Parent Guarantee. (a) Parent hereby unconditionally and irrevocably guarantees and promises to Seller, in order to induce Seller to enter into this Agreement (i) the payment by Buyer of the Purchase Price and any other amounts payable by Buyer to Seller pursuant to this Agreement when and to the extent the same shall become due and payable, and (ii) the performance, fulfillment and observance of each agreement, condition, covenant, obligation and undertaking of Buyer and the Company (as owned by Buyer after the Closing) under this Agreement and all Ancillary Agreements or agreement executed in connection with this Agreement, on the terms and subject to the conditions set forth therein (collectively, the "Guaranteed Obligations"). If Buyer or the Company (as owned by Buyer after the Closing) shall fail to pay any amounts due under this Agreement when and to the extent the same shall become due and payable, or shall fail to perform, fulfill or observe any of the Guaranteed Obligations in the manner provided in this Agreement or any relevant Ancillary Agreements or agreement executed in connection with this Agreement, Parent will upon written demand from Seller promptly pay or cause to be paid such amount to Seller or perform, fulfill or observe or cause to be performed, fulfilled or observed such Guaranteed Obligation, as the case may be. The 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 Seller to enforce payment or performance by Buyer. (b) The Guaranteed Obligations under this guaranty are absolute and unconditional, are not subject to any counterclaim, setoff, deduction, abatement or defense based upon any claim Parent or Buyer may have against Seller, and shall remain in full force and effect without regard to (i) any agreement or modification to any of the terms of this Agreement or any other agreement which may hereafter be made relating thereto, in each case in accordance with the terms of this Agreement, (ii) any exercise, non-exercise or waiver by Seller of any right, power, privilege or remedy under or in respect of this Agreement, (iii) any insolvency, bankruptcy, dissolution, liquidation, reorganization or the like of Parent or Buyer at any time, or (iv) absence of any notice to, or knowledge by, Parent of the existence or occurrence of any of the matters or events set forth in the foregoing subparagraphs (i) through (iii). Parent will continue to own all of the outstanding equity or membership interests of Buyer, and maintain the legal existence of Buyer, and upon any dissolution, liquidation or reorganization of Buyer at any time, Parent shall directly and unconditionally assume all payment and performance Guaranteed Obligations of Buyer under this Agreement or otherwise. (c) Parent unconditionally waives (i) any and all notice of default, non-performance or non-payment under this Agreement, and (ii) all notices which may be required by Law or otherwise to preserve intact any rights of Seller against Parent, including any demand, presentment or protest, or proof of notice of non-payment under this Agreement.
Appears in 1 contract
Parent Guarantee. (a) The Parent hereby absolutely, unconditionally and irrevocably guarantees and promises to Seller, in order to induce Seller to enter into this Agreement (i) the payment by Buyer and performance of all of the Purchase Price payment and any other amounts payable by obligations of Buyer to Seller pursuant to in this Agreement and the other Transaction Agreements (the “Parent Obligations”), in each case, when and to the extent the same that, any such Parent Obligations shall become due and payable; provided, and (ii) however, that the performance, fulfillment and observance of each agreement, condition, covenant, obligation and undertaking of Buyer and the Company (as owned by Buyer after the Closing) under this Agreement and all Ancillary Agreements or agreement executed in connection with this Agreement, on the terms and Parent shall be subject to the conditions limitations set forth therein (collectively, the "Guaranteed Obligations"). If Buyer or the Company (as owned by Buyer after the Closing) herein and shall fail succeed to pay any amounts due under this Agreement when and to the extent the same shall become due and payable, or shall fail to perform, fulfill or observe any all rights of the Guaranteed Obligations in Buyer hereunder. The Parent agrees that the manner provided guaranty set forth in this Agreement or any relevant Ancillary Agreements or agreement executed in connection with this Agreement, Parent will upon written demand from Seller promptly pay or cause to be paid such amount to Seller or perform, fulfill or observe or cause to be performed, fulfilled or observed such Guaranteed Obligation, as the case may be. The Guaranteed Obligations under this guaranty shall constitute an absolute and unconditional Section 10.25 is a present and continuing guarantee guaranty of payment and performance to the extent provided herein and not of collectability, and that Seller shall not be contingent upon required to prosecute collection, enforcement or other remedies against Buyer or any attempt by Seller other Person, or to enforce or resort to any other rights or remedies hereunder, before calling on the Parent for payment or performance by Buyer.
(b) performance. The Guaranteed Parent agrees that if, for any reason, Buyer shall fail or be unable to pay or perform, punctually and fully, any of the Parent Obligations, the Parent shall pay or perform such Parent Obligations under to Seller in full immediately upon demand. The Parent agrees that the obligations of the Parent pursuant to this guaranty are absolute and unconditionalSection 10.25 shall be primary obligations, are shall not be subject to any counterclaim, setoffset-off, deductionabatement, abatement deferment or defense based upon any claim that the Parent or Buyer may have against SellerSeller or any other Person, and shall remain in full force and effect without regard to to, and shall not be released, discharged or affected in any way by any circumstance or condition (i) whether or not the Parent shall have any agreement or modification to any of knowledge thereof). The execution, delivery and performance by the terms Parent of this Agreement or any other agreement which may hereafter be made relating thereto, in each case in accordance with and the terms of this Agreement, (ii) any exercise, non-exercise or waiver by Seller of any right, power, privilege or remedy under or in respect of this Agreement, (iii) any insolvency, bankruptcy, dissolution, liquidation, reorganization or the like of Parent or Buyer at any time, or (iv) absence of any notice to, or knowledge by, Parent consummation of the existence or occurrence of any transactions contemplated hereby, have been duly authorized by all necessary corporate action on the part of the matters or events set forth in the foregoing subparagraphs (i) through (iii)Parent. The Parent will continue to own all of the outstanding equity or membership interests of Buyer, has duly executed and maintain the legal existence of Buyer, and upon any dissolution, liquidation or reorganization of Buyer at any time, Parent shall directly and unconditionally assume all payment and performance Guaranteed Obligations of Buyer under this Agreement or otherwise.
(c) Parent unconditionally waives (i) any and all notice of default, non-performance or non-payment under delivered this Agreement, and (ii) all notices which assuming the due authorization, execution and delivery by Seller, this Agreement constitute its legal, valid and binding obligation, enforceable against it in accordance with its terms, except to the extent that the enforceability thereof may be required limited by Law or otherwise to preserve intact any rights of Seller against Parent, including any demand, presentment or protest, or proof of notice of non-payment under this Agreementthe Enforceability Exceptions.
Appears in 1 contract
Parent Guarantee. Parent hereby irrevocably and unconditionally guarantees to Seller, as primary obligor and not merely as a surety, the full and timely payment and performance of the Buyer’s covenants and agreements in this Agreement (collectively, the “Buyer Guaranteed Obligations”). This is a guarantee of payment and performance, and not merely of collection, and Parent acknowledges and agrees that this guarantee is full and unconditional, and no amendment, modification, release or extinguishment of the Buyer’s obligations or Liabilities, whether by decree in any bankruptcy proceeding or otherwise, shall affect ACTIVE 218042945 the continuing validity and enforceability of this guarantee; provided, however, that a Delay of Payment must have occurred before any Seller Indemnified Parties may seek to enforce a Buyer Guaranteed Obligation against Parent. Parent hereby waives, for the benefit of the Seller, (a) any right to require the Buyer, as a condition of payment or performance by Parent, to proceed in any Legal Proceeding against the Buyer or pursue any other remedies whatsoever after a Delay of Payment has occurred and (b) to the fullest extent permitted by 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 payment and performance in full of the Buyer Guaranteed Obligations. Parent understands that the Seller is relying on this guarantee in entering into this Agreement. Parent hereby unconditionally represents and irrevocably guarantees and promises to Seller, in order to induce Seller to enter into this Agreement warrants that (i) the payment by Buyer of the Purchase Price it has all requisite power and any other amounts payable by Buyer authority to Seller pursuant to execute, deliver and perform this Agreement when and to the extent the same shall become due and payable, and (ii) the performance, fulfillment and observance of each agreement, condition, covenant, obligation and undertaking of Buyer and the Company (as owned by Buyer after the Closing) under this Agreement represents (assuming the valid authorization, execution and all Ancillary Agreements or agreement executed in connection with this Agreement, on the terms and subject to the conditions set forth therein (collectively, the "Guaranteed Obligations"). If Buyer or the Company (as owned by Buyer after the Closing) shall fail to pay any amounts due under this Agreement when and to the extent the same shall become due and payable, or shall fail to perform, fulfill or observe any of the Guaranteed Obligations in the manner provided in this Agreement or any relevant Ancillary Agreements or agreement executed in connection with this Agreement, Parent will upon written demand from Seller promptly pay or cause to be paid such amount to Seller or perform, fulfill or observe or cause to be performed, fulfilled or observed such Guaranteed Obligation, as the case may be. The 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 Seller to enforce payment or performance by Buyer.
(b) The Guaranteed Obligations under this guaranty are absolute and unconditional, are not subject to any counterclaim, setoff, deduction, abatement or defense based upon any claim Parent or Buyer may have against Seller, and shall remain in full force and effect without regard to (i) any agreement or modification to any of the terms delivery of this Agreement or any by the other agreement which may hereafter be made relating theretoparties hereto) the legal, in each case valid and binding obligation of Parent, enforceable against Parent in accordance with the terms of this Agreement, (ii) any exercise, non-exercise or waiver by Seller of any right, power, privilege or remedy under or in respect of this Agreement, (iii) any insolvency, bankruptcy, dissolution, liquidation, reorganization or the like its terms. The foregoing representations and warranties of Parent or shall survive until the Buyer at any time, or (iv) absence of any notice to, or knowledge by, Parent of the existence or occurrence of any of the matters or events set forth in the foregoing subparagraphs (i) through (iii). Parent will continue to own all of the outstanding equity or membership interests of Buyer, and maintain the legal existence of Buyer, and upon any dissolution, liquidation or reorganization of Buyer at any time, Parent shall directly and unconditionally assume all payment and performance Guaranteed Obligations of Buyer under this Agreement have been performed or otherwise.
(c) Parent unconditionally waives (i) any paid and all notice of default, non-performance or non-payment under this Agreement, and (ii) all notices which may be required by Law or otherwise to preserve intact any rights of Seller against Parent, including any demand, presentment or protest, or proof of notice of non-payment under this Agreement.satisfied in full. ACTIVE 218042945
Appears in 1 contract
Samples: Equity Interest Purchase Agreement (Schweitzer Mauduit International Inc)
Parent Guarantee. (a) Parent hereby irrevocably, absolutely and unconditionally and irrevocably guarantees and promises to Seller, in order to induce Seller to enter into as a primary obligor and not merely as a surety, the full and timely performance, payment and observation by Purchaser of all its obligations, commitments, undertakings, covenants, warranties and indemnities under this Agreement (i) the payment by Buyer and any of the Purchase Price and Transaction Documents (the “Parent Guaranteed Obligations”) to the extent of any other amounts payable by Buyer to Seller limit on the liability of Purchaser or Parent pursuant to this Agreement when and to the extent the same shall become due and payable, and (ii) the performance, fulfillment and observance of each agreement, condition, covenant, obligation and undertaking of Buyer and the Company (as owned by Buyer after the Closing) under this Agreement and all Ancillary Agreements or agreement executed in connection with this Agreement, on the terms and subject to the conditions set forth therein (collectively, the "Guaranteed Obligations"). If Buyer or the Company (as owned by Buyer after the Closing) shall fail to pay any amounts due under this Agreement when and to the extent the same shall become due and payable, or shall fail to perform, fulfill or observe any of the Guaranteed Obligations in the manner provided in this Agreement or any relevant Ancillary Agreements or agreement executed in connection with this Agreement, Parent will upon written demand from Seller promptly pay or cause to be paid such amount to Seller or perform, fulfill or observe or cause to be performed, fulfilled or observed such Guaranteed Obligation, as the case may beTransaction Documents. The Guaranteed Obligations under this guaranty shall constitute an absolute and unconditional present and continuing This guarantee is a guarantee of payment and performance to the extent provided herein payment, and not merely of collectabilitycollection, and shall not be contingent upon any attempt by Seller to enforce payment or performance by BuyerParent hereby acknowledges and agrees that this guarantee is full and unconditional.
(b) The If and whenever Purchaser defaults for any reason whatsoever in the performance of any of the Parent Guaranteed Obligations under Obligations, Parent shall immediately on demand unconditionally perform (or cause the performance of) and satisfy (or cause the satisfaction of) such Parent Guaranteed Obligation with respect to which Purchaser has defaulted in the manner prescribed by this guaranty are absolute Agreement or the applicable Transaction Document such that Seller shall receive the same benefit as if the Parent Guaranteed Obligation had been duly and unconditional, are not subject to any counterclaim, setoff, deduction, abatement or defense based upon any claim Parent or Buyer may have against Seller, timely performed and satisfied by Purchaser.
(c) This guarantee shall be a continuing guarantee and accordingly it shall remain in full force and effect without regard and shall be binding on Parent, its successor and permitted assigns, until all of the Parent Guaranteed Obligations have been indefeasibly paid or performed in full. Notwithstanding the foregoing, this guarantee shall be null and void and of no further effect, and the Parent shall have no further obligations under this guarantee as of: (x) the termination of this Agreement according to terms, and (iy) with respect to Parent Guaranteed Obligations required to be paid or performed by Purchaser at or before Closing, immediately following the Closing. This guarantee is in addition to any agreement rights or modification security which Seller may now or hereafter have or hold for the performance and satisfaction of the Parent Guaranteed Obligations.
(d) If for any reason Purchaser ceases to have any legal existence or if any of the terms Parent Guaranteed Obligations have become irrecoverable from Purchaser by reason of this Agreement or any other agreement which may hereafter be made relating thereto, in each case in accordance with the terms of this Agreement, (ii) any exercise, non-exercise or waiver by Seller of any right, power, privilege or remedy under or in respect of this Agreement, (iii) any insolvency, Purchaser’s bankruptcy, dissolution, liquidation, insolvency or reorganization or by other operation of law, this guarantee shall remain binding on the like of Parent or Buyer to the same extent as if the Parent had at any time, or (iv) absence of any notice to, or knowledge by, all times been the primary and sole obligor on all such Parent of the existence or occurrence of any of the matters or events set forth in the foregoing subparagraphs (i) through (iii). Parent will continue to own all of the outstanding equity or membership interests of Buyer, and maintain the legal existence of Buyer, and upon any dissolution, liquidation or reorganization of Buyer at any time, Parent shall directly and unconditionally assume all payment and performance Guaranteed Obligations of Buyer under this Agreement or otherwiseObligations.
(e) To the fullest extent permitted by law, Parent hereby waives, for the benefit of Seller (a) any right to require Seller, as the case may be, as a condition of payment or performance by Parent, to proceed against Purchaser or pursue any other remedy whatsoever, (b) any “suretyship defense” or other defenses or benefit that may arise under any law intended to limit the liability of or exonerate guarantors or sureties, (c) Parent unconditionally waives (i) any and all notice of defaultacceptance of this guarantee and notice of the existence, non-performance creation or incurrence of any new or additional liability to which it may apply, (d) promptness, diligence, presentment, demand of payment, demand for performance, protest, notice of dishonor or non-payment under this Agreementof any such liabilities, suit or taking of other action by Seller, and the Parent Guaranteed Obligations shall conclusively be deemed to have been created, contracted or incurred or renewed, extended, amended, modified, supplemented or waived in reliance upon this guarantee.
(iif) Without limiting in any way this guarantee, subject to applicable law and regulations, Parent covenants and agrees to take all notices which may be required by Law actions within its power to cause Purchaser to fully and timely perform or otherwise to preserve intact any rights pay each of Seller against Parent, including any demand, presentment or protest, or proof of notice of non-payment under this Agreementthe Parent Guaranteed Obligations.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (Central European Distribution Corp)
Parent Guarantee. Parent hereby irrevocably and unconditionally guarantees to Seller, as primary obligor and not merely as a surety, the full and timely payment and performance of Buyer’s covenants and agreements in this Agreement (collectively, the “Buyer Guaranteed Obligations”). This is a guarantee of payment and performance, and not merely of collection, and 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 continuing validity and enforceability of this guarantee; provided, however, that a Delay of Payment must have occurred before any Seller Indemnified Parties may seek to enforce a Buyer Guaranteed Obligation against Parent. Parent hereby waives, for the benefit of Seller, (a) any right to require Buyer, as a condition of payment or performance by Parent, to proceed in any Legal Proceeding against Buyer or pursue any other remedies whatsoever after a Delay of Payment has occurred and (b) to the fullest extent permitted by 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 payment and performance in full of the Buyer Guaranteed Obligations. Parent understands that Seller is relying on this guarantee in entering into this Agreement. Parent hereby unconditionally represents and irrevocably guarantees and promises to Seller, in order to induce Seller to enter into this Agreement warrants that (i) the payment by Buyer of the Purchase Price it has all requisite power and any other amounts payable by Buyer authority to Seller pursuant to execute, deliver and perform this Agreement when and to the extent the same shall become due and payable, and (ii) the performance, fulfillment and observance of each agreement, condition, covenant, obligation and undertaking of Buyer and the Company (as owned by Buyer after the Closing) under this Agreement represents (assuming the valid authorization, execution and all Ancillary Agreements or agreement executed in connection with this Agreement, on the terms and subject to the conditions set forth therein (collectively, the "Guaranteed Obligations"). If Buyer or the Company (as owned by Buyer after the Closing) shall fail to pay any amounts due under this Agreement when and to the extent the same shall become due and payable, or shall fail to perform, fulfill or observe any of the Guaranteed Obligations in the manner provided in this Agreement or any relevant Ancillary Agreements or agreement executed in connection with this Agreement, Parent will upon written demand from Seller promptly pay or cause to be paid such amount to Seller or perform, fulfill or observe or cause to be performed, fulfilled or observed such Guaranteed Obligation, as the case may be. The 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 Seller to enforce payment or performance by Buyer.
(b) The Guaranteed Obligations under this guaranty are absolute and unconditional, are not subject to any counterclaim, setoff, deduction, abatement or defense based upon any claim Parent or Buyer may have against Seller, and shall remain in full force and effect without regard to (i) any agreement or modification to any of the terms delivery of this Agreement or any by the other agreement which may hereafter be made relating theretoparties hereto) the legal, in each case valid and binding obligation of Parent, enforceable against Parent in accordance with the terms of this Agreement, (ii) any exercise, non-exercise or waiver by Seller of any right, power, privilege or remedy under or in respect of this Agreement, (iii) any insolvency, bankruptcy, dissolution, liquidation, reorganization or the like its terms. The foregoing representations and warranties of Parent or shall survive until the Buyer at any time, or (iv) absence of any notice to, or knowledge by, Parent of the existence or occurrence of any of the matters or events set forth in the foregoing subparagraphs (i) through (iii). Parent will continue to own all of the outstanding equity or membership interests of Buyer, and maintain the legal existence of Buyer, and upon any dissolution, liquidation or reorganization of Buyer at any time, Parent shall directly and unconditionally assume all payment and performance Guaranteed Obligations of Buyer under this Agreement have been performed or otherwisepaid and satisfied in full.
(c) Parent unconditionally waives (i) any and all notice of default, non-performance or non-payment under this Agreement, and (ii) all notices which may be required by Law or otherwise to preserve intact any rights of Seller against Parent, including any demand, presentment or protest, or proof of notice of non-payment under this Agreement.
Appears in 1 contract
Samples: Equity Interest Purchase Agreement (Schweitzer Mauduit International Inc)
Parent Guarantee. (a) Parent Pinnacle Corp. hereby unconditionally and irrevocably guarantees and promises to Seller, in order to induce Seller to enter into this Agreement (i) Delta the payment by Buyer of the Purchase Price and any other amounts payable by Buyer to Seller pursuant to this Agreement when and to the extent the same shall become due and payablepunctual performance by Pinnacle of Pinnacle’s obligations, agreements and (ii) the performance, fulfillment and observance of each agreement, condition, covenant, obligation and undertaking of Buyer and the Company (as owned by Buyer after the Closing) covenants arising under this Agreement and all Ancillary Agreements or agreement executed in connection with this Agreement, on the terms under each term and subject to the conditions set forth therein condition hereof (collectively, the "Guaranteed “Obligations"”). If Buyer or the Company (as owned by Buyer after the Closing) Pinnacle shall fail or be unable to pay perform any amounts due under this Agreement such Obligation as and when and to the extent the same shall become due be required to be performed, then Pinnacle Corp., at its sole cost and payableexpense, or shall fail be obligated to perform, fulfill or observe any of the Guaranteed Obligations in the manner provided in this Agreement or any relevant Ancillary Agreements or agreement executed in connection with this Agreement, Parent will upon written demand from Seller promptly pay perform or cause to be paid promptly performed each such amount to Seller or performObligation in accordance with the terms hereof and thereof. This guaranty is a guaranty of payment, fulfill or observe or cause to be performed, fulfilled or observed such Guaranteed Obligation, as the case may be. The Guaranteed Obligations under this guaranty shall constitute an absolute performance and unconditional present and continuing guarantee of payment and performance to the extent provided herein compliance and not of collectability, collectibility and shall not be is in no way conditioned or contingent upon any attempt to collect from or enforce performance or compliance by Seller Pinnacle or upon any other event or condition whatsoever. If for any reason any payment Obligation amount shall not be paid by Pinnacle when due, Pinnacle Corp. shall immediately pay such amount to the person entitled thereto pursuant to this Agreement, as if such amount constituted the direct and primary obligation of Pinnacle Corp. and regardless of whether any person has taken any steps to enforce payment or performance by Buyerany rights against such Party to collect such amount.
(b) The Guaranteed Obligations To the fullest extent permitted under this guaranty are applicable law, the obligations of Pinnacle Corp. and Pinnacle hereunder shall be absolute and unconditional, are not subject to any counterclaim, setoff, deduction, abatement or defense based upon any claim Parent or Buyer may have against Seller, shall be continuing and shall remain in full force and effect without regard to until final and irrevocable payment or performance, and shall not be released, discharged, affected or impaired in any respect by: (ia) any agreement amendment, modification, or modification cancellation of, or addition or supplement to this Agreement; (b) any exercise, acceleration, extension, compromise, settlement, non-exercise, waiver, release, or cancellation by Delta of any right, remedy, power or privilege under or related to this Agreement or any other guaranty of any obligations of Pinnacle; (c) the invalidity or unenforceability, in whole or in part, of this Agreement; (d) any change in the corporate existence, structure or ownership of either Pinnacle Corp. or Pinnacle or any insolvency, bankruptcy, reorganization or other similar proceeding affecting either of them or their assets; or (e) any other occurrence, circumstance, happening or event whatsoever, whether similar or dissimilar to the foregoing, whether foreseen or unforeseen, and any other circumstance which might otherwise constitute a legal or equitable defense, release or discharge of the liabilities of a guarantor or surety, or which might otherwise limit recourse against Pinnacle Corp. or Pinnacle. If acceleration of the time for the performance or payment of any Obligation is stayed upon the insolvency, bankruptcy or reorganization of Pinnacle, all Obligations that are subject to acceleration under the terms of this Agreement shall nonetheless be performed or any other agreement which may hereafter be made relating theretopayable hereunder by Pinnacle Corp. or Pinnacle, in each case in accordance with the terms of this Agreement, (ii) any exercise, non-exercise or waiver by Seller of any right, power, privilege or remedy under or in respect of this Agreement, (iii) any insolvency, bankruptcy, dissolution, liquidation, reorganization or the like of Parent or Buyer at any time, or (iv) absence of any notice to, or knowledge by, Parent of the existence or occurrence of any of the matters or events set forth in the foregoing subparagraphs (i) through (iii). Parent will continue to own all of the outstanding equity or membership interests of Buyer, and maintain the legal existence of Buyer, and upon any dissolution, liquidation or reorganization of Buyer at any time, Parent shall directly and unconditionally assume all payment and performance Guaranteed Obligations of Buyer under this Agreement or otherwiseas applicable.
(c) Parent unconditionally waives Each of Pinnacle Corp. and Pinnacle hereby specifically agrees that it shall not be necessary or required as a condition to enforcement of the obligations hereunder against it, that there be (and each of Pinnacle Corp. and Pinnacle, to the fullest extent permitted by applicable law, specifically waives) diligence, presentment, or protest of any kind whatsoever with respect to the respective guaranty by Pinnacle Corp. and Pinnacle or the Obligations; such waiver includes, without limitation: (i) presentment for payment upon Pinnacle Corp. or Pinnacle or the making of any and all protest; (ii) any requirement to exhaust any remedies exercisable upon a default under this Agreement or to give any notice of default, non-performance or non-payment; (iii) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety; or (iv) so long as any Obligation remains outstanding, any right of subrogation by virtue of any performance or payment made hereunder. Each of Pinnacle Corp. and Pinnacle agrees that any payment or performance of the Obligations guaranteed by it hereunder or other act that tolls any statute of limitations applicable to enforcement of the Obligations shall similarly operate to toll any statute of limitations applicable to any liability of Pinnacle Corp. or Pinnacle pursuant to this Section 11.17. In addition, to the fullest extent permitted by applicable law, each of Pinnacle Corp. and Pinnacle waives the benefit and advantage of any and all valuation, stay, appraisement, extension or redemption laws which, but for this provision, agreement and waiver, might be applicable to any sale made under this Agreementany judgment, and (ii) all notices which may be required by Law order or decree of any court or otherwise based on the respective guaranty of Pinnacle Corp. and Pinnacle pursuant to preserve intact this Section 11.17. All waivers made by Pinnacle Corp. or Pinnacle in this Section 11.17 are intentional and made by Pinnacle Corp. or Pinnacle, as applicable, after due consideration of all the consequences thereof.
(d) All of the terms and conditions of this Section 11.17 shall be binding upon and shall inure to the benefit of the respective successors and assigns of the Parties; provided that neither Pinnacle Corp. nor Pinnacle may assign, delegate or otherwise transfer any of its rights or obligations hereunder without the prior consent of Seller against Parent, including any demand, presentment or protest, or proof of notice of non-payment under this AgreementDelta.
Appears in 1 contract
Samples: Airline Services Agreement (Pinnacle Airlines Corp)
Parent Guarantee. (a) Parent hereby unconditionally irrevocably and irrevocably unconditionally, as primary obligor and not merely as surety, guarantees to the Buyers the full and promises to Seller, in order to induce Seller to enter into this Agreement (i) the timely payment by Buyer the Sellers when due of any obligation of the Purchase Price and any other amounts payable by Buyer to Seller Sellers pursuant to this Agreement when and to the extent the same shall become due and payable, and (ii) is required to be paid by the performance, fulfillment and observance of each agreement, condition, covenant, obligation and undertaking of Buyer and the Company (as owned by Buyer after the Closing) under this Agreement and all Ancillary Agreements or agreement executed in connection with this Agreement, on Sellers pursuant to the terms and subject to the conditions set forth therein (collectively, the "Guaranteed Obligations"). If Buyer or the Company (as owned by Buyer after the Closing) shall fail to pay any amounts due under this Agreement when and to the extent the same shall become due and payable, or shall fail to perform, fulfill or observe any of the Guaranteed Obligations in the manner provided in this Agreement or any relevant Ancillary Agreements or agreement executed in connection with this Agreement, Parent will upon written demand from Seller promptly pay or cause to be paid such amount to Seller or perform, fulfill or observe or cause to be performed, fulfilled or observed such Guaranteed Obligation, as the case may be. The 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 Seller to enforce payment or performance by Buyerlimitations thereof.
(b) The Guaranteed Obligations under this guaranty are absolute Parent hereby represents and unconditional, are not subject warrants to any counterclaim, setoff, deduction, abatement or defense based upon any claim Parent or Buyer may have against Seller, the Buyers as of the date hereof and shall remain in full force and effect without regard to as of the Closing as follows:
(i) any agreement or modification Parent has all requisite power and authority to any of the terms enter into this Agreement and to perform its obligations under this Agreement. The execution and delivery of this Agreement or any other agreement which may hereafter be made relating theretoby Parent and the performance by Parent of its obligations under this Agreement have been duly authorized by all necessary action on the part of Parent. This Agreement has been duly executed and delivered by Parent and constitutes the valid and binding obligation of Parent, in each case enforceable against Parent in accordance with the terms its terms, subject, as to enforcement, to (A) applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereinafter in effect affecting creditors’ rights generally and (B) general principles of this Agreement, equity; and
(ii) any exercise, non-exercise or waiver by Seller of any right, power, privilege or remedy under or in respect The execution and delivery of this AgreementAgreement does not, and the performance by Parent of its obligations under this Agreement shall not, (iiiA) conflict with, or result in any insolvencyviolation or breach of, bankruptcyany provision of the organizational documents of Parent, dissolution(B) conflict with or violate any Law applicable to Parent, liquidation(C) result in a violation or breach of, reorganization or the like constitute (with or without notice or lapse of time or both) a default under any material contract to which Parent or Buyer at any timeis a party, or (ivD) absence of require any notice tomaterial notices, reports or other filings by Parent with, nor any material consents by any Governmental Entity or other Person, except for any notice, report or other filing by Parent with, or knowledge any consent by, Parent of any Governmental Entity or other Person where the existence failure to make such notice, report or occurrence of any of the matters other filing with, or events set forth obtain such consent of, such Governmental Entity or other Person would not, individually or in the foregoing subparagraphs (i) through (iii). Parent will continue aggregate, reasonably be expected to own all impair or delay Parent’s performance of the outstanding equity or membership interests of Buyer, and maintain the legal existence of Buyer, and upon any dissolution, liquidation or reorganization of Buyer at any time, Parent shall directly and unconditionally assume all payment and performance Guaranteed Obligations of Buyer under this Agreement or otherwiseits obligations hereunder.
(c) Parent unconditionally waives shall not assign (iwhether by operation of law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of the Buyers. Any attempted assignment in violation of this section shall be null and all notice of defaultvoid; provided, non-performance or non-payment under that, notwithstanding anything to the contrary contained in this Agreement, and (ii) all notices which may be required nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by Law or otherwise to preserve intact any rights means of Seller against Parent, including any demand, presentment or protesta majority of its equity securities, or proof all or substantially all of notice its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of non-payment under this Agreementsubstantially all of Parent’s assets shall expressly assume in writing Parent’s obligations hereunder, a copy of which written assumption agreement shall be provided to the Buyers.
Appears in 1 contract
Samples: Equity Purchase Agreement (Twin River Worldwide Holdings, Inc.)
Parent Guarantee. (a) Parent hereby unconditionally irrevocably and irrevocably unconditionally, as primary obligor and not merely as surety, guarantees to Buyers the full and promises to Seller, in order to induce Seller to enter into this Agreement (i) the timely payment by Buyer the Sellers when due of any obligation of the Purchase Price and any other amounts payable by Buyer to Seller Sellers pursuant to this Agreement when and to the extent the same shall become due and payable, and (ii) is required to be paid by the performance, fulfillment and observance of each agreement, condition, covenant, obligation and undertaking of Buyer and the Company (as owned by Buyer after the Closing) under this Agreement and all Ancillary Agreements or agreement executed in connection with this Agreement, on Sellers pursuant to the terms and subject to the conditions set forth therein (collectively, the "Guaranteed Obligations"). If Buyer or the Company (as owned by Buyer after the Closing) shall fail to pay any amounts due under this Agreement when and to the extent the same shall become due and payable, or shall fail to perform, fulfill or observe any of the Guaranteed Obligations in the manner provided in this Agreement or any relevant Ancillary Agreements or agreement executed in connection with this Agreement, Parent will upon written demand from Seller promptly pay or cause to be paid such amount to Seller or perform, fulfill or observe or cause to be performed, fulfilled or observed such Guaranteed Obligation, as the case may be. The 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 Seller to enforce payment or performance by Buyerlimitations thereof.
(b) The Guaranteed Obligations under this guaranty are absolute Parent hereby represents and unconditional, are not subject warrants to any counterclaim, setoff, deduction, abatement or defense based upon any claim Parent or Buyer may have against Seller, Buyers as of the date hereof and shall remain in full force and effect without regard to as of the Closing as follows:
(i) any agreement or modification Parent has all requisite power and authority to any of the terms enter into this Agreement and to perform its obligations under this Agreement. The execution and delivery of this Agreement or any other agreement which may hereafter be made relating theretoby Parent and the performance by Parent of its obligations under this Agreement have been duly authorized by all necessary action on the part of Parent. This Agreement has been duly executed and delivered by Parent and constitutes the valid and binding obligation of Parent, in each case enforceable against Parent in accordance with the terms its terms, subject, as to enforcement, to (A) applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereinafter in effect affecting creditors’ rights generally and (B) general principles of this Agreement, equity; and
(ii) any exercise, non-exercise or waiver by Seller of any right, power, privilege or remedy under or in respect The execution and delivery of this AgreementAgreement does not, and the performance by Parent of its obligations under this Agreement will not, (iiiA) conflict with, or result in any insolvencyviolation or breach of, bankruptcyany provision of the organizational documents of Parent, dissolution(B) conflict with or violate any Law applicable to the Parent, liquidation(C) result in a violation or breach of, reorganization or the like constitute (with or without notice or lapse of time or both) a default under any material contract to which Parent or Buyer at any timeis a party, or (ivD) absence of require any notice tomaterial notices, reports or other filings by Parent with, nor any material consents by any Governmental Entity or other Person, except for any notice, report or other filing by Parent with, or knowledge any consent by, Parent of any Governmental Entity or other Person where the existence failure to make such notice, report or occurrence of any of the matters other filing with, or events set forth obtain such consent of, such Governmental Entity or other Person would not, individually or in the foregoing subparagraphs (i) through (iii). Parent will continue aggregate, reasonably be expected to own all impair or delay Parent’s performance of the outstanding equity or membership interests of Buyer, and maintain the legal existence of Buyer, and upon any dissolution, liquidation or reorganization of Buyer at any time, Parent shall directly and unconditionally assume all payment and performance Guaranteed Obligations of Buyer under this Agreement or otherwiseits obligations hereunder.
(c) Parent unconditionally waives shall not assign (iwhether by operation of law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Buyers. Any attempted assignment in violation of this section shall be null and all notice of defaultvoid; provided, non-performance or non-payment under that, notwithstanding anything to the contrary contained in this Agreement, and (ii) all notices which may be required nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by Law or otherwise to preserve intact any rights means of Seller against Parent, including any demand, presentment or protesta majority of its equity securities, or proof all or substantially all of notice its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of non-payment under this Agreementsubstantially all of Parent’s assets shall expressly assume in writing Parent’s obligations hereunder, a copy of which written assumption agreement shall be provided to Buyers.
Appears in 1 contract
Samples: Equity Purchase Agreement (Twin River Worldwide Holdings, Inc.)
Parent Guarantee. (a) The Parent hereby unconditionally and irrevocably guarantees and promises to Seller, in order to induce Seller to enter into this Agreement (i) absolutely, unconditionally and irrevocably, guarantees to the Administrative Agent for the ratable benefit of the Lenders and their respective successors, endorsees, transferees and assigns, the prompt and complete payment and performance by the Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Secured Obligations and (ii)indemnifies and holds harmless each Lender from, and agrees to pay to such Lender, all reasonable costs and expenses (including reasonable counsel fees and expenses) incurred by such Lender in enforcing any of its rights under the guarantee contained in this Section 8.01. The Parent agrees that notwithstanding any stay, injunction or other prohibition preventing the payment by Buyer the Borrower of all or any portion of the Purchase Price Secured Obligations and notwithstanding that all or any other amounts portion of the Secured Obligations may be unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Borrower, such Secured Obligations shall nevertheless be due and payable by Buyer to Seller pursuant to the Parent for the purposes of this Agreement when and guarantee at the time such Secured Obligations would by payable by the Borrower under the provisions of this Agreement. Notwithstanding the foregoing, any enforcement of this guarantee with respect to the extent rights of any Lender shall be accomplished by the same shall become due and payable, and (ii) the performance, fulfillment and observance Administrative Agent acting on behalf of each agreement, condition, covenant, obligation and undertaking of Buyer and the Company (as owned by Buyer after the Closing) under this Agreement and all Ancillary Agreements or agreement executed in connection with this Agreement, on the terms and subject to the conditions set forth therein (collectively, the "Guaranteed Obligations")such Lender. If Buyer or the Company (as owned by Buyer after the Closing) shall fail to pay any amounts due under this Agreement when and to the extent the same shall become due and payable, or shall fail to perform, fulfill or observe any of the Guaranteed Obligations in the manner provided The guarantee contained in this Agreement or any relevant Ancillary Agreements or agreement executed in connection with this Agreement, Parent will upon written demand from Seller promptly pay or cause to be paid such amount to Seller or perform, fulfill or observe or cause to be performed, fulfilled or observed such Guaranteed Obligation, as the case may be. The Guaranteed Obligations under this guaranty shall constitute an absolute and unconditional present and continuing Section 8.01 is a guarantee of payment and performance to not collection, and the extent provided herein liability of the Parent is primary and not of collectability, and shall not be contingent upon any attempt by Seller to enforce payment or performance by Buyersecondary.
(b) The Guaranteed Parent agrees that if the maturity of the Secured Obligations under is accelerated by bankruptcy or otherwise, such maturity shall also be deemed accelerated for the purpose of this guaranty are absolute and unconditional, are not subject guarantee without demand or notice to any counterclaim, setoff, deduction, abatement or defense based upon any claim Parent or Buyer may have against Seller, the Parent. The guarantee contained in this Section 8.01 is a continuing guarantee and shall remain in full force and effect without regard to (i) any agreement or modification to any until all the Secured Obligations and the obligations of the terms Parent under the guarantee contained in this Section 8.01 shall have been satisfied by payment in full in cash, no Letter of Credit shall be outstanding and the Committed Amount and Maximum Amount shall be terminated, notwithstanding that from time to time during the term of this Agreement or the Borrower may be free from any other agreement which may hereafter be made relating thereto, in each case in accordance with the terms of this Agreement, (ii) any exercise, non-exercise or waiver by Seller of any right, power, privilege or remedy under or in respect of this Agreement, (iii) any insolvency, bankruptcy, dissolution, liquidation, reorganization or the like of Parent or Buyer at any time, or (iv) absence of any notice to, or knowledge by, Parent of the existence or occurrence of any of the matters or events set forth in the foregoing subparagraphs (i) through (iii). Parent will continue to own all of the outstanding equity or membership interests of Buyer, and maintain the legal existence of Buyer, and upon any dissolution, liquidation or reorganization of Buyer at any time, Parent shall directly and unconditionally assume all payment and performance Guaranteed Obligations of Buyer under this Agreement or otherwiseSecured Obligations.
(c) Parent unconditionally waives (i) No payment made by the Borrower, the Parent, any and all notice other guarantor or any other Person or received or collected by any Lender from the Borrower, the Parent, any other guarantor or any other Person by virtue of defaultany action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Secured Obligations shall be deemed to modify, non-performance or non-payment under this Agreementreduce, and (ii) all notices which may be required by Law release or otherwise affect the liability of the Parent hereunder which shall, notwithstanding any such payment (other than any payment made by the Borrower or Parent in respect of the Secured Obligations or any payment received or collected from the Borrower or Parent in respect of the Secured Obligations), remain liable for the Secured Obligations until, subject to preserve intact any rights Section 8.05, the Secured Obligations are paid in full in cash, no Letter of Seller against Parent, including any demand, presentment or protest, or proof of notice of non-payment under this AgreementCredit shall be outstanding and the Committed Amount and the Maximum Amount are terminated.
Appears in 1 contract
Samples: Credit Agreement (Genesis Energy Lp)
Parent Guarantee. (a) Parent hereby unconditionally and irrevocably guarantees and promises Subject to Seller, in order to induce Seller to enter into this Agreement (i) the payment by Buyer of the Purchase Price and any other amounts payable by Buyer to Seller pursuant to this Agreement when and to the extent the same shall become due and payable, and (ii) the performance, fulfillment and observance of each agreement, condition, covenant, obligation and undertaking of Buyer and the Company (as owned by Buyer after the Closing) under this Agreement and all Ancillary Agreements or agreement executed in connection with this Agreement, on the terms and subject to the conditions set forth therein (collectively, the "Guaranteed Obligations"). If Buyer or the Company (as owned by Buyer after the Closing) shall fail to pay any amounts due under this Agreement when and to the extent the same shall become due and payable, or shall fail to perform, fulfill or observe any of the Guaranteed Obligations in the manner provided in this Agreement or any relevant Ancillary Agreements or agreement executed in connection with this Agreement, Parent will upon written demand from Seller promptly pay or cause to be paid such amount to Seller or perform, fulfill or observe or cause to be performed, fulfilled or observed such Guaranteed Obligation, as the case may be. The 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 Seller to enforce payment or performance by Buyer.
(b) The Guaranteed Obligations under this guaranty are absolute and unconditional, are not subject to any counterclaim, setoff, deduction, abatement or defense based upon any claim Parent or Buyer may have against Seller, and shall remain in full force and effect without regard to (i) any agreement or modification to any of the terms of this Agreement Parent Guarantee, Parent hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee, the Collateral Agent and their respective successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes, the Collateral Agreements or the obligations of the Company hereunder or thereunder, that:
(1) the principal of, premium, if any, and interest on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders, the Trustee or the Collateral Agent hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of any Notes or any of such other agreement which may hereafter obligations, that same will be made relating thereto, promptly paid in each case full when due or performed in accordance with the terms of this Agreementthe extension or renewal, (ii) any exercisewhether at stated maturity, non-exercise by acceleration or waiver by Seller otherwise. Failing payment when due of any rightamount so guaranteed or any performance so guaranteed for whatever reason, powerthe Parent, privilege together with the Subsidiary Guarantors, will be jointly and severally obligated to pay the same immediately. Parent agrees that this is a guarantee of payment and not a guarantee of collection.
(b) Parent hereby agrees that its obligations hereunder are unconditional, irrespective of the validity, regularity or remedy under enforceability of the Notes or in respect of this AgreementIndenture, (iii) any insolvency, bankruptcy, dissolution, liquidation, reorganization or the like of Parent or Buyer at any time, or (iv) absence of any notice toaction to enforce the same, any waiver or knowledge by, Parent consent by any Holder of the existence Notes with respect to any provisions hereof or occurrence thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Parent hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the matters or events set forth Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Parent Guarantee will not be discharged except by complete performance of the obligations contained in the foregoing subparagraphs (i) through (iii). Parent will continue to own all of the outstanding equity or membership interests of Buyer, Notes and maintain the legal existence of Buyer, and upon any dissolution, liquidation or reorganization of Buyer at any time, Parent shall directly and unconditionally assume all payment and performance Guaranteed Obligations of Buyer under this Agreement or otherwiseIndenture.
(c) If any Holder, the Trustee or the Collateral Agent is required by any court or otherwise to return to the Company, Parent unconditionally waives or any custodian, trustee, liquidator or other similar official acting in relation to either the Company, Parent or the Subsidiary Guarantors, any amount paid by either to the Trustee, the Collateral Agent or such Holder, this Parent Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(id) Parent further agrees that, as between itself and the Subsidiary Guarantors, on the one hand, and the Holders, the Trustee and the Collateral Agent, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of this Parent Guarantee, notwithstanding any and all notice stay, injunction or other prohibition preventing such acceleration in respect of default, non-performance or non-payment under this Agreementthe obligations guaranteed hereby, and (ii2) all notices which may be required in the event of any declaration of acceleration of such obligations as provided in Article 6 of the Indenture, such obligations (whether or not due and payable) will forthwith become due and payable by Law or otherwise Parent for the purpose of this Parent Guarantee.
(e) For the avoidance of doubt, this Parent Guarantee is not a “Guarantee” under the Indenture, and Parent is not intended to preserve intact any rights of Seller against Parent, including any demand, presentment or protest, or proof of notice of non-payment under this Agreementbecome a party to the Indenture.
Appears in 1 contract
Parent Guarantee. (a) The Parent Guarantor hereby unconditionally covenants and irrevocably guarantees agrees that it will cause the Purchaser to duly comply with and promises to Sellerperform all of its covenants, in order to induce Seller to enter into this Agreement (i) the payment by Buyer of the Purchase Price and any other amounts payable by Buyer to Seller pursuant to this Agreement when and to the extent the same shall become due and payableduties, and (ii) the performanceobligations under, fulfillment and observance of each agreement, condition, covenant, obligation and undertaking of Buyer and the Company (as owned by Buyer after the Closing) under this Agreement and all Ancillary Agreements relating to or agreement executed in connection with this Agreement, on the terms Transaction as and subject to the conditions set forth therein (collectively, the "Guaranteed Obligations"). If Buyer or the Company (as owned by Buyer after the Closing) shall fail to pay any amounts due under this Agreement when and to the extent the same shall become due and payable, or shall fail to perform, fulfill or observe any of the Guaranteed Obligations in the manner provided in this Agreement or any relevant Ancillary Agreements or agreement executed in connection with this Agreement, Parent will upon written demand from Seller promptly pay or cause to be paid such amount to Seller or perform, fulfill or observe or cause to be performed, fulfilled or observed such Guaranteed Obligation, as the case may be. The 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 Seller to enforce payment or performance by Buyerrequired.
(b) The Guaranteed Obligations under this guaranty are absolute Parent Guarantor hereby absolutely, unconditionally and unconditional, are not subject irrevocably guarantees to any counterclaim, setoff, deduction, abatement or defense based upon any claim Parent or Buyer may have against Sellerthe Seller Parties, and shall remain in full force covenants and effect without regard agrees to (i) any agreement or modification to any of the terms of this Agreement or any other agreement which may hereafter be made relating thereto, in each case in accordance jointly and severally liable with the terms Purchaser as principal and not as surety (the “Guarantee”), for the due and punctual payment and performance of this Agreement, (ii) any exercise, non-exercise or waiver by Seller of any right, power, privilege or remedy under or in respect of this Agreement, (iii) any insolvency, bankruptcy, dissolution, liquidation, reorganization or the like of Parent or Buyer at any time, or (iv) absence of any notice to, or knowledge by, Parent of the existence or occurrence of any of the matters or events set forth in the foregoing subparagraphs (i) through (iii). Parent will continue to own all of the outstanding equity or membership interests of BuyerPurchaser’s covenants, duties, and maintain the legal existence of Buyerobligations, and upon any dissolution, liquidation relating to or reorganization of Buyer at any time, Parent shall directly and unconditionally assume all payment and performance Guaranteed Obligations of Buyer under this Agreement or otherwiseotherwise in connection with the Transaction as and when required (the “Guaranteed Obligations”). If the Purchaser fails to perform or pay any Guaranteed Obligation as and when required, then, without the necessity or the requirement for the Seller Parties to pursue or exhaust any recourse against the Purchaser, the Parent Guarantor will perform or pay or cause to be performed or paid such Guaranteed Obligation promptly upon demand. Any and all payment or performance by the Parent Guarantor hereunder shall be made without any set-off, recoupment or counterclaim.
(c) The Parent unconditionally waives Guarantor’s obligations hereunder are direct, independent, and primary, and this Guarantee is absolute and unconditional; provided that, except as otherwise set forth in this Section 7.1, any claim hereunder against the Parent Guarantor shall be subject to, and the Parent Guarantor shall have available to it in defense of any such claim, any and all of the Purchaser’s rights and defenses, whether arising under the Agreement or otherwise, in respect of any such claim. The Parent Guarantor’s obligations under this Guarantee shall, without limitation, constitute a guarantee of payment and performance, binding upon the Parent Guarantor and its successors and permitted assigns and irrevocable, and remain in force until all Guaranteed Obligations have been paid or performed in full and shall not be released or discharged notwithstanding:
(i) any waiver, forbearance or extension of time for performance or payment of any Guaranteed Obligation;
(ii) any delay or failure by the Seller Parties to enforce or exercise any right or remedy in respect of any Guaranteed Obligation;
(iii) any failure to give notice to the Parent Guarantor of the occurrence of a default by the Purchaser in the payment or performance of any of the Guaranteed Obligations;
(iv) the release or discharge of the Purchaser from the performance or observance of any Guaranteed Obligation or any part thereof, or the release, acceptance or disposal of any collateral held by the Seller Parties as security for any of the Guaranteed Obligations or the substitution, release, exchange or invalidity of any security interest held by the Seller Parties as security therefor;
(v) any voluntary or involuntary liquidation or dissolution of the Purchaser;
(vi) the sale or other disposition of all or substantially all of the assets and liabilities of the Purchaser;
(vii) the voluntary or involuntary receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, composition or other similar proceeding affecting the Purchaser; or
(viii) any merger, amalgamation, arrangement, consolidation, or other reorganization to which the Purchaser, the Parent Guarantor or any of their affiliates is a party.
(d) Until all obligations of the Purchaser under, relating to or in connection with the Transaction and all notice obligations of defaultthe Parent Guarantor under this Guarantee are discharged and released: (a) the Parent Guarantor shall not assert against the Purchaser any claim, non-right or remedy, direct or indirect, that the Parent Guarantor now has or may hereafter have against Purchaser in connection with this Guarantee or the performance by Parent Guarantor of its obligations hereunder; and (b) the Parent Guarantor shall not be subrogated to any of the Seller Parties’ rights in the Guaranteed Obligations.
(e) This Guarantee is a continuing guarantee and, in the case of each Guaranteed Obligation requiring the payment of monies, this Guarantee applies to and secures any ultimate balance due or non-remaining due to the Seller Parties; and if, at any time, all or any part of any monies previously applied by the Seller Parties to any Guaranteed Obligation is or must be rescinded or returned by the Seller Parties for any reason whatsoever, such Guaranteed Obligation will, for the purposes hereof, to the extent such payment is or must be rescinded or returned, be deemed to have continued in existence and this Guarantee shall continue to be effective or be reinstated, as applicable, to such Guaranteed Obligation as if such application had not been made.
(f) Payments shall be free and clear of all deductions or withholdings of any kind, except for those required by Law.
(g) In connection with the foregoing Guarantee, the Parent Guarantor hereby represents and warrants to the Seller Parties as follows:
(i) the Parent Guarantor is a corporation duly incorporated and validly existing under the laws of the jurisdiction of its incorporation;
(ii) the Parent Guarantor has the requisite corporate power and authority to enter into and perform its obligations under this Agreement;
(iii) the execution, delivery and performance by the Parent Guarantor of its obligations under this Agreement and the consummation of the Transaction have been duly authorized by all necessary corporate action on the part of the Parent Guarantor and no other corporate proceedings on the part of the Parent Guarantor is necessary to authorize this Agreement or the consummation of the Transaction;
(iv) this Agreement has been duly executed and delivered by the Parent Guarantor and constitutes a legal, valid and binding agreement of the Parent Guarantor enforceable against the Parent Guarantor in accordance with its terms subject only to any limitation under bankruptcy, insolvency or other Laws affecting the enforcement of creditors’ rights generally and the discretion that a court may exercise in the granting of equitable remedies such as specific performance and injunction; and
(v) the execution and delivery of, and performance by the Parent Guarantor of its obligations under this Agreement and the consummation of the Transaction, do not and will not (iior would not with the giving of notice, the lapse of time or the happening of any other event or condition) all notices which may be required by Law or otherwise to preserve intact any rights of Seller against Parentcontravene, including any demand, presentment or protestconflict with, or proof result in any violation or breach of notice of non-payment under this Agreementthe Parent Guarantor’s Constating Documents.
Appears in 1 contract
Samples: Share Purchase Agreement (Rogers Communications Inc)
Parent Guarantee. (a) Parent hereby unconditionally guarantees to Buyer the full and irrevocably guarantees timely payment by Seller of any amount due and promises to Seller, in order to induce payable from Seller to enter into this Agreement (i) the payment by Buyer of the Purchase Price and any other amounts payable by Buyer to Seller pursuant to this Agreement when and to the extent the same shall become due and payable, and (ii) the performance, fulfillment and observance of each agreement, condition, covenant, obligation and undertaking of Buyer and the Company (as owned by Buyer after the Closing) under this Agreement and all Ancillary Agreements or agreement executed in connection with this Agreement, on the terms and subject to the conditions set forth therein (collectively, the "Guaranteed Obligations"). If Buyer or the Company (as owned by Buyer after the Closing) shall fail to pay any amounts due under this Agreement when and to the extent the same shall become due and payable, or shall fail to perform, fulfill or observe any of the Guaranteed Obligations in the manner provided in this Agreement or any relevant Ancillary Agreements or agreement executed in connection with this Agreement, Parent will upon written demand from Seller promptly pay or cause to be paid such amount to Seller or perform, fulfill or observe or cause to be performed, fulfilled or observed such Guaranteed Obligation, as the case may be. The 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 Seller to enforce payment or performance by Buyer.
(b) The Guaranteed Obligations under this guaranty are absolute and unconditional, are not subject to any counterclaim, setoff, deduction, abatement or defense based upon any claim Parent or Buyer may have against Seller, and shall remain in full force and effect without regard to (i) any agreement or modification to any of the terms of this Agreement or any other agreement which may hereafter be made relating thereto, in each case in accordance with the terms of this Agreement, Agreement (ii) and subject to any exercise, non-exercise or waiver by Seller of any right, power, privilege or remedy under or in respect of this Agreement, (iii) any insolvency, bankruptcy, dissolution, liquidation, reorganization or the like of Parent or Buyer at any time, or (iv) absence of any notice to, or knowledge by, Parent of the existence or occurrence of any of the matters or events limitations on Seller’s obligations set forth in herein), including any and all payments required under Article VIII (collectively, the foregoing subparagraphs (i) through (iii“Seller Payment Obligations”). Parent will further unconditionally guarantees to Buyer that if Seller fails to perform any Seller Payment Obligation when due and upon written demand, then Parent shall, upon written demand from Buyer, perform, or cause to be performed, all such Seller Payment Obligations. All payments made by Parent pursuant to the obligations incurred by it under this Section 13.4 shall be paid within ten (10) business days after receipt by Parent from Buyer of written demand for such payment. In the event that Parent fails to make such payment within such time, Buyer may, at its option, immediately proceed against Parent for the performance of the Seller Payment Obligations or to enforce its rights hereunder, without first proceeding against Seller. Parent further agrees that its guarantee shall be an irrevocable guarantee and shall continue in effect notwithstanding any extension or modification of any Seller Payment Obligation, any assumption of any such Seller Payment Obligation by any other party, or any other act or thing which might otherwise operate as a legal or equitable discharge of a guarantor and Parent hereby waives all special suretyship defenses and notice requirements. The obligations, covenants and agreements of Parent hereunder shall not be released, affected or impaired in any way by the voluntary or involuntary liquidation, sale or disposition of any assets of Seller, or the merger or consolidation of Seller with any other person. This guarantee shall be binding upon all successors and assigns of Parent (including but not limited to own any entity or group of entities to which Parent sells, assigns or transfers all or substantially all of the outstanding equity its or membership interests of Buyerits subsidiaries’ assets in one or more related transactions); provided, and maintain the legal existence of Buyerhowever, and upon any dissolution, liquidation or reorganization of Buyer at any time, that no assignment shall release Parent shall directly and unconditionally assume all payment and performance Guaranteed Obligations of Buyer under this Agreement or otherwisefrom its obligations hereunder.
(c) Parent unconditionally waives (i) any and all notice of default, non-performance or non-payment under this Agreement, and (ii) all notices which may be required by Law or otherwise to preserve intact any rights of Seller against Parent, including any demand, presentment or protest, or proof of notice of non-payment under this Agreement.
Appears in 1 contract
Parent Guarantee. (a) Parent hereby unconditionally and irrevocably guarantees and promises to Seller, in order to induce Seller to enter into this Agreement (i) the payment by Buyer of the Purchase Price and any other amounts payable by Buyer to Seller pursuant to this Agreement when and to the extent the same shall become due and payable, and (ii) the performance, fulfillment and observance of each agreement, condition, covenant, obligation and undertaking of Buyer and the Company (as owned by Buyer after the Closing) under this Agreement and all Ancillary Agreements or agreement executed in connection with this Agreement, on the terms and subject to the conditions set forth therein (collectively, the "“Guaranteed Obligations"”). If Buyer or the Company (as owned by Buyer after the Closing) shall fail to pay any amounts due under this Agreement when and to the extent the same shall become due and payable, or shall fail to perform, fulfill or observe any of the Guaranteed Obligations in the manner provided in this Agreement or any relevant Ancillary Agreements or agreement executed in connection with this Agreement, Parent will upon written demand from Seller promptly pay or cause to be paid such amount to Seller or perform, fulfill or observe or cause to be performed, fulfilled or observed such Guaranteed Obligation, as the case may be. The 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 Seller to enforce payment or performance by Buyer.
(b) The Guaranteed Obligations under this guaranty are absolute and unconditional, are not subject to any counterclaim, setoff, deduction, abatement or defense based upon any claim Parent or Buyer may have against Seller, and shall remain in full force and effect without regard to (i) any agreement or modification to any of the terms of this Agreement or any other agreement which may hereafter be made relating thereto, in each case in accordance with the terms of this Agreement, (ii) any exercise, non-exercise or waiver by Seller of any right, power, privilege or remedy under or in respect of this Agreement, (iii) any insolvency, bankruptcy, dissolution, liquidation, reorganization or the like of Parent or Buyer at any time, or (iv) absence of any notice to, or knowledge by, Parent of the existence or occurrence of any of the matters or events set forth in the foregoing subparagraphs (i) through (iii). Parent will continue to own all of the outstanding equity or membership interests of Buyer, and maintain the legal existence of Buyer, and upon any dissolution, liquidation or reorganization of Buyer at any time, Parent shall directly and unconditionally assume all payment and performance Guaranteed Obligations of Buyer under this Agreement or otherwise.
(c) Parent unconditionally waives (i) any and all notice of default, non-performance or non-payment under this Agreement, and (ii) all notices which may be required by Law or otherwise to preserve intact any rights of Seller against Parent, including any demand, presentment or protest, or proof of notice of non-payment under this Agreement.
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Samples: Stock Purchase Agreement (Monarch Casino & Resort Inc)
Parent Guarantee. (a) The Parent hereby unconditionally and irrevocably guarantees to Purchaser the due, prompt and promises to Seller, in order to induce complete performance by the Seller to enter into this Agreement (i) the payment by Buyer of the Purchase Price and any other amounts payable by Buyer to obligations of the Seller pursuant to this Agreement when and to the extent the same shall become due and payable, and (ii) the performance, fulfillment and observance of each agreement, condition, covenant, obligation and undertaking of Buyer and the Company (as owned by Buyer after the Closing) under this Agreement and all Ancillary Agreements or agreement executed in connection with this Agreementaccordance with, on the terms and subject to the conditions set forth therein in, this Agreement (collectively, the "Guaranteed “Obligations"”). .
(b) If Buyer or the Company (as owned by Buyer after the Closing) shall fail Seller fails to pay or perform any amounts due under this Agreement Obligations for which it is liable, when and to the extent as the same shall become due and payablepayable or performable (whether by acceleration or otherwise), or Purchaser shall fail to perform, fulfill or observe any of the Guaranteed Obligations in the manner provided in this Agreement or any relevant Ancillary Agreements or agreement executed in connection with this Agreement, Parent will upon make written demand from on the Seller promptly pay for the payment or cause to be paid performance of such amount to Seller or perform, fulfill or observe or cause to be performed, fulfilled or observed such Guaranteed ObligationObligations, as the case may be. The 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 Seller if Purchaser is unable to enforce obtain such payment or performance by Buyer.
(b) The Guaranteed from the Seller, as the case may be, and such Obligations under this guaranty are absolute and unconditional, are not subject to any counterclaimin dispute between the Seller and Purchaser, setoff, deduction, abatement or defense based upon any claim Parent or Buyer may have against Seller, and shall remain in full force and effect without regard to (i) any agreement or modification to any then after 30 days from the date of the terms of this Agreement or any other agreement which written demand, Purchaser may hereafter be made relating thereto, in each case in accordance with make written demand on the terms of this Agreement, (ii) any exercise, Parent for such non-exercise or waiver by Seller of any right, power, privilege or remedy under or in respect of this Agreement, (iii) any insolvency, bankruptcy, dissolution, liquidation, reorganization or disputed Obligations; provided that the like of Parent or Buyer at any time, or (iv) absence of any notice to, or knowledge by, Parent of the existence or occurrence of any of the matters or events set forth in the foregoing subparagraphs (i) through (iii). Parent will continue shall be entitled to own assert against Purchaser all of the outstanding equity defenses to payment or membership interests performance of Buyerthe Obligation that are available to the Seller. In the event any Obligation is in dispute between the Seller and Purchaser, the Seller and maintain Purchaser must have fully resolved such dispute either by the legal existence agreement of Buyerthe Seller or Purchaser or pursuant to final resolution of the dispute through litigation or arbitration before Purchaser shall be entitled to make written demand on the Parent pursuant to this Section 9.15. Subject to the preceding sentence, in the event that Purchaser makes a demand on the Parent for an Obligation that is the subject of a dispute between the Seller and upon any dissolutionPurchaser, liquidation or reorganization of Buyer at any time, the Parent shall directly and unconditionally assume all payment and performance Guaranteed Obligations of Buyer have no obligation under this Agreement to pay or otherwiseperform, as the case may be, such Obligation until such dispute is resolved either by the agreement of the Seller or Purchaser or pursuant to final resolution of the dispute through litigation or arbitration.
(c) Parent unconditionally waives (iNothing in this Agreement shall be deemed to guarantee any obligation of the Seller other than as specifically stated in Section 9.15(a) any and all notice other than the Seller’s Obligations and arising out of default, non-performance or non-payment under this Agreement, and (ii) all notices which may be required by Law or otherwise to preserve intact any rights of Seller against Parent, including any demand, presentment or protest, or proof of notice of non-payment under this Agreement.
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Samples: Purchase and Sale Agreement (Inland Diversified Real Estate Trust, Inc.)
Parent Guarantee. (a) In consideration of the substantial direct and indirect benefits derived by Parent hereby unconditionally from the transactions contemplated in this Agreement, and irrevocably guarantees and promises to Seller, in order to induce Seller Buyer to enter into this Agreement and consummate the transactions contemplated in this Agreement, Parent, as principal obligor and not merely as surety, hereby absolutely, unconditionally and irrevocably guarantees to Buyer and the other Buyer Indemnitees the full and timely performance of Seller’s obligations (iincluding all indemnification and payment obligations) incurred in connection with this Agreement or any agreement, certificate, instrument or other document required to be delivered hereunder, in each case as the payment by Buyer same is now or may hereafter be in effect (collectively, the “Seller Obligations”). Parent acknowledges and agrees that: (a) this guaranty is irrevocable, absolute and unconditional, is a guaranty of performance and not merely of collection and is in no way conditioned or contingent upon any attempt to collect from Seller; and (b) no extension, increase, modification, amendment, waiver, consent, release or extinguishment of any of the Purchase Price Seller Obligations, or other change in any Seller Obligation, whether by agreement of Buyer and Seller, decree in any other amounts payable by Buyer to Seller pursuant to bankruptcy proceeding or otherwise, shall affect the continuing validity and enforceability of this Agreement when and to the extent the same shall become due and payableguaranty, and (ii) such validity and enforceability shall not be affected by any lack of validity or enforceability of any Seller Obligation as a result of the performanceapplication of any bankruptcy, fulfillment insolvency, moratorium or other similar Law relating to creditors’ rights and observance general principles of each agreementequity to Seller. Parent hereby waives, condition, covenant, obligation and undertaking for the benefit of Buyer and the Company (as owned other Buyer Indemnitees, to the fullest extent not prohibited by Law, any defenses or benefits that may be derived from or afforded by law that limit the liability of or exonerate guarantors or sureties, including those which would otherwise require any election of remedies by Buyer after and the Closing) under this Agreement other Buyer Indemnitees, and all Ancillary Agreements Parent further waives any notice (including notice of acceptance or agreement executed in connection with this Agreementnonpayment), on presentment, demand, performance, protest, suit or other action as the terms and subject same pertains to Seller or any of the conditions set forth therein (collectivelySeller Obligations, the "Guaranteed Obligations"). If or any right to require Buyer or any other Buyer Indemnitee to proceed against Seller or to exhaust any security held by Buyer or the Company (as owned by other Buyer after the Closing) shall fail Indemnitee or to pay pursue any amounts due under this Agreement when and to the extent the same shall become due and payable, or shall fail to perform, fulfill or observe any of the Guaranteed Obligations in the manner provided in this Agreement or any relevant Ancillary Agreements or agreement executed in connection other remedy with this Agreement, Parent will upon written demand from Seller promptly pay or cause to be paid such amount to Seller or perform, fulfill or observe or cause to be performed, fulfilled or observed such Guaranteed Obligation, as the case may be. The 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 Seller to enforce payment or performance by Buyer.
(b) The Guaranteed Obligations under this guaranty are absolute and unconditional, are not subject to any counterclaim, setoff, deduction, abatement or defense based upon any claim Parent or Buyer may have against Seller, and shall remain in full force and effect without regard to (i) any agreement or modification respect to any of the terms Seller Obligations. Buyer may at any time and from time to time without notice to or consent of Parent and without impairing or releasing the obligations of Parent under this Agreement or guaranty, agree with Seller to make any other agreement which may hereafter be made relating thereto, change in each case in accordance with the terms of this Agreement, (ii) any exercise, non-exercise or waiver by the Seller of any right, power, privilege or remedy under or in respect of this Agreement, (iii) any insolvency, bankruptcy, dissolution, liquidation, reorganization or the like of Parent or Buyer at any time, or (iv) absence of any notice to, or knowledge by, Parent of the existence or occurrence of any of the matters or events set forth in the foregoing subparagraphs (i) through (iii). Parent will continue to own all of the outstanding equity or membership interests of Buyer, and maintain the legal existence of Buyer, and upon any dissolution, liquidation or reorganization of Buyer at any time, Parent shall directly and unconditionally assume all payment and performance Guaranteed Obligations of Buyer under this Agreement or otherwiseObligations.
(c) Parent unconditionally waives (i) any and all notice of default, non-performance or non-payment under this Agreement, and (ii) all notices which may be required by Law or otherwise to preserve intact any rights of Seller against Parent, including any demand, presentment or protest, or proof of notice of non-payment under this Agreement.
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Parent Guarantee. Section 1301 Parent Guarantee The Parent hereby unconditionally guarantees to each Holder of a Subsidiary Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes, the Units or the obligations of the Subsidiary Issuer or the Parent hereunder or thereunder, that: (a) Parent hereby unconditionally the principal of, premium, if any, and irrevocably guarantees interest on the Subsidiary Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and promises to Sellerinterest on the overdue principal of, in order to induce Seller to enter into this Agreement (i) premium, and interest on the payment by Buyer Subsidiary Notes, if any, if lawful, and all other obligations of the Purchase Price and any other amounts payable by Buyer to Seller pursuant to this Agreement when and Subsidiary Issuer to the extent Holders or the same shall become due and payableTrustee hereunder or thereunder will be promptly paid in full or performed, and (ii) the performance, fulfillment and observance of each agreement, condition, covenant, obligation and undertaking of Buyer and the Company (as owned by Buyer after the Closing) under this Agreement and all Ancillary Agreements or agreement executed in connection accordance with this Agreement, on the terms hereof and subject to the conditions set forth therein (collectively, the "Guaranteed Obligations"). If Buyer or the Company (as owned by Buyer after the Closing) shall fail to pay any amounts due under this Agreement when thereof; and to the extent the same shall become due and payable, or shall fail to perform, fulfill or observe any of the Guaranteed Obligations in the manner provided in this Agreement or any relevant Ancillary Agreements or agreement executed in connection with this Agreement, Parent will upon written demand from Seller promptly pay or cause to be paid such amount to Seller or perform, fulfill or observe or cause to be performed, fulfilled or observed such Guaranteed Obligation, as the case may be. The 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 Seller to enforce payment or performance by Buyer.
(b) The Guaranteed Obligations under this guaranty are absolute and unconditionalin case of any extension of time of payment or renewal of any Subsidiary Notes or any of such other obligations, are not subject to any counterclaim, setoff, deduction, abatement or defense based upon any claim Parent or Buyer may have against Seller, and shall remain that same will be promptly paid in full force and effect without regard to (i) any agreement when due or modification to any of the terms of this Agreement or any other agreement which may hereafter be made relating thereto, in each case performed in accordance with the terms of this Agreementthe extension or renewal, (ii) any exercisewhether at stated maturity, non-exercise by acceleration or waiver by Seller otherwise. Failing payment when due of any rightamount so guaranteed or any performance so guaranteed for whatever reason, powerthe Parent shall be obligated to pay the same immediately. The Parent agrees that this Parent Guarantee is a general unsecured senior subordinated obligation of the Parent and it is a guarantee of payment and not a guarantee of collection. The Parent hereby agrees that its obligations hereunder shall be unconditional, privilege irrespective of the validity, regularity or remedy under enforceability of the Notes, the Units or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Subsidiary Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Subsidiary Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. The Parent hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Subsidiary Issuer, any right to require a proceeding first against the Subsidiary Issuer, protest, notice and all demands whatsoever and covenants that this Parent Guarantee shall not be discharged except by complete performance of the obligations contained in the Subsidiary Notes, the Units and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Subsidiary Issuer, the Parent, or any custodian, trustee, liquidator or other 105 similar official acting in relation to either the Subsidiary Issuer or the Parent any amount paid by the Subsidiary Issuer or the Parent either to the Trustee or such Holder, this Parent Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. The Parent agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of this Agreementany obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. The Parent further agrees that, as between the Parent, on the one hand, and the Holders and the Trustee, on the other hand, (iiix) any insolvency, bankruptcy, dissolution, liquidation, reorganization or the like of Parent or Buyer at any time, or (iv) absence of any notice to, or knowledge by, Parent maturity of the existence obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the purposes of this Parent Guarantee, notwithstanding any stay, injunction or occurrence of any other prohibition preventing such acceleration in respect of the matters or events set forth in the foregoing subparagraphs (i) through (iii). Parent will continue to own all of the outstanding equity or membership interests of Buyer, and maintain the legal existence of Buyer, and upon any dissolution, liquidation or reorganization of Buyer at any time, Parent shall directly and unconditionally assume all payment and performance Guaranteed Obligations of Buyer under this Agreement or otherwise.
(c) Parent unconditionally waives (i) any and all notice of default, non-performance or non-payment under this Agreementobligations guaranteed hereby, and (iiy) all notices which may be required in the event of any declaration of acceleration of such obligations as provided in Article Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by Law or otherwise to preserve intact any rights the Parent for the purpose of Seller against this Parent Guarantee. Section 1302 Limitation of Parent's Liability under Parent Guarantee The Parent, and by its acceptance hereof each Holder, hereby confirm that it is the intention of all such parties that the Parent Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Federal Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law. To effectuate the foregoing intention, the Holders and the Parent hereby irrevocably agree that the obligations of the Parent under the Parent Guarantee will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities including, but not limited to, Senior Indebtedness of the Parent, result in the obligations of the Parent under its Parent Guarantee not constituting such a fraudulent conveyance or fraudulent transfer. This Section 1302 is for the benefit of the creditors of the Parent. Section 1303 Subordination of Parent Guarantee The obligations of the Parent under the Parent Guarantee pursuant to this Article Thirteen shall be subordinated in right of payment to the prior payment in full of all the obligations of the Parent under its Senior Indebtedness (including any demandguarantees constituting Senior Indebtedness and any Designated Senior Indebtedness of the Parent) on the same basis as the Parent Notes are subordinated to the Senior Indebtedness of the Parent. For the purposes of the foregoing sentence, presentment the Trustee and the Holders shall have the right to receive and/or retain payments by the Parent under the Parent Guarantee only at such times as they may receive and/or retain payments in respect of the Parent Notes pursuant to this Indenture, including Article Twelve hereof. Section 1304 Defeasance of this Article Thirteen The subordination of the Parent Guarantee provided by this Article is expressly made subject to the provisions for defeasance or protestcovenant defeasance in Article Fifteen hereof and, anything herein to the contrary notwithstanding, upon the effectiveness of any such defeasance or proof of notice of non-payment under covenant defeasance, the Subsidiary Notes then outstanding shall thereupon cease to be subordinated pursuant to this AgreementArticle."
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Parent Guarantee. (a) Parent hereby unconditionally and irrevocably guarantees and promises to Seller, in order to induce Seller to enter into this Agreement (i) the payment by Buyer of the Purchase Price and any other amounts payable by Buyer to Seller pursuant to this Agreement when and to the extent the same shall become due and payable, and (ii) the performance, fulfillment and observance of each agreement, condition, covenant, obligation and undertaking of Buyer and the Company (as owned by Buyer after the Closing) under this Agreement and all Ancillary Agreements agreements ancillary thereto or agreement executed in connection with this Agreementtherewith, on the terms and subject to the conditions set forth therein (collectively, the "“Guaranteed Obligations"”). If Buyer or the Company (as owned by Buyer after the Closing) shall fail to pay any amounts due under this Agreement when and to the extent the same shall become due and payable, or shall fail to perform, fulfill or observe any of the Guaranteed Obligations in the manner provided in this Agreement or any relevant Ancillary Agreements or agreement executed in connection with this Agreementancillary agreement, Parent will upon written demand from Seller promptly pay or cause to be paid such amount to Seller or perform, fulfill or observe or cause to be performed, fulfilled or observed such Guaranteed Obligation, as the case may be. The 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 Seller to enforce payment or performance by Buyer.
(b) The Guaranteed Obligations under this guaranty are absolute and unconditional, are not subject to any counterclaim, setoff, deduction, abatement or defense based upon any claim Parent or Buyer may have against Seller, and shall remain in full force and effect without regard to (i) any agreement or modification to any of the terms of this Agreement or any other agreement which may hereafter be made relating thereto, in each case in accordance with the terms of this Agreement, ; (ii) any exercise, non-exercise or waiver by Seller of any right, power, privilege or remedy under or in respect of this Agreement, ; (iii) any insolvency, bankruptcy, dissolution, liquidation, reorganization or the like of Parent or Buyer at any time, ; or (iv) absence of any notice to, or knowledge by, Parent of the existence or occurrence of any of the matters or events set forth in the foregoing subparagraphs subdivisions (i) through (iii). Parent will continue to own all of the outstanding equity or membership interests of Buyer, and maintain the legal existence of Buyer, and upon any dissolution, liquidation or reorganization of Buyer at any time, Parent shall directly and unconditionally assume all payment and performance Guaranteed Obligations of Buyer under this Agreement or otherwise.
(c) Parent unconditionally waives (i) any and all notice of default, non-performance or non-payment under this Agreement, Agreement and (ii) all notices which may be required by Law statute, rule of law or otherwise to preserve intact any rights of Seller against Parent, including including, without limitation, any demand, presentment or protest, or proof of notice of non-payment under this Agreement.
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