agrees that its obligations hereunder shall continue in full force and effect, without notice from any other party or any Buyer or Parent in the event the obligations of any Buyer or Parent under this Agreement or any of the Transaction Documents are amended or in any way modified, and that the Buyer Guaranteed Obligations shall continue and shall apply in full to such amended obligations of such Buyer or Buyer Parent as though the amended terms had been part of this Agreement or any of the Transaction Documents, as applicable, from the original date of execution thereof. Buyer Parent waives any right to require that any resort be had by Parent (a) against any Buyer for any of the Buyer Guaranteed Obligations or (b) against any other right or remedy available to Parent by contract, applicable Law or otherwise. Without limiting the foregoing, Buyer Parent hereby waives and relinquishes all rights and remedies now or hereafter accorded by applicable Law to sureties and/or guarantors or any other accommodation parties, under any statutory provision, common law or any other provision of law, custom or practice, and agrees not to assert or take advantage of any such rights or remedies. In connection with the Buyer Guaranteed Obligations, Buyer Parent hereby represents and warrants to Parent that the value of the consideration received, and to be received, by Buyer Parent in connection with the transactions contemplated under the Agreement is worth at least as much as the liabilities and obligations of Buyer Parent under this Section 10.1111.22 are absolute and unconditional in respect of satisfying the Buyer Parent Guaranteed Obligations and shall be enforceable against the Buyer Parent to the same extent as if the Buyer Parent were the primary obligor (and not merely a surety) under this Agreement, the Indemnification Agreements and the Transition Services Agreement.
(c) The Buyer Parent hereby waives as to itself promptness, diligence, notice of the acceptance of this guarantee and of the Buyer Parent Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any Buyer Parent Guaranteed Obligations incurred, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, and all suretyship defenses (it being understood that such liabilities and obligations are expected to benefit nothing in this sentence shall be deemed a waiver by the Buyer Parent either directly of the obligation of any other party to deliver any notice expressly required by the terms of this Agreement, the Indemnification Agreements or indirectlythe Transition Services Agreement). The Buyer Parent agrees that its obligations under this Section 11.22 shall not be discharged except by complete performance or payment of the Buyer Parent Guaranteed Obligations and that its obligations under this Section 11.22 shall not be limited, impaired, released or discharged, in whole or in part, or otherwise affected by, and the Buyer Parent irrevocably waives, to the fullest extent permitted by law, any defenses to its obligations under this Section 11.22 arising under law or equity from, (i) the failure or delay on the part of the Seller to assert any claim or demand or to enforce any right or remedy against the Buyer; (ii) any change in the time, place or manner of payment of any of the Buyer Parent Guaranteed Obligations or any waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of this Agreement, the Indemnification Agreements or the Transition Services Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any of the Buyer Parent Guaranteed Obligations; (iii) any change in the corporate existence, structure or ownership of the Buyer Parent, the Buyer or any other Person interested in the transactions contemplated by this Agreement, the Indemnification Agreements or the Transition Services Agreement; (iv) the adequacy of any other means the Seller may have of obtaining payment related to any of the Buyer Parent Guaranteed Obligations, including pursuant to this Section 11.22; (v) any insolvency, bankruptcy, reorganization, 57 arrangement or other similar proceeding affecting the Buyer or the Buyer Parent or their respective assets or any resulting release or discharge of any Buyer Parent Guaranteed Obligations; (vi) the existence of any claim, setoff or other rights which the Buyer Parent may have at any time against the Buyer, any of the Buyer’s Subsidiaries or any other third party, whether in connection herewith or any unrelated transactions; (vii) the invalidity or unenforceability of this Agreement, the Indemnification Agreements or the Transition Services Agreement (or any provision of this Agreement, the Indemnification Agreements or the Transition Services Agreement) against the Buyer; (viii) any provision of applicable Law purporting to prohibit the payment by the Buyer of any of the Buyer Parent Guaranteed Obligations; (ix) any lack or inadequacy of consideration with respect to the Buyer Parent Guaranteed Obligations or the obligations of the Buyer Parent under this Section 11.22; (x) any lack of capacity, power or authority of the Buyer to enter into this Agreement, the Indemnification Agreements or the Transition Services Agreement or to incur any of the Buyer Parent Guaranteed Obligations; or (xi) any other act, omission or delay of any kind by the Buyer, the Buyer Parent, or any other Person, or any other setoff, defense, counterclaim or other circumstance whatsoever (in any case, whether based on contract, tort or any other theory), with respect to this Agreement, the Indemnification Agreements or the Transition Services Agreement, the transactions contemplated thereby or the Seller Parent Guaranteed Obligations which might, but for the provisions of this paragraph, constitute a legal or equitable discharge or defense of the Buyer Parent’s obligations under this Section 11.22 or of the Buyer Parent Guaranteed Obligations (other than the complete performance or payment of the Buyer Parent Guaranteed Obligations).
(d) If at any time payment under this Agreement, the Indemnification Agreements or the Transition Services Agreement is rescinded or must be otherwise restored or returned by the Seller for any reason whatsoever, including on account of a judicial, arbitral or administrative order relating to the Buyer or the Buyer Parent, the Buyer Parent obligations hereunder with respect to such payment shall be reinstated upon such restoration or return being made by the Seller, all as though such payment had not been made.
(e) The Buyer Parent acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by this Agreement, the Indemnification Agreements and the Transition Services Agreement.
(f) The Buyer Parent shall not make any claim for contribution from the Company or any of its Subsidiaries or any of their respective officers, directors, managers or employees with respect to any Buyer Parent Guaranteed Obligations, and the Buyer Parent hereby waives any such right of contribution from the Company, any of its Subsidiaries and any of their respective officers, directors, managers or employees it has or may have in the future.
(g) The Buyer Parent hereby expressly acknowledges and agrees to be bound by the following provisions of this Agreement: Section 5.4 (Financing), Section 6.9 (Financing), Section 11.2 (Amendment and Modification), Section 11.3 (Waiver; Extension), Section 11.4 (Notices), Section 11.5 (Interpretation), Section 11.6 (Entire Agreement), Section 11.7 (Parties in Interest), Section 11.8 (Governing Law), Section 11.9 (Submission to Jurisdiction), Section 11.11 (Personal Liability), Section 11.12 (Assignment; Successors), Section 11.13 (Enforcement), Section 11.14 (Currency), Section 11.15 (Severability), Section 11.16 (Waiver of Jury Trial), Section 11.17 (Counterparts), Section 11.18 (.pdf Signature), Section 11.19 (Legal Representation), Section 11.20 (No Presumption Against Drafting Party) and Section 11.22 (Buyer Parent Guarantee).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Williams Partners L.P.)
Buyer Parent Guarantee. As a material inducement to the Sellers to enter into this Agreement, and in return for the substantial direct and indirect benefits that Buyer Parent will realize from the Transactions, Buyer Parent hereby fully absolutely, unconditionally and irrevocably guarantees to the Sellers, as primary obligor and not merely as a surety, the due and prompt performancetimely payment, payment performance and discharge when due ofof all obligations of Buyer and its successors and permitted assigns, agrees under this Agreement, including any monetary payments to cause each be made by Buyer to perform when duein accordance with Section 7.2, and shall be jointly and severally liable with each Section 7.3 (including the Reverse Termination Payment Amounts) (in any case, as applicable, the “Buyer for Parent Guaranteed Obligations”). The guarantee contained in this Section 9.18 is a continuing guaranty of the due full and punctual performancedischarge and performance of the Buyer Parent Guaranteed Obligations, payment not of collection. Buyer Parent expressly waives promptness, diligence, notice of acceptance, presentment, demand or payment, and discharge ofall other notices of any kind, each and every obligation any requirement that any Person exhaust any right, remedy or power or proceed against Buyer (or any of each Buyer arising its successors or assigns) under this Agreement or against any of the Transaction Documents (collectivelyother Person under any other guaranty of, or security for, the “Buyer Parent Guaranteed Obligations”), including the payment of the Purchase Price and each Buyer’s indemnification obligations under Section 8.2. Whenever this Agreement If Buyer or any of its successors or permitted assigns default in the Transaction Documents requires any Buyer to take any action, such requirement shall be deemed to include an undertaking on timely discharge or performance of the part of Buyer Parent to cause Guaranteed Obligations, in whole or in part, Buyer Parent shall fully and punctually discharge and perform such Buyer to take such actionParent Guaranteed Obligations. The Buyer Guaranteed Obligations are primary, absolute, unconditional and irrevocable, and such obligations This guarantee shall continue remain in full force and effect until the payment and performance, as applicable, of all of the Buyer Guaranteed Obligations and are not conditioned upon any event or contingency or upon any attempt first to obtain payment from any Buyer under this Agreement or any of the Transaction Documents, or pursuit of any other right or remedy against any Buyer through the commencement of Legal Proceedings or otherwise. With respect to its obligations hereunder, Buyer Parent expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever. Buyer Parent acknowledges and agrees that its obligations hereunder shall continue in full force and effect, without notice from any other party or any Buyer or Parent in the event the obligations of any Buyer or Parent under this Agreement or any of the Transaction Documents are amended or in any way modified, and that the Buyer Guaranteed Obligations shall continue have been paid and shall apply performed in full to such amended obligations of such Buyer or Buyer Parent as though the amended terms had been part of this Agreement or any of the Transaction Documents, as applicable, from the original date of execution thereof. Buyer Parent waives any right to require that any resort be had by Parent (a) against any Buyer for any of the Buyer Guaranteed Obligations or (b) against any other right or remedy available to Parent by contract, applicable Law or otherwise. Without limiting the foregoing, Buyer Parent hereby waives and relinquishes all rights and remedies now or hereafter accorded by applicable Law to sureties and/or guarantors or any other accommodation parties, under any statutory provision, common law or any other provision of law, custom or practicefull, and agrees not to assert or take advantage of any such rights or remedies. In connection with the will be binding upon Buyer Guaranteed ObligationsParent, Buyer Parent hereby represents its successors and warrants to Parent that the value of the consideration received, and to be received, by Buyer Parent in connection with the transactions contemplated under the Agreement is worth at least as much as the liabilities and obligations of Buyer Parent under this Section 10.11, and that such liabilities and obligations are expected to benefit Buyer Parent either directly or indirectlypermitted assigns.
Appears in 1 contract
Buyer Parent Guarantee. Buyer Parent hereby fully guarantees the due and prompt performance, payment and discharge when due of, agrees to cause each Buyer to perform when due, and shall be jointly and severally liable with each Buyer for the due and punctual performance, payment and discharge of, each and every payment and indemnification obligation of each Buyer arising under this Agreement or any of the Transaction Documents Agreements (collectively, the “Buyer Guaranteed Obligations”), including the payment of the Purchase Price and each Buyer’s indemnification obligations under Section 8.2. Whenever this Agreement or any of the Transaction Documents requires any Buyer to take any action, such requirement shall be deemed to include an undertaking on the part of Buyer Parent to cause such Buyer to take such action7.2. The Buyer Guaranteed Obligations are primary, absolute, unconditional and irrevocable, and such obligations shall continue in full force and effect until the payment and performance, as applicable, of all of the Buyer Guaranteed Obligations and are not conditioned upon any event or contingency or upon any attempt first to obtain payment from any Buyer under this Agreement or any of the Transaction DocumentsAgreements, or pursuit of any other right or remedy against any Buyer through the commencement of Legal Proceedings or otherwise. With respect to its obligations hereunderunder this guarantee, Buyer Parent expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever. Buyer Parent acknowledges and agrees that its obligations hereunder under this guarantee shall continue in full force and effect, without notice from any other party or any Buyer or Parent in the event the obligations of any Buyer, Seller, or Buyer or Parent under this Agreement or any of the Transaction Documents Agreements are amended or in any way modified, and that the Buyer Guaranteed Obligations shall continue and shall apply in full to such amended obligations of such Buyer or Buyer Parent as though the amended terms had been part of this Agreement or any of the Transaction DocumentsAgreements, as applicable, from the original date of execution thereof. Buyer Parent waives any right to require that any resort be had by Parent Seller (a) against any Buyer for any of the Buyer Guaranteed Obligations or (b) against any other right or remedy available to Parent Seller by contract, applicable Law or otherwise. Without limiting the foregoing, Buyer Parent hereby waives and relinquishes all rights and remedies now or hereafter accorded by applicable Law to sureties and/or guarantors or any other accommodation parties, under any statutory provision, common law or any other provision of law, custom or practice, and agrees not to assert or take advantage of any such rights or remedies. In connection with the Buyer Guaranteed Obligations, Buyer Parent hereby represents and warrants to Parent Seller that the value of the consideration received, and to be received, by Buyer Parent in connection with the transactions contemplated under the Agreement is worth at least as much as the liabilities and obligations of Buyer Parent under this Section 10.118.9, and that such liabilities and obligations are expected to benefit Buyer Parent either directly or indirectly.
Appears in 1 contract
Buyer Parent Guarantee. (a) Buyer Parent hereby fully irrevocably, absolutely and unconditionally guarantees (i) the full and punctual payment of any amount or amounts due and prompt performancepayable by Buyer and Real Property Buyer under this Agreement, payment including, without limitation, amounts owed by Buyer or Real Property Buyer under Section 7.02 and discharge when due of, agrees to cause each Buyer to perform when due, Article II and shall be jointly Article VI hereof; and severally liable with each Buyer for (ii) the due and punctual performanceperformance of all covenants, payment agreements and discharge of, each obligations and every obligation satisfaction of each Buyer arising under this Agreement or any of the Transaction Documents (collectively, the “Buyer Guaranteed Obligations”), including the payment of the Purchase Price and each Buyer’s indemnification obligations under Section 8.2. Whenever this Agreement or any of the Transaction Documents requires any Buyer to take any action, such requirement shall be deemed to include an undertaking on the part all liabilities of Buyer Parent to cause such Buyer to take such action. The Buyer Guaranteed Obligations are primary, absolute, unconditional and irrevocable, and such obligations shall continue in full force and effect until the payment and performance, as applicable, of all of the Buyer Guaranteed Obligations and are not conditioned upon any event or contingency or upon any attempt first to obtain payment from any Real Property Buyer under this Agreement Agreement. Upon any failure by Buyer or Real Property Buyer to pay punctually any of the Transaction Documentssuch amount, perform any such covenant, agreement or obligation, or pursuit of satisfy any other right or remedy against any Buyer through the commencement of Legal Proceedings or otherwise. With respect to its obligations hereundersuch liability, Buyer Parent expressly waives diligence, presentment, shall forthwith on demand of paymentSeller pay the amount not so paid, protest perform or cause the performance of the covenant, agreement or obligation not performed, or satisfy or cause to be satisfied the unsatisfied liability; provided, however, that any and all notices whatsoever. Buyer Parent acknowledges and agrees that its obligations hereunder shall continue in full force and effect, without notice from any other party or any defenses and/or counterclaims available to Buyer or Parent in the event the obligations of any Real Property Buyer or Parent under this Agreement or any of the Transaction Documents are amended or in any way modified, and that the shall also be available to Buyer Guaranteed Obligations shall continue and shall apply in full to such amended obligations of such Buyer or Buyer Parent as though the amended terms had been part of this Agreement or any of the Transaction Documents, as applicable, from the original date of execution thereof. Buyer Parent waives any right to require that any resort be had by Parent (a) against any Buyer for any of the Buyer Guaranteed Obligations or Parent.
(b) against any other right or remedy available to Parent by contract, applicable Law or otherwise. Without limiting the foregoing, Buyer Parent hereby waives and relinquishes all rights and remedies now or hereafter accorded by applicable Law to sureties and/or guarantors or any other accommodation parties, under any statutory provision, common law or any other provision of law, custom or practice, and agrees not to assert or take advantage of any such rights or remedies. In connection with the Buyer Guaranteed Obligations, Buyer Parent hereby represents and warrants to Parent that the value of the consideration received, and to be received, by Buyer Parent in connection with the transactions contemplated under the Agreement is worth at least as much as the liabilities and The obligations of Buyer Parent under this Section 10.11Agreement shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of Buyer or Real Property Buyer, by operation of Law or otherwise, unless and that to the extent Seller consents to any such liabilities and obligations are expected extension, renewal, settlement, compromise, waiver or release;
(ii) any modification or amendment of or supplement to benefit this Agreement or any document entered into in connection herewith;
(iii) any change in the corporate existence, structure or ownership of Buyer or Real Property Buyer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting Buyer or Real Property Buyer or the assets of either or any resulting release or discharge of any obligation of Buyer or Real Property Buyer;
(iv) the existence of any claim, set-off or other right which Buyer Parent either directly may have at any time against Buyer or indirectlyReal Property Buyer; provided, that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim;
(v) any invalidity or unenforceability of this Agreement or any document entered into in connection herewith relating to or against Buyer or Real Property Buyer for any reason, or any provision of any legal requirement purporting to prohibit the performance by Buyer or Real Property Buyer of its obligations under this Agreement or such other document; or
(vi) any other act or omission to act or delay of any kind by Buyer or Real Property Buyer, Seller or any other Person or any other circumstance whatsoever which might, but for the provisions of this paragraph, constitute a legal or equitable discharge of Buyer Parent's obligations hereunder.
(c) Upon making any payment or undertaking any performance hereunder with respect to Buyer or Real Property Buyer, Buyer Parent shall be subrogated to the rights of the payee against Buyer or Real Property Buyer, as applicable, with respect to such payment or performance.
Appears in 1 contract
Buyer Parent Guarantee. Buyer Parent hereby fully guarantees to the due Seller Parties the full and prompt performance, payment and discharge when due of, agrees to cause each timely performance of all of the obligations of Buyer to perform when due, and shall be jointly and severally liable with each Buyer for the due and punctual performance, payment and discharge of, each and every obligation of each Buyer arising under this Agreement or any Agreement, including the payment obligations of the Transaction Documents Buyer pursuant to Section 2.03(a) (collectively, the “Buyer Guaranteed Obligations”). This is a guarantee of performance, including and not merely of collection, and Buyer Parent acknowledges and agrees that this guarantee is full and unconditional, and no amendment, modification, release or extinguishment of Buyer’s obligations or liabilities, whether by decree in any bankruptcy proceeding or otherwise, shall affect the payment continuing validity and enforceability of this guarantee. Buyer Parent hereby waives, for the benefit of the Purchase Price Seller Parties, (a) any right to require the Seller Parties, as a condition of performance by Buyer Parent, to proceed in any Action against Buyer or pursue any other remedies whatsoever and (b) to the fullest extent permitted by applicable Law, any defenses or benefits that may be derived from or afforded by any Law that limit the liability of or exonerate guarantors or sureties, other than defense of performance in full of the Guaranteed Obligations. Buyer Parent will reimburse the Seller Parties for all reasonable and documented out-of-pocket costs and expenses (including court and arbitration costs and reasonable attorneys’ fees) incurred by the Seller Parties in connection with the enforcement of their rights under this Section 11.15. If all or any part of any payment to or for the benefit of any Seller Party in respect of a Guaranteed Obligation is invalidated, declared to be fraudulent or preferential or set aside and, in each Buyer’s indemnification obligations under Section 8.2such case, required for any reason to be repaid or paid to a trustee, receiver or other third Person, the Guaranteed Obligations that otherwise would have been satisfied by that payment or partial payment will be revived and will continue in full force and effect as if that payment had not been made. Whenever Buyer Parent understands and acknowledges that the Seller Parties are relying on this guarantee and the representations and warranties set forth in the immediately following sentence in entering into this Agreement. Buyer Parent hereby represents and warrants that (i) it has full power and authority to execute and deliver this Agreement (solely for purposes of this Section 11.15), to carry out its obligations hereunder and make any payments required to be made hereby, (ii) the execution and delivery by Buyer Parent of this Agreement (solely for purposes of this Section 11.15), and the performance by Buyer Parent of its obligations hereunder, have been duly authorized by all requisite corporate or any of the Transaction Documents requires any Buyer to take any action, such requirement shall be deemed to include an undertaking other organizational action on the part of Buyer Parent to cause such Buyer to take such action. The Buyer Guaranteed Obligations are primary, absolute, unconditional and irrevocable, and such obligations shall continue in full force and effect until the payment and performance, as applicable, of all of the Buyer Guaranteed Obligations and are not conditioned upon any event or contingency or upon any attempt first to obtain payment from any Buyer under (iii) this Agreement or any of the Transaction Documents, or pursuit of any other right or remedy against any Buyer through the commencement of Legal Proceedings or otherwise. With respect to its obligations hereunder, Buyer Parent expressly waives diligence, presentment, demand of payment, protest has been duly executed and all notices whatsoever. Buyer Parent acknowledges and agrees that its obligations hereunder shall continue in full force and effect, without notice from any other party or any Buyer or Parent in the event the obligations of any Buyer or Parent under this Agreement or any of the Transaction Documents are amended or in any way modified, and that the Buyer Guaranteed Obligations shall continue and shall apply in full to such amended obligations of such Buyer or Buyer Parent as though the amended terms had been part of this Agreement or any of the Transaction Documents, as applicable, from the original date of execution thereof. Buyer Parent waives any right to require that any resort be had by Parent (a) against any Buyer for any of the Buyer Guaranteed Obligations or (b) against any other right or remedy available to Parent by contract, applicable Law or otherwise. Without limiting the foregoing, Buyer Parent hereby waives and relinquishes all rights and remedies now or hereafter accorded by applicable Law to sureties and/or guarantors or any other accommodation parties, under any statutory provision, common law or any other provision of law, custom or practice, and agrees not to assert or take advantage of any such rights or remedies. In connection with the Buyer Guaranteed Obligations, Buyer Parent hereby represents and warrants to Parent that the value of the consideration received, and to be received, delivered by Buyer Parent (solely for purposes of this Section 11.15), and constitutes a legal, valid and binding obligation of Buyer Parent, enforceable against Buyer Parent in connection accordance with the transactions contemplated under the Agreement is worth at least as much as the liabilities its terms. The foregoing representations and obligations warranties of Buyer Parent under this Section 10.11, shall survive in perpetuity and that such liabilities and obligations are expected to benefit Buyer Parent either directly or indirectlyshall not terminate.
Appears in 1 contract
Samples: Stock Purchase Agreement (American Eagle Outfitters Inc)
Buyer Parent Guarantee. (a) Buyer Parent hereby fully irrevocably, absolutely and unconditionally guarantees to the due Sellers the prompt, complete and prompt full performance, payment and discharge when due of, agrees to cause each Buyer to perform when due, of all of Buyer’s covenants and shall be jointly and severally liable with each Buyer for the due and punctual performance, payment and discharge of, each and every obligation of each Buyer arising obligations under this Agreement or any and the Ancillary Agreements, including without limitation Buyer’s obligation in connection with the delivery of the Transaction Documents (collectivelyDeposit Amount, the “Buyer Guaranteed Obligations”), including Share Consideration to the payment of the Purchase Price Sellers and each Buyer’s indemnification obligations under in accordance with Section 8.27, when the same shall become due and payable in accordance with the terms of this Agreement. Whenever this Agreement or any of the Transaction Documents requires any Buyer to take any action, such requirement This guaranty shall be deemed to include an undertaking on the part of Buyer Parent to cause such Buyer to take such action. The Buyer Guaranteed Obligations are primary, absolute, unconditional a continuing guaranty and irrevocable, and such obligations shall continue remain in full force and effect until the payment until, and performance, as applicable, of all of the Buyer Guaranteed Obligations and are not conditioned upon any event or contingency or upon any attempt first to obtain payment from any Buyer Parent’s Liability under this Agreement or any of the Transaction Documents, or pursuit guaranty shall terminate in respect of any other right covenant or remedy against any obligation of Buyer through upon, the commencement termination of Legal Proceedings such covenant or otherwise. With respect to its obligations hereunderobligation of Buyer pursuant to, Buyer Parent expressly waives diligenceand in accordance with, presentment, demand of payment, protest and all notices whatsoeverthis Agreement. Buyer Parent acknowledges and agrees that its obligations hereunder under this Section 5.10 shall continue not be released or discharged in full force whole or in part by the insolvency, bankruptcy, liquidation, termination, dissolution, merger, consolidation or other business combination of Buyer. The guaranty contemplated in this Section 5.10 shall apply to any obligation of Buyer hereunder, regardless of whether Buyer Parent is specifically cited herein as being a party to such obligation. Buyer Parent shall be liable as principal debtor and effect, without notice from any other party or any Buyer or Parent in not solely as surety with respect to the event performance of the obligations of guaranteed hereunder. Buyer Parent shall be entitled to offset against its obligations pursuant to this guarantee any amounts to which Buyer or Parent may be entitled under this Agreement provided that such amounts must first be (i) agreed to in writing by Sellers, (ii) determined to be owing pursuant to a final and binding order or any judgment of the Transaction Documents are amended or in any way modified, and that the Buyer Guaranteed Obligations shall continue and shall apply in full to such amended obligations a Governmental Authority of such Buyer or Buyer Parent as though the amended terms had been part of this Agreement or any of the Transaction Documents, as applicable, from the original date of execution thereof. Buyer Parent waives any right to require that any resort be had by Parent (a) against any Buyer for any of the Buyer Guaranteed Obligations competent jurisdiction or (biii) determined to be owing pursuant to a final and binding determination or award of an arbitration or like panel. The Sellers shall not be bound to exhaust their recourse against any other right or remedy available to Parent by contract, applicable Law or otherwise. Without limiting the foregoing, Buyer Parent hereby waives and relinquishes all rights and remedies now or hereafter accorded by applicable Law to sureties and/or guarantors or any other accommodation parties, Person before being entitled to payment or other recourse under any statutory provision, common law or any other provision of law, custom or practice, and agrees not to assert or take advantage of any such rights or remedies. In connection with the Buyer Guaranteed Obligations, Buyer Parent hereby represents and warrants to Parent that the value of the consideration received, and to be received, guarantee provided by Buyer Parent in connection with the transactions contemplated under the Agreement is worth at least as much as the liabilities and obligations of Buyer Parent under this Section 10.11, and that such liabilities and obligations are expected to benefit Buyer Parent either directly or indirectlyherein.
Appears in 1 contract
Samples: Asset Purchase Agreement
Buyer Parent Guarantee. (a) Buyer Parent hereby fully irrevocably, absolutely and unconditionally guarantees (i) the full and punctual payment of any amount or amounts due and prompt performancepayable by Buyer under this Agreement, payment including those contained in ARTICLE II and discharge when due of, agrees to cause each Buyer to perform when dueARTICLE VII, and shall be jointly and severally liable with under each other Transaction Document to which Buyer for the due and punctual performance, payment and discharge of, each and every obligation of each Buyer arising under this Agreement or any of the Transaction Documents (collectively, the “Buyer Guaranteed Obligations”), including the payment of the Purchase Price and each Buyer’s indemnification obligations under Section 8.2. Whenever this Agreement or any of the Transaction Documents requires any Buyer to take any action, such requirement shall be deemed to include an undertaking on the part of Buyer Parent to cause such Buyer to take such action. The Buyer Guaranteed Obligations are primary, absolute, unconditional and irrevocableis a party, and such obligations shall continue in full force (ii) the timely satisfaction and effect until the payment and performance, as applicable, performance of all of the Buyer Guaranteed Obligations Buyer’s covenants, agreements and are not conditioned upon any event or contingency or upon any attempt first to obtain payment from any Buyer under obligations contained in this Agreement or and each other Transaction Document to which Buyer is a party. Upon any of failure by Buyer to pay punctually any such amount referred to in the Transaction Documents, or pursuit of any other right or remedy against any Buyer through the commencement of Legal Proceedings or otherwise. With respect to its obligations hereunderforegoing clause (i), Buyer Parent expressly waives diligence, presentment, shall forthwith on demand of payment, protest Seller pay the amount not so paid; provided however that any and all notices whatsoever. defenses or counterclaims available to Buyer Parent acknowledges and agrees that its obligations hereunder shall continue in full force and effect, without notice from any other party or any also be available to Buyer or Parent in the event the obligations of any Buyer or Parent under this Agreement or any of the Transaction Documents are amended or in any way modified, and that the Buyer Guaranteed Obligations shall continue and shall apply in full to such amended obligations of such Buyer or Buyer Parent as though the amended terms had been part of this Agreement or any of the Transaction Documents, as applicable, from the original date of execution thereof. Buyer Parent waives any right to require that any resort be had by Parent (a) against any Buyer for any of the Buyer Guaranteed Obligations or Parent.
(b) against any other right or remedy available to Parent by contract, applicable Law or otherwise. Without limiting the foregoing, Buyer Parent hereby waives and relinquishes all rights and remedies now or hereafter accorded by applicable Law to sureties and/or guarantors or any other accommodation parties, under any statutory provision, common law or any other provision of law, custom or practice, and agrees not to assert or take advantage of any such rights or remedies. In connection with the Buyer Guaranteed Obligations, Buyer Parent hereby represents and warrants to Parent that the value of the consideration received, and to be received, by Buyer Parent in connection with the transactions contemplated under the Agreement is worth at least as much as the liabilities and The obligations of Buyer Parent under this Section 10.11Agreement shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of Buyer, by operation of Law or otherwise, unless and that to the extent Seller consents to any such liabilities and obligations are expected extension, renewal, settlement, compromise, waiver or release;
(ii) any modification or amendment of or supplement to benefit this Agreement or any Transaction Document;
(iii) any change in the corporate existence, structure or ownership of Buyer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting Buyer or its assets or any resulting release or discharge of any obligation of Buyer;
(iv) the existence of any claim, set-off or other right which Buyer Parent either directly may have at any time against Buyer; provided, that nothing herein shall prevent the assertion of any such claim by separate suit or indirectlycompulsory counterclaim;
(v) any invalidity or unenforceability of this Agreement or any document entered into in connection herewith relating to or against Buyer for any reason, or any provision of any legal requirement purporting to prohibit the performance by Buyer of its obligations under this Agreement or such other document; or
(vi) any other act or omission to act or delay of any kind by Buyer, Seller or any other Person or any other circumstance whatsoever which might, but for the provisions of this paragraph, constitute a legal or equitable discharge of Buyer Parent’s obligations hereunder.
(c) Upon making any payment hereunder with respect to Buyer, Buyer Parent shall be subrogated to the rights of the payee against Buyer with respect to such payment.
Appears in 1 contract
Buyer Parent Guarantee. Buyer Parent hereby fully unconditionally guarantees the due and prompt performance, payment and discharge when due of, agrees to cause each Buyer to perform when due, and shall be jointly and severally liable with each Buyer for the due and punctual performance, payment and discharge of, each and every obligation of each Buyer arising under this Agreement or any of the Transaction Documents (collectively, the “Buyer Guaranteed ObligationsGuaranty”), including ) to the Company Securityholders the prompt and complete payment of the Purchase Price and each the prompt and complete performance of all of Buyer’s indemnification obligations under Section 8.2. Whenever this Agreement or any of (the Transaction Documents requires any “Buyer’s Obligations”). This Buyer to take any action, such requirement shall be deemed to include Guaranty is an undertaking on the part of Buyer Parent to cause such Buyer to take such action. The Buyer Guaranteed Obligations are primary, absolute, unconditional and irrevocable, unconditional, present and such obligations continuing guaranty of payment and performance, and it shall continue remain in full force and effect until the payment and performance, as applicable, of all without regard to any of the Buyer Guaranteed following: (a) any amendment or modification of or addition or supplement to any of Buyer’s Obligations and are not conditioned upon or any event or contingency or upon agreement executed in connection therewith; (b) any attempt first to obtain payment from any default by Buyer under Buyer’s Obligations; (c) any exercise or nonexercise of any right, remedy, power or privilege in respect of this Agreement Buyer Guaranty or any of Buyer’s Obligations; (d) any transfer of the Transaction Documentsassets of Buyer or any of its Affiliates to, or pursuit any consolidation or merger of Buyer or any of its Affiliates with or into, any other right Person; or remedy against (e) any bankruptcy, insolvency, reorganization or similar proceeding involving or affecting Buyer through the commencement or any of Legal Proceedings or otherwise. With respect to its obligations hereunder, Buyer Parent expressly waives diligence, presentment, demand of payment, protest and all notices whatsoeverAffiliates. Buyer Parent acknowledges and agrees that its obligations hereunder shall continue in full force and effect, without notice from any other party or any Buyer or Parent in the event the obligations of any Buyer or Parent under this Agreement or any of the Transaction Documents are amended or in any way modified, and that the Buyer Guaranteed Obligations shall continue and shall apply in full to such amended obligations of such Buyer or Buyer Parent as though the amended terms had been part of this Agreement or any of the Transaction Documents, as applicable, from the original date of execution thereof. Buyer Parent hereby waives any right to require the Company Securityholders, as a condition of payment or performance by Buyer Parent hereunder, to proceed against Buyer or any other Person or to pursue any other remedy or enforce any other right. Buyer Parent unconditionally waives diligence, demand or notice of any kind whatsoever with respect to this Buyer Guaranty or Buyer’s Obligations or with respect to any condition or circumstance whatsoever that any resort be had by Parent (a) might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety or that might otherwise limit recourse against any Buyer for any Parent. No failure or delay on the part of the Company or any Company Securityholder, in exercising any right under or with respect to this Buyer Guaranteed Obligations Guaranty shall operate as a waiver thereof, nor shall any single or (b) against partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right of the Company Securityholders under or remedy available with respect to Parent by contract, applicable Law this Buyer Guaranty or otherwisethis Agreement. Without limiting the foregoing, Buyer Parent hereby waives and relinquishes shall be afforded all rights and remedies now or hereafter accorded by applicable Law to sureties and/or guarantors or any other accommodation parties, under any statutory provision, common law or any other provision of law, custom or practice, and agrees not to assert or take advantage of any such rights or remedies. In connection with the Buyer Guaranteed Obligations, Buyer Parent hereby represents and warrants to Parent that the value of the consideration receivedsame rights, protections, limitations and to be received, by defenses as Buyer Parent in connection with the transactions contemplated under the Agreement is worth at least as much as the liabilities and obligations of Buyer Parent under this Section 10.11, and that such liabilities and obligations are expected Agreement with respect to benefit Buyer Parent either directly or indirectlyBuyer’s Obligations.
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Buyer Parent Guarantee. Notwithstanding anything to the contrary in this Agreement, Buyer Parent hereby fully guarantees the due and prompt performance, payment and discharge when due of, agrees to cause each Buyer to perform when due, guarantee in full all duties and shall be jointly and severally liable with each Buyer for obligations of Buyers in this Agreement (including the due and punctual performance, payment and discharge of, each and every obligation indemnification obligations of each Buyer arising Buyers under this Article 8, on the terms and subject to the conditions, limitations and other provisions set forth in this Article 8 with respect to such indemnification obligations of Buyers) and all duties and obligations of Buyers in the Sellers Note and the Security Agreement or any of the Transaction Documents (collectively, the “Guaranteed Buyer Guaranteed Obligations”), including the payment of the Purchase Price and each Buyer’s indemnification obligations under Section 8.2. Whenever this Agreement or any of the Transaction Documents requires any Buyer to take any action, such requirement shall be deemed to include an undertaking on the part of Buyer Parent to cause such Buyer to take such action. The Buyer Guaranteed Obligations are primary, absolute, unconditional and irrevocable, and such obligations shall continue in full force and effect until the payment and performance, as applicable, of all of the Buyer Guaranteed Obligations and are not conditioned upon any event or contingency or upon any attempt first to obtain payment from any Buyer under this Agreement or any of the Transaction Documents, or pursuit of any other right or remedy against any Buyer through the commencement of Legal Proceedings or otherwise. With respect to its obligations hereunder, Buyer Parent expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever. Buyer Parent acknowledges and agrees that its obligations hereunder shall continue in full force and effect, without notice from any other party or any Buyer or Parent in the event the obligations of any Buyer or Parent under this Agreement or any of the Transaction Documents are amended or in any way modified, and that the Buyer Guaranteed Obligations shall continue and shall apply in full to such amended obligations of such Buyer or Buyer Parent as though the amended terms had been part of this Agreement or any of the Transaction Documents, as applicable, from the original date of execution thereof. Buyer Parent waives any right to require that any resort be had by Parent (a) against any Buyer for any of the Buyer Guaranteed Obligations or (b) against any other right or remedy available to Parent by contract, applicable Law or otherwise. Without limiting the foregoing, Buyer Parent hereby waives and relinquishes all rights and remedies now or hereafter accorded by applicable Law to sureties and/or guarantors or any other accommodation parties, under any statutory provision, common law or any other provision of law, custom or practice, and agrees not to assert or take advantage of any such rights or remedies. In connection with the Buyer Guaranteed Obligations, Buyer Parent hereby represents and warrants to Parent that the value of the consideration received, and to be received, by Buyer Parent in connection with the transactions contemplated under the Agreement is worth at least as much as the liabilities and obligations of Buyer Parent under this Section 10.11, 8.08 shall constitute a present and that such liabilities continuing guaranty of payment and obligations are expected to benefit performance and not merely of collectability. Buyer Parent either directly agrees that the Guaranteed Buyer Obligations will not be discharged except by complete performance or indirectlypayment of such Guaranteed Buyer Obligations and will not be discharged, affected, or impaired in any way, or subject to any defense, set-off, deduction, or counterclaim whatsoever, by reason of: (i) any failure on the part of any of the Sellers or any of their respective Affiliates and Representatives to timely assert any claim or demand or to enforce any right or remedy against any Buyer; (ii) any change in the time (including any extension of the time), place or manner of payment or performance of any of the Guaranteed Buyer Obligations or any amendment or modification to, or waiver under, this Agreement, the Sellers Note or the Security Agreement; (iii) any discharge of any obligation of any of the Sellers arising out of any applicable Action seeking the application of bankruptcy, moratorium and other laws affecting creditors’ rights generally and as limited by the availability of specific performance and the application of equitable principles, against any Buyer; (iv) any change in the corporate existence, structure, or ownership of any Buyer, Buyer Parent or any other Person interested in the transactions contemplated by this Agreement, the Sellers Note or the Security Agreement; or (v) the adequacy of any other means any of the Sellers may have of obtaining payment or performance of any of the Guaranteed Buyer Obligations.
Appears in 1 contract
Buyer Parent Guarantee. Buyer Parent hereby fully guarantees the due unconditionally, absolutely and prompt performanceirrevocably guarantees, payment undertakes and discharge when due of, agrees promises to cause each Buyer to fully and promptly pay, perform when dueand observe all of Buyer’s obligations under, and shall be jointly and severally liable with each Buyer for the due and punctual performancerespect to, payment and discharge of, each and every obligation in connection with or otherwise arising out of each Buyer arising under or relating to this Agreement or any of the Transaction Documents (collectively, the “Buyer Guaranteed Parent Obligations”), whether according to the present terms hereof, or pursuant to any change in the terms, covenants and conditions hereof at any time hereafter made or granted, including the payment of the Purchase Price and each Buyer’s indemnification obligations under Section 8.2. Whenever pursuant to any amendments, waivers, extensions or renewals affecting this Agreement or any of and the Transaction Documents requires any Buyer to take any action, such requirement shall be deemed to include an undertaking on the part of Buyer Parent to cause such Buyer to take such actiontransactions contemplated hereby. The Buyer Guaranteed Obligations are primary, absolute, unconditional and irrevocable, and such obligations shall continue in full force and effect until the payment and performance, as applicable, of all of the Buyer Guaranteed Obligations and are not conditioned upon any event or contingency or upon any attempt first to obtain payment from any Buyer under this Agreement or any of the Transaction Documents, or pursuit of any other right or remedy against any Buyer through the commencement of Legal Proceedings or otherwise. With respect to its obligations hereunder, Buyer Parent expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever. Buyer Parent acknowledges and agrees that its obligations hereunder shall continue in full force and effect, without notice from any other party or any Buyer or Parent in In the event the obligations of any that Buyer or Parent under this Agreement or any of the Transaction Documents are amended or fails in any way modifiedmanner whatsoever to pay, and that the Buyer Guaranteed Obligations shall continue and shall apply in full to such amended obligations of such Buyer perform or Buyer Parent as though the amended terms had been part of this Agreement or any of the Transaction Documents, as applicable, from the original date of execution thereof. Buyer Parent waives any right to require that any resort be had by Parent (a) against any Buyer for observe any of the Buyer Guaranteed Obligations or (b) against any other right or remedy available to Parent by contract, applicable Law or otherwise. Without limiting the foregoing, Buyer Parent hereby waives and relinquishes all rights and remedies now or hereafter accorded by applicable Law to sureties and/or guarantors or any other accommodation parties, under any statutory provision, common law or any other provision of law, custom or practice, and agrees not to assert or take advantage of any such rights or remedies. In connection with the Buyer Guaranteed Obligations, Buyer Parent hereby represents will itself duly and warrants to promptly pay, perform or observe, as the case may be, such Buyer Parent that Obligations, or cause the value of the consideration received, and same to be receivedduly and promptly paid, by performed or observed, in each case as if Buyer Parent were itself Buyer with respect to such Buyer Parent Obligations. In regards to monetary obligations, Buyer Parent agrees that its guarantee under this Section 11.13 constitutes a guarantee of payment when due and not of collection. Notwithstanding anything in connection with this Section 11.13 to the transactions contemplated under the Agreement is worth at least as much as the liabilities and contrary, Seller may proceed to enforce this Section 11.13 against Buyer Parent without first pursuing or exhausting any right or remedy that Seller or any of its successors or assigns may have against Buyer, any of its successors or assigns (or any Affiliates thereof) or any other Person. The obligations of Buyer Parent under this Section 10.1111.13 shall be valid and enforceable and, and that such liabilities and obligations are expected to benefit the fullest extent permitted by Applicable Law, Buyer Parent either directly waives (i) any direct or indirectlyindirect defense based on a lack of power or authority by Buyer to execute, deliver or perform this Agreement and (ii) any other legal or equitable defense available to a guarantor under Applicable Law. Any payment by Buyer Parent pursuant to this Section 11.13 will, to the extent of actual receipt by Seller of such payment as it relates to any Buyer Parent Obligation under this Agreement, discharge such Buyer Parent Obligation of Buyer to Seller under this Agreement. Buyer Parent agrees that its guarantee under this Section 11.13 shall continue to be effective or be reinstated, as the case may be, if at any time full or partial payment of any Buyer Parent Obligation is rescinded or must otherwise be restored upon the insolvency, bankruptcy or reorganization of Buyer or otherwise. Buyer Parent agrees that it shall have no right of subrogation, contribution or indemnity with respect to payments made under this Section 11.13 until such time as all Buyer Parent Obligations have been paid in full. Notwithstanding the provisions of Section 11.1, Buyer Parent agrees to pay on demand all reasonable, documented out-of-pocket fees and expenses of Buyer (including the reasonable, documented fees and expenses of its counsel) for the protection or enforcement of the rights of Seller against Buyer Parent under this Section 11.13.
Appears in 1 contract
Buyer Parent Guarantee. Buyer Parent Parent, intending to be legally bound, hereby fully irrevocably guarantees (a) prior to and at the due Closing, the full and prompt performance, punctual payment and discharge when due of, agrees to cause each performance of all obligations of Buyer to perform when due, and shall be jointly and severally liable with each Buyer for the due and punctual performance, payment and discharge of, each and every obligation of each Buyer arising under this Agreement (or any transferee of Buyer pursuant to Section 9.7) set forth herein , including without limitation the payment by Buyer of the Transaction Documents Initial Purchase Payment, (b) from and after the Closing, Buyer’s payment, performance or other discharge of the Assumed Liabilities and (c) from and after the Closing, Buyer’s payment of the amounts payable to Seller pursuant to Appendix B of the Transition Services Agreement (collectively, the “Buyer Guaranteed Obligations”). Buyer Parent acknowledges and agrees that the obligations of Buyer Parent under his Section 10.1 shall be unconditional and absolute and no release or extinguishments of Buyer’s (or any Transferee’s) obligations or Liabilities (other than in accordance with the terms of this Agreement), including whether by decree in any bankruptcy proceeding or otherwise, shall affect the continuing validity and enforceability of this guarantee; provided, however, that Buyer Parent shall be entitled to assert as a defense to any claim for payment or performance of any Guaranteed Obligations any and all of the Purchase Price rights, defenses, counterclaims, exculpations, set-offs, indemnities and each Buyer’s indemnification obligations limitations on liability to which Buyer (or any transferee of Buyer pursuant to Section 9.7) may be entitled to assert under Section 8.2. Whenever this Agreement or any of the Transaction Documents requires any Buyer to take any actionTransition Services Agreement, including that (i) such requirement shall be deemed to include an undertaking on the part of Buyer Parent to cause such Buyer to take such action. The Buyer Guaranteed Obligations are primarynot currently due under the terms of this Agreement, absolute, unconditional and irrevocable, and or (ii) that such obligations Guaranteed Obligations have previously been paid or performed in full. The foregoing guarantee shall continue remain in full force and effect until the payment earlier of (x) the termination of this Agreement in accordance with Article VIII and performance(y) the date on which each Guaranteed Obligation has been completely performed and/or paid in full, as applicable, of all of the Buyer Guaranteed Obligations and are not conditioned upon any event or contingency or upon any attempt first to obtain payment from any Buyer under this Agreement or any of the Transaction Documents, or pursuit of any other right or remedy against any Buyer through the commencement of Legal Proceedings or otherwise. With respect to its obligations hereunder, Buyer Parent expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever. Buyer Parent acknowledges and agrees that its obligations hereunder shall continue in full force and effect, without notice from any other party or any Buyer or Parent in the event the obligations of any Buyer or Parent under this Agreement or any of the Transaction Documents are amended or in any way modified, and that the Buyer Guaranteed Obligations shall continue and shall apply in full to such amended obligations of such Buyer or Buyer Parent as though the amended terms had been part of this Agreement or any of the Transaction Documents, as applicable, from the original date of execution thereof. Buyer Parent waives any right to require that any resort be had by Parent (a) against any Buyer for any of the Buyer Guaranteed Obligations or (b) against any other right or remedy available to Parent by contract, applicable Law or otherwise. Without limiting the foregoing, Buyer Parent hereby waives and relinquishes all rights and remedies now or hereafter accorded by applicable Law to sureties and/or guarantors or any other accommodation parties, under any statutory provision, common law or any other provision of law, custom or practice, and agrees not to assert or take advantage of any such rights or remedies. In connection with the Buyer Guaranteed Obligations, Buyer Parent hereby represents and warrants any Proceeding to Parent that the value of the consideration received, and to be received, by Buyer Parent in connection with the transactions contemplated under the Agreement is worth at least as much as the liabilities and obligations of Buyer Parent enforce rights under this Section 10.1110.1, and that such liabilities and obligations are expected the prevailing party will be entitled to benefit Buyer Parent either directly or indirectlyrecover its reasonable attorneys fees.
Appears in 1 contract
Buyer Parent Guarantee. (a) Buyer Parent hereby fully irrevocably, absolutely and unconditionally guarantees to the due Sellers the prompt, complete and prompt full performance, payment and discharge when due of, agrees to cause each Buyer to perform when due, of all of Buyer’s covenants and shall be jointly and severally liable with each Buyer for the due and punctual performance, payment and discharge of, each and every obligation of each Buyer arising obligations under this Agreement or any and the Ancillary Agreements, including without limitation Buyer’s obligation in connection with the delivery of the Transaction Documents (collectivelyDeposit Amount, the “Buyer Guaranteed Obligations”), including Share Consideration to the payment of the Purchase Price Sellers and each Buyer’s indemnification obligations under in accordance with Section 8.27, when the same shall become due and payable in accordance with the terms of this Agreement. Whenever this Agreement or any of the Transaction Documents requires any Buyer to take any action, such requirement This guaranty shall be deemed to include an undertaking on the part of Buyer Parent to cause such Buyer to take such action. The Buyer Guaranteed Obligations are primary, absolute, unconditional a continuing guaranty and irrevocable, and such obligations shall continue remain in full force and effect until the payment until, and performance, as applicable, of all of the Buyer Guaranteed Obligations and are not conditioned upon any event or contingency or upon any attempt first to obtain payment from any Buyer Parent’s Liability under this Agreement or any of the Transaction Documents, or pursuit guaranty shall terminate in respect of any other right covenant or remedy against any obligation of Buyer through upon, the commencement termination of Legal Proceedings such covenant or otherwise. With respect to its obligations hereunderobligation of Buyer pursuant to, Buyer Parent expressly waives diligenceand in accordance with, presentment, demand of payment, protest and all notices whatsoeverthis Agreement. Buyer Parent acknowledges and agrees that its obligations hereunder under this Section 5.10 shall continue not be released or discharged in full force whole or in part by the insolvency, bankruptcy, liquidation, termination, dissolution, merger, consolidation or other business combination of Buyer. The guaranty contemplated in this Section 5.10 shall apply to any obligation of Buyer hereunder, regardless of whether Buyer Parent is specifically cited herein as being a party to such obligation. Buyer Parent shall be liable as principal debtor and effect, without notice from any other party or any Buyer or Parent in not solely as surety with respect to the event performance of the obligations of guaranteed hereunder. Buyer Parent shall be entitled to offset against its obligations pursuant to this guarantee any amounts to which Buyer or Parent may be entitled under this Agreement provided that such amounts must first be (i) agreed to in writing by Sellers, (ii) determined to be owing pursuant to a final and binding order or judgment of a Governmental Authority of competent jurisdiction or (iii) determined to be owing pursuant to a final and binding determination or award of an arbitration or like panel. The Sellers shall not be bound to exhaust their recourse against Buyer or any other Person before being entitled to payment or other recourse under the guarantee provided by Buyer Parent herein.
(b) Buyer Parent represents and warrants to the Sellers as of the Transaction Documents are amended date hereof and as of the Closing Date: (i) it is a corporation duly incorporated, validly existing and in good standing under the Laws of its jurisdiction of incorporation and has full corporate power and authority to execute and deliver this Agreement and the Ancillary Agreements to which it is a party and to perform its obligations hereunder and thereunder, (ii) the execution, delivery and performance by Buyer Parent of this Agreement and the Ancillary Agreements to which it is a party has been duly and validly authorized by Buyer Parent and no additional corporate, shareholder or other similar authorization or consent is required in any way modifiedconnection with the execution, delivery and performance by Buyer Parent of this Agreement, (iii) this Agreement and the Ancillary Agreements to which it is a party, when executed and delivered by the Sellers, will constitute a valid and legally binding obligation of Buyer Parent enforceable against it in accordance with its terms, except insofar as (A) enforcement may be limited by applicable bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization, preference or similar Laws of general applicability relating to or affecting the rights of creditors generally and subject to general principles of equity (regardless of whether enforcement is sought in equity or at Law) and (B) the availability of equitable remedies such as specific performance and injunction may be limited by applicable Law and the discretion that a court may exercise in granting the same, and that (iv) neither the Buyer Guaranteed Obligations shall continue execution and shall apply in full to such amended obligations of such Buyer or delivery by Buyer Parent as though the amended terms had been part of this Agreement or by Buyer Parent of any Ancillary Agreement to which Buyer Parent is or will be a party, nor the consummation of the Transaction Documentsor the other transactions contemplated hereby and thereby (including the Share Sale), as applicablewill conflict with, from the original date of execution thereof. Buyer Parent waives or result in any right to require that any resort be had by Parent (a) against any Buyer for any of the Buyer Guaranteed Obligations breach or (b) against any other right violation of, or remedy available to Parent by contract, applicable Law or otherwise. Without limiting the foregoing, Buyer Parent hereby waives and relinquishes all rights and remedies now or hereafter accorded by applicable Law to sureties and/or guarantors or any other accommodation parties, under any statutory provision, common law or any other provision of law, custom or practice, and agrees not to assert or take advantage of any such rights or remedies. In connection with the Buyer Guaranteed Obligations, Buyer Parent hereby represents and warrants to Parent that the value of the consideration received, and to be received, by Buyer Parent default in connection with (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation or obligation or loss of any benefit under (A) any provision of the transactions contemplated under the Agreement is worth at least as much as the liabilities and obligations Charter Documents of Buyer Parent under this Section 10.11, and that such liabilities and obligations are expected or (B) any Contract to benefit which Buyer Parent either directly or indirectly.any of its Subsidiaries is a party or to which any of their respective Assets (whether tangible or intangible) are bound. 24
Appears in 1 contract
Samples: Asset Purchase Agreement (RPX Corp)
Buyer Parent Guarantee. (a) Buyer Parent hereby fully unconditionally and irrevocably guarantees and promises to the Seller Parties, in order to induce the Seller Parties to enter into this Agreement, (i) the payment, if any, by Buyer of the Closing Date Purchase Price and any other amounts payable by Buyer pursuant to this Agreement when and to the extent the same shall become due and prompt payable, and (ii) the performance, payment fulfillment and discharge when due of, agrees to cause each Buyer to perform when due, and shall be jointly and severally liable with each Buyer for the due and punctual performance, payment and discharge of, each and every obligation observance of each agreement, condition, covenant, obligation and undertaking of Buyer arising under this Agreement and all agreements ancillary thereto or any of executed in connection therewith, on the Transaction Documents terms and subject to the conditions set forth therein (collectively, the “Buyer Guaranteed Obligations”). If Buyer fails to pay any amounts due under this Agreement when and to the extent the same shall become due and payable, including the payment or fails to perform, fulfill or observe any of the Purchase Price and each Buyer’s indemnification obligations under Section 8.2. Whenever Guaranteed Obligations in the manner provided in this Agreement or any of the Transaction Documents requires any Buyer to take any actionrelevant ancillary agreement, such requirement shall be deemed to include an undertaking on the part of Buyer Parent shall, upon written demand from either Seller Party, promptly pay or cause to be paid such amount or perform, fulfill or observe or cause to be performed, fulfilled or observed such Buyer to take such actionGuaranteed Obligation, as the case may be. The Buyer Guaranteed Obligations under this guaranty shall constitute an absolute and unconditional present and continuing guarantee of payment and performance to the extent provided herein and not of collectability, and shall not be contingent upon any attempt by either Seller Party to enforce payment or performance by Buyer.
(b) The Guaranteed Obligations are primaryabsolute and unconditional, absoluteare not subject to any counterclaim, unconditional and irrevocablesetoff, deduction, abatement or defense based upon any claim that Buyer Parent or Buyer may have against either Seller Party, and such obligations shall continue remain in full force and effect until without regard to (i) any insolvency, bankruptcy, dissolution, liquidation, reorganization or the payment and performancelike of Buyer Parent or Buyer at any time; or (ii) absence of any notice to, as applicableor knowledge by, of all Buyer Parent of the Buyer Guaranteed Obligations and are not conditioned upon any event existence or contingency or upon any attempt first to obtain payment from any Buyer under this Agreement or occurrence of any of the Transaction Documents, matters or pursuit of any other right or remedy against any Buyer through the commencement of Legal Proceedings or otherwise. With respect to its obligations hereunder, Buyer Parent expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever. Buyer Parent acknowledges and agrees that its obligations hereunder shall continue in full force and effect, without notice from any other party or any Buyer or Parent events set forth in the event the obligations of any Buyer or Parent under this Agreement or any of the Transaction Documents are amended or in any way modified, and that the Buyer Guaranteed Obligations shall continue and shall apply in full to such amended obligations of such Buyer or Buyer Parent as though the amended terms had been part of this Agreement or any of the Transaction Documents, as applicable, from the original date of execution thereof. Buyer Parent waives any right to require that any resort be had by Parent foregoing subdivision (ai).
(c) against any Buyer for any of the Buyer Guaranteed Obligations or (b) against any other right or remedy available to Parent by contract, applicable Law or otherwise. Without limiting the foregoing, Buyer Parent hereby waives and relinquishes all rights and remedies now or hereafter accorded by applicable Law to sureties and/or guarantors or any other accommodation parties, under any statutory provision, common law or any other provision of law, custom or practice, and agrees not to assert or take advantage of any such rights or remedies. In connection with the Buyer Guaranteed Obligations, Buyer Parent hereby represents and warrants to Parent the Seller Parties that (i) it is a corporation duly formed, validly existing and in good standing under the value laws of the consideration receivedstate of Delaware, and it has all power and authority to execute, deliver and perform its obligations under this Section 13.16; (ii) the execution, delivery and performance of this Agreement by it has been duly and validly authorized and approved by all necessary corporate action, and no other proceedings or actions on the part of it are necessary therefor; (iii) this Agreement has been duly and validly executed and delivered by it is a valid, legal and binding obligation of it, enforceable against it in accordance with its terms, except as enforceability may be receivedlimited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting enforcement of creditors’ rights generally, and laws relating to the availability of specific performance, injunctive relief or other equitable remedies; (iv) no litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to its knowledge, threatened by Buyer Parent in connection or against it with respect to any of the transactions contemplated under the Agreement is worth at least as much as the liabilities by this Agreement; and (v) it will have sufficient funds immediately available to pay and perform all of its obligations of Buyer Parent under this Section 10.11, and that such liabilities and obligations are expected to benefit Buyer Parent either directly or indirectly13.16.
Appears in 1 contract
Buyer Parent Guarantee. (a) Buyer Parent hereby fully irrevocably, absolutely and unconditionally guarantees to the due Sellers the prompt, complete and prompt full performance, payment and discharge when due of, agrees to cause each Buyer to perform when due, of all of Buyer’s covenants and shall be jointly and severally liable with each Buyer for the due and punctual performance, payment and discharge of, each and every obligation of each Buyer arising obligations under this Agreement or any and the Ancillary Agreements, including without limitation Buyer’s obligation in connection with the delivery of the Transaction Documents (collectivelyDeposit Amount, the “Buyer Guaranteed Obligations”), including Share Consideration to the payment of the Purchase Price Sellers and each Buyer’s indemnification obligations under in accordance with Section 8.27, when the same shall become due and payable in accordance with the terms of this Agreement. Whenever this Agreement or any of the Transaction Documents requires any Buyer to take any action, such requirement This guaranty shall be deemed to include an undertaking on the part of Buyer Parent to cause such Buyer to take such action. The Buyer Guaranteed Obligations are primary, absolute, unconditional a continuing guaranty and irrevocable, and such obligations shall continue remain in full force and effect until the payment until, and performance, as applicable, of all of the Buyer Guaranteed Obligations and are not conditioned upon any event or contingency or upon any attempt first to obtain payment from any Buyer Parent’s Liability under this Agreement or any of the Transaction Documents, or pursuit guaranty shall terminate in respect of any other right covenant or remedy against any obligation of Buyer through upon, the commencement termination of Legal Proceedings such covenant or otherwise. With respect to its obligations hereunderobligation of Buyer pursuant to, Buyer Parent expressly waives diligenceand in accordance with, presentment, demand of payment, protest and all notices whatsoeverthis Agreement. Buyer Parent acknowledges and agrees that its obligations hereunder under this Section 5.10 shall continue not be released or discharged in full force whole or in part by the insolvency, bankruptcy, liquidation, termination, dissolution, merger, consolidation or other business combination of Buyer. The guaranty contemplated in this Section 5.10 shall apply to any obligation of Buyer hereunder, regardless of whether Buyer Parent is specifically cited herein as being a party to such obligation. Buyer Parent shall be liable as principal debtor and effect, without notice from not solely as surety with respect to the performance of the 23 obligations guaranteed hereunder. Buyer Parent shall be entitled to offset against its obligations pursuant to this guarantee any other party or any amounts to which Buyer or Parent in the event the obligations of any Buyer or Parent may be entitled under this Agreement provided that such amounts must first be (i) agreed to in writing by Sellers, (ii) determined to be owing pursuant to a final and binding order or judgment of a Governmental Authority of competent jurisdiction or (iii) determined to be owing pursuant to a final and binding determination or award of an arbitration or like panel. The Sellers shall not be bound to exhaust their recourse against Buyer or any other Person before being entitled to payment or other recourse under the guarantee provided by Buyer Parent herein.
(b) Buyer Parent represents and warrants to the Sellers as of the Transaction Documents are amended date hereof and as of the Closing Date: (i) it is a corporation duly incorporated, validly existing and in good standing under the Laws of its jurisdiction of incorporation and has full corporate power and authority to execute and deliver this Agreement and the Ancillary Agreements to which it is a party and to perform its obligations hereunder and thereunder, (ii) the execution, delivery and performance by Buyer Parent of this Agreement and the Ancillary Agreements to which it is a party has been duly and validly authorized by Buyer Parent and no additional corporate, shareholder or other similar authorization or consent is required in any way modifiedconnection with the execution, delivery and performance by Buyer Parent of this Agreement, (iii) this Agreement and the Ancillary Agreements to which it is a party, when executed and delivered by the Sellers, will constitute a valid and legally binding obligation of Buyer Parent enforceable against it in accordance with its terms, except insofar as (A) enforcement may be limited by applicable bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization, preference or similar Laws of general applicability relating to or affecting the rights of creditors generally and subject to general principles of equity (regardless of whether enforcement is sought in equity or at Law) and (B) the availability of equitable remedies such as specific performance and injunction may be limited by applicable Law and the discretion that a court may exercise in granting the same, and that (iv) neither the Buyer Guaranteed Obligations shall continue execution and shall apply in full to such amended obligations of such Buyer or delivery by Buyer Parent as though the amended terms had been part of this Agreement or by Buyer Parent of any Ancillary Agreement to which Buyer Parent is or will be a party, nor the consummation of the Transaction Documentsor the other transactions contemplated hereby and thereby (including the Share Sale), as applicablewill conflict with, from the original date of execution thereof. Buyer Parent waives or result in any right to require that any resort be had by Parent (a) against any Buyer for any of the Buyer Guaranteed Obligations breach or (b) against any other right violation of, or remedy available to Parent by contract, applicable Law or otherwise. Without limiting the foregoing, Buyer Parent hereby waives and relinquishes all rights and remedies now or hereafter accorded by applicable Law to sureties and/or guarantors or any other accommodation parties, under any statutory provision, common law or any other provision of law, custom or practice, and agrees not to assert or take advantage of any such rights or remedies. In connection with the Buyer Guaranteed Obligations, Buyer Parent hereby represents and warrants to Parent that the value of the consideration received, and to be received, by Buyer Parent default in connection with (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation or obligation or loss of any benefit under (A) any provision of the transactions contemplated under the Agreement is worth at least as much as the liabilities and obligations Charter Documents of Buyer Parent under this Section 10.11, and that such liabilities and obligations are expected or (B) any Contract to benefit which Buyer Parent either directly or indirectlyany of its Subsidiaries is a party or to which any of their respective Assets (whether tangible or intangible) are bound.
Appears in 1 contract
Samples: Asset Purchase Agreement (RPX Corp)
