Parent Guaranty. (a) Parent hereby irrevocably and unconditionally guarantees to Seller and the Company the full and timely performance, payment and discharge by Buyer of all obligations and liabilities of Buyer in accordance with the terms of this Agreement now existing or hereafter arising under this Agreement, and hereby agrees that in the event Buyer fails to timely perform and discharge in full any obligation or Liability of Buyer in accordance with the terms of this Agreement, Parent will forthwith perform and discharge any such obligation or Liability in accordance with the terms of this Agreement, as the case may be, as such payment or performance and discharge is required pursuant to the terms of this Agreement to be made or done by Buyer. The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and of performance of obligations and not of collectability; provided that it shall not be necessary for Seller or the Company, in order to enforce such payment or performance by Parent, first to institute suit or exhaust its remedies against Buyer or any other Person liable with respect to obligations of Buyer under this Agreement. (b) The obligations of Parent under this Section 12.19 shall be absolute, continuing and unconditional and shall not be released, discharged or affected in any way, including by any (i) any bankruptcy, insolvency, readjustment, composition, liquidation, dissolution or similar proceeding with respect to Buyer or any of its Affiliates, (ii) any merger, division, amalgamation or consolidation of Buyer into or with any other corporation or partnership or any sale, lease or transfer of any or all of the assets of Parent or of Buyer to any Person, (iii) any failure on the part of Buyer for any reason to comply with or perform any of the terms of any other agreement with Parent, (iv) the settlement or compromise of any obligations under this Agreement, or (v) any other circumstance that might otherwise constitute a legal or equitable discharge of a guarantor. (c) Parent unconditionally waives, to the fullest extent permitted by law: (i) notice of acceptance hereof, of any action taken or omitted in reliance hereon and of any defaults by Buyer in the payment or performance of this Agreement; (ii) all notices that may otherwise be required by statute, rule of law or otherwise to preserve any of the rights of Seller or the Company against Parent, including, presentment to or demand for payment from Buyer or Parent, notice to Buyer or to Parent of default or protest for nonpayment or dishonor, and the filing of claims with a court in the event of the bankruptcy of Buyer; (iii) any right to the enforcement, assertion or exercise by Seller or the Company of any right, power or remedy conferred in this Agreement (iv) any requirement of diligence on the part of Seller; and (v) any other act or omission (including any delay by Seller or any other Person in the taking of any action) that might in any manner or to any extent vary the risk of Parent or that might otherwise operate as a discharge of Parent. To the maximum extent lawful, Parent waives all rights by which it might be entitled to require suit on an accrued right of action in respect of any obligation under this Agreement or require suit against Buyer or others, arising under any legal requirement or otherwise. (d) Parent shall maintain unrestricted cash on hand equal to no less than $45,000,000.
Appears in 1 contract
Parent Guaranty. Subject to the provisions of this Section 6.11, Parent hereby irrevocably, absolutely and unconditionally guarantees (a) Parent hereby irrevocably and unconditionally guarantees to Seller and the Company the full and punctual payment of any amount due and payable by Seller under this Agreement and under each other Transaction Document to which Seller is a party, and (b) the timely performance, payment satisfaction and discharge by Buyer performance of all of Seller’s covenants, agreements and obligations and liabilities of Buyer contained in accordance with the terms of this Agreement now existing and each other Transaction Document to which Seller is a party. Upon any failure by Seller to pay punctually or hereafter arising credit to the applicable Person any such amount referred to in the foregoing clause (a), Parent shall, forthwith upon written demand of Buyer, pay the amount not so paid; provided however that any and all defenses or counterclaims available to Seller, including under this Agreement, and hereby agrees that in the event Buyer fails any other Transaction Document or applicable Law, shall also be available to timely perform and discharge in full any obligation or Liability of Buyer in accordance with the terms of this Agreement, Parent will forthwith perform and discharge any such obligation or Liability in accordance with the terms of this Agreement, as the case may be, as such payment or performance and discharge is required pursuant Parent. Subject to the terms of this Agreement to be made or done by Buyer. The guaranty in immediately preceding sentence, the preceding sentence is an absolute, present and continuing guaranty of payment and of performance of obligations and not of collectability; provided that it shall not be necessary for Seller or the Company, in order to enforce such payment or performance by Parent, first to institute suit or exhaust its remedies against Buyer or any other Person liable with respect to obligations of Buyer under this Agreement.
(b) The obligations of Parent under this Section 12.19 6.11 shall be absolute, continuing and unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected in any way, including by any (i) any bankruptcyextension, insolvencyrenewal, readjustmentsettlement, compositioncompromise, liquidationwaiver or release in respect of any obligation of Seller, dissolution by operation of Law or similar proceeding with respect otherwise, unless and to the extent Buyer consents to any such extension, renewal, settlement, compromise, waiver or any of its Affiliatesrelease, (ii) any merger, division, amalgamation modification or consolidation amendment of Buyer into or with any other corporation or partnership supplement to this Agreement or any sale, lease or transfer of any or all of the assets of Parent or of Buyer Transaction Document to any Personwhich Seller is a Party, (iii) any failure on change in the part corporate existence, structure or ownership of Buyer for Seller, or any reason to comply with insolvency, bankruptcy, reorganization or perform other similar Proceeding affecting Seller or its assets or any of the terms resulting release or discharge of any other agreement with Parentobligation of Seller, or (iv) the settlement or compromise existence of any obligations claim, set-off or other right which Parent may have at any time against Seller; provided, that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim. Upon making any payment under this AgreementSection 6.11 with respect to Seller, or (v) any other circumstance that might otherwise constitute a legal or equitable discharge of a guarantor.
(c) Parent unconditionally waives, shall be subrogated to the fullest extent permitted by law: (i) notice of acceptance hereof, of any action taken or omitted in reliance hereon and of any defaults by Buyer in the payment or performance of this Agreement; (ii) all notices that may otherwise be required by statute, rule of law or otherwise to preserve any of the rights of the payee against Seller or the Company against Parentwith respect to such payment. Parent hereby expressly waives all (A) presentments, including, presentment to or demand (B) demands for payment from Buyer or Parentperformance, notice to Buyer or to Parent (C) diligence, (D) demands of default or protest for nonpayment or protest, dishonor, and the filing of claims with a court in the event of the bankruptcy of Buyer; (iii) any right to the enforcementor reliance hereon, assertion or exercise by Seller or the Company of any right, power or remedy conferred in this Agreement (iv) any requirement of diligence on the part of Seller; and (vE) any other act or omission (including any delay by Seller or any other Person in the taking protests of any action) that might in any manner or to any extent vary the risk of Parent or that might otherwise operate as a discharge of Parent. To the maximum extent lawful, Parent waives all rights by which it might be entitled to require suit on an accrued right of action in respect of any obligation under this Agreement or require suit against Buyer or others, arising under any legal requirement or otherwisenonpayment.
(d) Parent shall maintain unrestricted cash on hand equal to no less than $45,000,000.
Appears in 1 contract
Parent Guaranty. (a) The Parent hereby absolutely, unconditionally and irrevocably and unconditionally guarantees to Seller and full performance by the Company the full and timely performance, payment and discharge by Buyer of all of the Buyer’s covenants, agreements and other obligations hereunder, including the due, punctual and liabilities full payment and performance and collection of Buyer in accordance with the terms Buyer’s (including its permitted designees’ and assigns) obligations hereunder when due, including payment of this Agreement now existing or hereafter arising under this Agreementthe Purchase Price and the Settlement Amounts. This guaranty is an absolute, direct, unconditional and immediate guarantee of payment and performance, and hereby not just of collection, and the Parent acknowledges and agrees that in this guaranty is full and unconditional, and no release or extinguishment of the event Buyer fails to timely perform and discharge in full any obligation Buyer’s and/or its designees’ or Liability of Buyer assigns’ liabilities or other obligations (other than in accordance with the terms of this Agreement), Parent whether by decree in any bankruptcy proceeding or otherwise, will forthwith perform affect the continuing validity and discharge any such obligation or Liability in accordance with the terms enforceability of this Agreementguaranty.
(b) Without limiting in any way the foregoing guaranty, as the case may beParent agrees to cause, as such payment or performance and discharge is required pursuant to take all actions to enable, the terms Buyer to adhere to each provision of this Agreement to be made which requires an act or done by Buyer. The guaranty in omission on the preceding sentence is an absolute, present and continuing guaranty part of payment and of performance of obligations and not of collectability; provided that it shall not be necessary for Seller or the Company, in order to enforce such payment or performance by Parent, first to institute suit or exhaust its remedies against Buyer or any other Person liable of its Affiliates to cause or enable the Buyer to comply with respect to its obligations of Buyer under this Agreement.
(bc) The obligations of Parent under this Section 12.19 shall be absolute, continuing hereby unconditionally and unconditional and shall not be released, discharged or affected in any way, including by any irrevocably waives (i) any bankruptcyright to require the Sellers, insolvencyas a condition of payment or performance by the Parent of any obligations of the Buyer hereunder, readjustment, composition, liquidation, dissolution or similar proceeding with respect to proceed against the Buyer or pursue any of other remedy whatsoever in the event that the Buyer fails to perform its Affiliatesobligations hereunder, (ii) any merger, division, amalgamation or consolidation of Buyer into or with any other corporation or partnership or any sale, lease or transfer of any or all of the assets of Parent or of Buyer to any Person, (iii) any failure on the part of Buyer for any reason to comply with or perform any of the terms of any other agreement with Parent, (iv) the settlement or compromise of any obligations under this Agreement, or (v) any other circumstance that might otherwise constitute a legal or equitable discharge of a guarantor.
(c) Parent unconditionally waives, to the fullest extent permitted by law: (i) notice of acceptance hereofapplicable Law, of any action taken defenses or omitted in reliance hereon and of any defaults by Buyer in the payment or performance of this Agreement; (ii) all notices benefits that may otherwise be required derived from or afforded by statuteLaw which limit the liability of or exonerate guarantors or sureties, rule of law or otherwise to preserve any of the rights of Seller or the Company against Parent, including, presentment to or demand for payment from Buyer or Parent, notice to Buyer or to Parent of default or protest for nonpayment or dishonor, and the filing of claims with a court in the event of the bankruptcy of Buyer; (iii) any right to and all notice of the enforcementcreation, assertion renewal, extension or exercise by Seller or the Company accrual of any rightof any guaranty obligations pursuant to this Section 12.21, power or remedy conferred in this Agreement (iv) notice of or proof of reliance by any requirement Seller upon the guaranty or acceptance of diligence on the part of Seller; and this guaranty, (v) presentment for payment, notice of non-payment or non-performance, demand, protest, notice of protest and notice of dishonor or default to anyone, (vi) defenses to pay or perform based upon any other act of the obligations not being a valid and binding obligation of the Buyer enforceable in accordance with their respective terms, and (vii) any allegation or omission (including any delay by Seller or any other Person in contest of the taking validity of any action) that might in any manner or to any extent vary the risk of Parent or that might otherwise operate as a discharge of Parent. To the maximum extent lawful, Parent waives all rights by which it might be entitled to require suit on an accrued right of action in respect of any obligation under this Agreement or require suit against Buyer or others, arising under any legal requirement or otherwiseguaranty.
(d) Parent shall maintain unrestricted cash on hand equal to no less than $45,000,000.
Appears in 1 contract
Samples: Stock Purchase Agreement (Watts Water Technologies Inc)
Parent Guaranty. (a) The Parent hereby irrevocably and unconditionally guarantees to the Seller the due and punctual performance of the obligations of the Purchaser under all provisions of this Agreement and the Company Transaction Documents that are required to be performed at or prior to the full Closing, as well as the obligations of the Purchaser under Section 3.02(a)(ii) and timely performance, the Transition Services Agreement (which shall be the only obligations to be performed after the Closing that are subject to this guaranty). This guaranty is provided solely with respect to the matters set forth in the foregoing sentence and is an irrevocable guaranty of payment and performance (and not just of collection) and shall continue in effect notwithstanding any extension or modification of the terms of Agreement or any other act or event which might otherwise operate as a legal or equitable discharge by Buyer of all the Parent under this guaranty. This guaranty shall terminate upon payment of the Deferred Payment.
(b) A separate Legal Proceeding to enforce this guaranty may be brought and prosecuted against the Parent, irrespective of whether any Legal Proceeding is brought against the Purchaser or any other Person or whether the Purchaser and/or any other Person is joined in any such Legal Proceeding. The liability of the Parent under this guaranty will, to the fullest extent permitted under applicable Law, be absolute and unconditional, irrespective of: (i) any release or discharge of any obligation of the Purchaser under this Agreement resulting from any change in the corporate existence, structure or ownership of the Purchaser, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Purchaser or any of its assets; or (ii) any amendment or modification of this Agreement, or any change in the manner, place or terms of payment or performance of the guaranteed obligations and liabilities or any other obligation of Buyer the Purchaser hereunder, or any change or extension of the time of payment or performance of, alteration of, the guaranteed obligations or any other obligation of the Purchaser hereunder, any liability incurred directly or indirectly in accordance with respect thereof, or any amendment or waiver of, or any consent to, any departure from the terms of this Agreement now existing or hereafter arising under this Agreementthe documents entered into in connection herewith, and hereby agrees provided however, that in the event Buyer fails to timely perform and discharge in full any obligation or Liability of Buyer in accordance with the terms of this Agreement, Parent will forthwith perform and discharge any such obligation or Liability in accordance with the terms of this Agreement, as the case may be, as such payment or performance and discharge is required pursuant shall be entitled to the terms benefits of this Agreement any contractual or other claims, counterclaims, defenses, setoffs or other rights and remedies that are available to be made or done by Buyer. The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and of performance of obligations and not of collectability; provided that it shall not be necessary for Seller or the Company, in order to enforce such payment or performance by Parent, first to institute suit or exhaust its remedies against Buyer or any other Person liable with respect to obligations of Buyer Purchaser under this Agreement.
(bc) The obligations of Parent under this Section 12.19 shall be absolute, continuing hereby waives any and unconditional and shall not be released, discharged or affected in any way, including by any (i) any bankruptcy, insolvency, readjustment, composition, liquidation, dissolution or similar proceeding with respect to Buyer or any of its Affiliates, (ii) any merger, division, amalgamation or consolidation of Buyer into or with any other corporation or partnership or any sale, lease or transfer of any or all notice of the assets of Parent creation, extension or of Buyer to any Person, (iii) any failure on the part of Buyer for any reason to comply with or perform any accrual of the terms of any other agreement with Parent, (iv) the settlement or compromise of any guaranteed obligations under this Agreement, or (v) any other circumstance that might otherwise constitute a legal or equitable discharge of a guarantor.
(c) Parent unconditionally waives, to the fullest extent permitted by law: (i) guaranty and notice of or proof of reliance by the Seller Entities upon this guaranty or acceptance hereofof this guaranty. The guaranteed obligations under this guaranty will conclusively be deemed to have been created, of any action taken contracted or omitted incurred in reliance hereon and of any defaults by Buyer in the payment or performance of upon this Agreement; (ii) all notices that may otherwise be required by statute, rule of law or otherwise to preserve any of the rights of Seller or the Company against Parent, including, presentment to or demand for payment from Buyer or Parent, notice to Buyer or to Parent of default or protest for nonpayment or dishonorguaranty, and all dealings between the filing of claims with a court Parent and the Seller will likewise be conclusively presumed to have been had or consummated in the event of the bankruptcy of Buyer; (iii) any right to the enforcement, assertion or exercise by Seller or the Company of any right, power or remedy conferred in reliance upon this Agreement (iv) any requirement of diligence on the part of Seller; and (v) any other act or omission (including any delay by Seller or any other Person in the taking of any action) that might in any manner or to any extent vary the risk of Parent or that might otherwise operate as a discharge of Parent. To the maximum extent lawful, Parent waives all rights by which it might be entitled to require suit on an accrued right of action in respect of any obligation under this Agreement or require suit against Buyer or others, arising under any legal requirement or otherwiseguaranty.
(d) The Parent shall maintain unrestricted cash irrevocably waives acceptance, presentment, demand, protest and any notice in respect of this guaranty not provided for herein.
(e) The Parent has the requisite power and authority to execute and deliver this Agreement and to perform its obligation hereunder to pay, when and if due, the guaranteed obligations. The execution, and delivery of this Agreement, and the performance by the Parent of its obligation to pay, when and if due, the guaranteed obligations, have been duly authorized by all necessary action on hand equal the part of the Parent, and no other action is necessary on the part of the Parent to no less than $45,000,000authorize this Agreement or the payment, when due, of the guaranteed obligations.
(f) This Agreement has been duly executed and delivered by the Parent and constitutes a legal, valid and binding obligation of the Parent, enforceable against the Parent in accordance with its terms, except as limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar Laws relating to creditors’ rights generally and (ii) general principles of equity, whether such enforceability is considered in a proceeding in equity or at Law.
Appears in 1 contract
Samples: Asset Purchase Agreement (Tonix Pharmaceuticals Holding Corp.)
Parent Guaranty. (a) Subject to the terms and conditions set forth in this Section 8.17, Parent hereby absolutely, unconditionally and irrevocably guarantees as primary obligor and not merely a surety (the “Parent Guaranty”) the due, full and punctual payment and performance of all of Seller’s indemnification obligations under Article VII of this Agreement and present and future liabilities, covenants and agreements required to be observed and performed or paid or reimbursed by Seller under this Agreement in each case if and when due in accordance with this Agreement (collectively, the “Obligations”). Parent agrees that this Parent Guaranty and the Obligations are irrevocable, continuing, absolute and unconditional and shall not be discharged or impaired or otherwise affected by, and Parent hereby irrevocably and unconditionally guarantees waives any defenses to enforcement it may have (now or in the future) by reason of:
(i) any illegality, invalidity or unenforceability of any Obligation or this Agreement, or any Law, regulation, decree or order of any jurisdiction or any other event affecting any term of the Obligations;
(ii) any change in the time, place or manner of payment or performance of, or in any other term of the Obligations, or any rescission, waiver, release, assignment, amendment or other modification of this Agreement;
(iii) any taking, exchange, substitution, release, impairment, amendment, waiver, modification or non-perfection of any collateral or any other guaranty for the Obligations, or any manner of sale, disposition or application of proceeds of any collateral or other assets to all or part of the Obligations;
(iv) any default, failure or delay, willful or otherwise, in the performance of the Obligations;
(v) any change, restructuring or termination of the corporate structure, ownership or existence of Parent or Seller and or any insolvency, bankruptcy, reorganization or other similar proceeding affecting Seller or its assets or any resulting restructuring, release or discharge of any Obligations, or any sale or transfer by Parent or Seller of all or any part of their respective property or assets;
(vi) any failure of Purchaser to disclose to Parent any information relating to the Company the full and timely business, condition (financial or otherwise), operations, performance, payment and discharge by Buyer or properties of all obligations and liabilities Purchaser now or hereafter known to Purchaser, Parent waiving any duty of Buyer in accordance Purchaser to disclose such information;
(vii) the failure of any other guarantor or third party to execute or deliver this Agreement or any other guaranty or agreement, or the release or reduction of liability of Parent or any other guarantor or surety with respect to the terms Obligations;
(viii) the failure of Purchaser to assert any claim or demand or to exercise or enforce any right or remedy under the provisions of this Agreement now or otherwise;
(ix) the existence of any claim, set-off, counterclaim, recoupment or other rights that Parent or Seller may have against Purchaser (other than a defense of payment or performance); or
(x) any other circumstance (including, without limitation, any statute of limitations), act, omission or manner of administering this Agreement or any existence of or reliance on any representation by Purchaser that might vary the risk of Parent or otherwise operate as a defense available to, or a legal or equitable discharge of, Parent.
(b) Parent hereby waives and shall not exercise any rights that it may acquire by way of subrogation, contribution, reimbursement or indemnification for any payment or performance by Parent under the Parent Guaranty until all Obligations shall have been indefeasibly paid and discharged in full.
(c) Pxxxxx further acknowledges and agrees as follows:
(i) Parent hereby unconditionally and irrevocably waives any right to revoke the Parent Guaranty and acknowledges that the Parent Guaranty is continuing in nature and applies to all presently existing and future Obligations, until the complete, irrevocable and indefeasible payment and satisfaction in full of the Obligations;
(ii) The Parent Guaranty is a guaranty of payment and not of collection. Purchaser shall not be obligated to enforce or hereafter arising exhaust its remedies against Seller or under the Agreement before proceeding to enforce the Parent Guaranty;
(iii) The Parent Guaranty is a direct guaranty and independent of the obligations of Seller under this Agreement. Purchaser may resort to Parent for payment of the Obligations whether or not Purchaser shall have resorted to any collateral therefor or shall have proceeded against Seller or any other guarantors with respect to the Obligations. Purchaser may, at Purchaser’s option, proceed against Parent and Seller, jointly and severally, or against Parent only without having obtained a judgment against Seller;
(iv) Parent hereby unconditionally and irrevocably waives all suretyship defenses, promptness, diligence, notice of acceptance, presentment, demand for performance, notice of non-performance, default, acceleration, protest, notice of protest or dishonor and any other notice with respect to any of the Obligations and the Parent Guaranty and any requirement that Purchaser protect, secure, perfect or insure any Lien or any property subject thereto;
(v) Parent agrees that in the event Buyer fails Parent Guaranty shall continue to timely perform and discharge in full any obligation be effective or Liability of Buyer in accordance with the terms of this Agreement, Parent will forthwith perform and discharge any such obligation or Liability in accordance with the terms of this Agreementbe reinstated, as the case may be, as if at any time all or part of any payment of any Obligation is voided, rescinded or recovered or must otherwise be returned by Purchaser upon the insolvency, bankruptcy or reorganization of Seller or otherwise; or
(vi) Each of the waivers set forth in this Section 8.17 is made with full knowledge of its significant and consequences under the circumstances the waivers are reasonable and not contrary to public policy. If any of said waivers is determined to be contrary to any applicable law or public policy, such payment or performance and discharge is required pursuant waivers shall be effective only to the terms of this Agreement to be made or done by Buyer. The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and of performance of obligations and not of collectability; provided that it shall not be necessary for Seller or the Company, in order to enforce such payment or performance by Parent, first to institute suit or exhaust its remedies against Buyer or any other Person liable with respect to obligations of Buyer under this Agreement.
(b) The obligations of Parent under this Section 12.19 shall be absolute, continuing and unconditional and shall not be released, discharged or affected in any way, including by any (i) any bankruptcy, insolvency, readjustment, composition, liquidation, dissolution or similar proceeding with respect to Buyer or any of its Affiliates, (ii) any merger, division, amalgamation or consolidation of Buyer into or with any other corporation or partnership or any sale, lease or transfer of any or all of the assets of Parent or of Buyer to any Person, (iii) any failure on the part of Buyer for any reason to comply with or perform any of the terms of any other agreement with Parent, (iv) the settlement or compromise of any obligations under this Agreement, or (v) any other circumstance that might otherwise constitute a legal or equitable discharge of a guarantor.
(c) Parent unconditionally waives, to the fullest extent permitted by law: (i) notice of acceptance hereof, of any action taken or omitted in reliance hereon and of any defaults by Buyer in the payment or performance of this Agreement; (ii) all notices that may otherwise be required by statute, rule of law or otherwise to preserve any of the rights of Seller or the Company against Parent, including, presentment to or demand for payment from Buyer or Parent, notice to Buyer or to Parent of default or protest for nonpayment or dishonor, and the filing of claims with a court in the event of the bankruptcy of Buyer; (iii) any right to the enforcement, assertion or exercise by Seller or the Company of any right, power or remedy conferred in this Agreement (iv) any requirement of diligence on the part of Seller; and (v) any other act or omission (including any delay by Seller or any other Person in the taking of any action) that might in any manner or to any extent vary the risk of Parent or that might otherwise operate as a discharge of Parent. To the maximum extent lawful, Parent waives all rights by which it might be entitled to require suit on an accrued right of action in respect of any obligation under this Agreement or require suit against Buyer or others, arising under any legal requirement or otherwise.
(d) Nothing in this Section 8.17 shall modify the survival periods applicable to matters set forth in Article VII of this Agreement and any of the limitations set forth in Article VII of this Agreement, or the maximum liability of Seller as set forth in this Agreement, all of which also shall apply to, and similarly limit, Parent’s obligations.
(e) Pxxxxx has currently, and will have at the time of any Obligation hereunder and at all times thereafter during the effectiveness of this Section 8.17, the financial capacity to pay and perform such Obligations, and all funds necessary for Parent to fulfill its obligation under this Section 8.17 shall maintain unrestricted cash be available to Parent for so long as Obligations remain unsatisfied in full.
(f) Seller and Parent understand that Purchaser is relying on hand equal to no less than $45,000,000the guaranty set forth in this Section 8.17 in entering into this Agreement.
Appears in 1 contract
Parent Guaranty. (a) Parent Guarantor hereby absolutely, unconditionally and irrevocably guarantees, as primary obligor and unconditionally guarantees to Seller not merely as surety, the due and punctual payment by Parent of the Company the full monetary obligations of Parent under Section 6.16 (Tax Matters) and timely performance, ARTICLE VIII. This guaranty is an irrevocable guaranty of payment (and discharge by Buyer not just of all obligations collection) and liabilities shall continue in effect notwithstanding any extension or modification of Buyer in accordance with the terms of this Agreement now existing or hereafter arising under this Agreement, and hereby agrees that in the event Buyer fails to timely perform and discharge in full any obligation or Liability of Buyer in accordance with the terms of this Agreement, Parent will forthwith perform and discharge any assumption of any such guaranteed obligation by any other Party or Liability in accordance with the terms any other act or event that might otherwise operate as legal or equitable discharge of Parent Guarantor under this Agreement, as the case may be, as such payment or performance and discharge is required pursuant to the terms of this Agreement to be made or done by BuyerSection 9.16. The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and of performance of obligations and not of collectability; provided Parent Guarantor agrees that it shall not pay on demand all costs and expenses (including reasonable attorneys’ fees) incurred by the Buyer Indemnified Parties in connection with enforcing this Section 9.16, which amounts shall be necessary for Seller or the Company, in order addition to enforce such payment or performance by Parent, first to institute suit or exhaust its remedies against Buyer or any all other Person liable with respect to obligations of Buyer under this AgreementSection 9.16. There are no conditions precedent to the enforcement of this Section 9.16.
(b) The obligations of Parent under this Section 12.19 shall be absolute, continuing and unconditional and Guarantor hereunder shall not be released, discharged affected by or affected in any way, including by any contingent upon (i) the liquidation or dissolution of, or the merger or consolidation of Parent with or into any bankruptcy, insolvency, readjustment, composition, liquidation, dissolution or similar proceeding with respect to Buyer Person or any sale or transfer by Parent of all or any part of its Affiliatesproperty or assets, (ii) any mergerthe bankruptcy, divisionreceivership, amalgamation insolvency, reorganization or consolidation of Buyer into similar proceedings involving or with any other corporation or partnership or any sale, lease or transfer of any or all of the assets of Parent or of Buyer to any Personaffecting Parent, (iii) any failure on the part modification, alteration, amendment or addition of Buyer for or to this Agreement or any reason to comply with Ancillary Document, or perform any of the terms of any other agreement with Parent, (iv) the settlement any disability or compromise any other defense of Parent or any obligations under this Agreement, or (v) other Person and any other circumstance whatsoever (with or without notice to or knowledge of Parent Guarantor) that may or might in any manner or to any extent vary the risks of Parent Guarantor or might otherwise constitute a legal or equitable discharge of a guarantorsurety or a guarantor or otherwise. In connection with the foregoing, Parent Guarantor waives presentment for payment or performance, notice of nonpayment or nonperformance, or demand, diligence or protest; provided, however, Parent Guarantor shall have available to it all defenses that Parent would have in the event of an action by the Buyer Indemnified Parties against Parent to enforce this Agreement, other than any defenses arising from bankruptcy, receivership, insolvency, reorganization or similar proceedings involving or affecting Parent.
(c) All dealings between the Parent unconditionally waives, to the fullest extent permitted by law: (i) notice of acceptance hereof, of any action taken or omitted in reliance hereon Guarantor and of any defaults by Buyer in the payment or performance of this Agreement; (ii) all notices that may otherwise be required by statute, rule of law or otherwise to preserve any of the rights of Seller or the Company against Parent, including, presentment to or demand for payment from Buyer or Parent, notice to Buyer or to Parent of default or protest for nonpayment or dishonoron the one hand, and the filing of claims with a court Buyer Indemnified Parties, on the other hand, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Section 9.16. Parent Guarantor acknowledges that they will receive substantial direct and indirect benefits from the event of transactions contemplated hereby and that the bankruptcy of Buyer; (iii) any right to the enforcement, assertion or exercise waivers and agreements by Seller or the Company of any right, power or remedy conferred Parent Guarantor set forth in this Agreement (iv) any requirement Section 9.16 are knowingly made in contemplation of diligence on the part of Seller; and (v) any other act or omission (including any delay by Seller or any other Person in the taking of any action) that might in any manner or to any extent vary the risk of Parent or that might otherwise operate as a discharge of Parent. To the maximum extent lawful, Parent waives all rights by which it might be entitled to require suit on an accrued right of action in respect of any obligation under this Agreement or require suit against Buyer or others, arising under any legal requirement or otherwisesuch benefits.
(d) Parent Guarantor hereby represents and warrants as follows: (i) Parent Guarantor is a trust validly existing under the Laws of the State of Utah, and has all power and authority to execute, deliver and perform the obligations created by this Section 9.16; (ii) the execution and delivery of this Agreement by Parent Guarantor and the performance of its obligations under this Agreement has been duly and validly authorized and approved by all necessary organizational action; and (iii) the execution and delivery of this Agreement by Parent Guarantor and the performance of its obligations under this Agreement does not, and will not as of each Closing, violate its Organizational Documents or any applicable Law, or any material contractual restriction binding on Parent Guarantor or its assets.
(e) Sections 9.1 through 9.10, 9.12, and ARTICLE I shall maintain unrestricted cash on hand equal apply to no less than $45,000,000this Section 9.16, mutatis mutandis.
Appears in 1 contract
Parent Guaranty. (a) Buyer Parent hereby absolutely, unconditionally and irrevocably guarantees, as primary obligor and unconditionally guarantees to Seller and the Company not merely as surety, the full and timely performance, punctual payment and discharge by Buyer performance when due of all obligations and liabilities of Buyer in accordance with the terms of this Agreement (payment and performance) now existing or hereafter arising existing under this Agreement, and hereby agrees including under Article XII (collectively, the “Buyer Obligations”).
(b) Buyer Parent guarantees that in the event Buyer fails to timely perform and discharge in full any obligation or Liability of Buyer Obligations will be performed strictly in accordance with the terms of this Agreement, Parent will forthwith perform and discharge regardless of any Law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such obligation terms or Liability in accordance the rights of Buyer with the terms of this Agreement, as the case may be, as such payment or performance and discharge is required pursuant to the terms of this Agreement to be made or done by Buyerrespect thereto. The This guaranty in the preceding sentence is an absolute, unconditional, present and continuing guaranty of payment and of performance of obligations and not of collectability; provided that it shall not be necessary for Seller or the Company, in order to enforce such payment or performance by Parent, first to institute suit or exhaust its remedies against Buyer or any other Person liable with respect to obligations collection. The liability of Buyer under this Agreement.
(b) The obligations of Parent under this Section 12.19 14.15 shall be absolute, continuing absolute and unconditional and shall not be released, discharged discharged, diminished, impaired, reduced or otherwise affected in by the occurrence of any way, including by any of the following: (i) any lack of validity, enforceability or genuineness of any provision of this Agreement or any other agreement or instrument relating thereto, (ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the Buyer Obligations or any other amendment or waiver of or any consent to departure from this Agreement, (iii) any release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the Buyer Obligations; or (iv) the insolvency, bankruptcy, insolvencyarrangement, readjustmentadjustment, composition, liquidation, disability, dissolution or similar proceeding with respect to Buyer or any lack of its Affiliatespower, (ii) any mergeras applicable, division, amalgamation or consolidation of Buyer into or with any other corporation or partnership or any sale, lease or transfer of any or all of the assets of Parent or of Buyer to any Person, (iii) any failure on the part of Buyer for any reason to comply with or perform any of the terms of any other agreement with Parent, (iv) the settlement or compromise of any obligations under this Agreement, or (v) any other circumstance that might otherwise payment by Buyer or Buyer Parent to Seller being held to constitute a legal preference under bankruptcy or equitable discharge insolvency laws or (vi) any other action taken or omitted to be taken with respect to this Agreement, this guaranty, or the Buyer Obligations, whether or not such action or omission prejudices Buyer Parent or increases the likelihood that Buyer Parent shall be required to pay the Buyer Obligations pursuant to the terms hereof, it being the unambiguous and unequivocal intention of a guarantorBuyer Parent that Buyer Parent shall be obligated to pay the Buyer Obligations when due, notwithstanding any occurrence, circumstance, event, action, or omission whatsoever.
(c) The guaranty set forth in this Section 14.15 shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Buyer Obligations is rescinded or must otherwise be returned by Seller upon the insolvency, bankruptcy or reorganization of Buyer or otherwise, all as though such payment had not been made. Buyer Parent unconditionally waiveshereby waives promptness, to the fullest extent permitted by law: (i) diligence, notice of acceptance hereof, of and any action taken or omitted in reliance hereon and of any defaults by Buyer in the payment or performance of this Agreement; (ii) all notices that may otherwise be required by statute, rule of law or otherwise other notice with respect to preserve any of the Buyer Obligations and this guaranty. Buyer Parent hereby irrevocably waives any claims or other rights that it may now or hereafter acquire against Seller that arise from the existence, payment, performance or enforcement of Seller Buyer Parent’s respective obligations under this guaranty or the Company against Parentthis Agreement, includingincluding any right of subrogation, presentment to reimbursement, exoneration, contribution or demand for payment from Buyer or Parent, notice to Buyer or to Parent of default or protest for nonpayment or dishonor, indemnification and the filing of claims with a court in the event of the bankruptcy of Buyer; (iii) any right to the enforcement, assertion or exercise by Seller or the Company of participate in any right, power claim or remedy conferred of Seller against Buyer, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from Buyer, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to Buyer Parent in violation of the preceding sentence at any time prior to the later of the cash payment in full of the Buyer Obligations and all other amounts payable under this guaranty and the termination date, such amount shall be held in trust for the benefit of Seller, shall forthwith be paid to Buyer to be credited and applied to the Buyer Obligations and all other amounts payable under this guaranty, in accordance with the terms of this Agreement (iv) any requirement of diligence on the part of Seller; and (v) any other act or omission (including any delay by Seller or any other Person in the taking of any action) that might in any manner this guaranty, or to be held as collateral for any extent vary the risk of Parent Buyer Obligations or that might otherwise operate as a discharge of Parent. To the maximum extent lawful, Parent waives all rights by which it might be entitled to require suit on an accrued right of action in respect of any obligation other amounts payable under this Agreement or require suit against Buyer or others, arising under any legal requirement or otherwiseguaranty thereafter arising.
(d) The guaranty set forth in this Section 14.15 shall remain in full force and effect until the first anniversary of the Closing Date or the termination of this Agreement; provided, however, that if Buyer Parent has been notified in writing of any claims with regard to Buyer Obligations prior to the first anniversary of the Closing Date, it shall remain in full force and effect until discharge or payment in full of such Buyer Obligations.
(e) Buyer Parent hereby makes the same representations set forth in Section 5.1, Section 5.2 and Section 5.3. Except as provided in this Section 14.15, Buyer Parent is not making any representations, warranties or covenants under this Agreement.
(f) Seller agrees that Buyer Parent shall maintain unrestricted cash on hand equal have no obligation under this Agreement except for the guaranty set forth in this Section 14.15.
(g) Notices to no less than $45,000,000.Buyer Parent shall be made in accordance with Section 14.4 to the following address: Atlas Resource Partners, L.P. Park Place Corporate Center One 0000 Xxxxxxxx Xxxxx, Xxxxx 000 Xxxxxxxxxx, XX 00000 Attention: General Counsel Fax: 000-000-0000 [THE NEXT SUCCEEDING PAGE IS THE EXECUTION PAGE] 62
Appears in 1 contract
Samples: Purchase and Sale Agreement
Parent Guaranty. (a) Buyer Parent hereby absolutely, unconditionally and irrevocably guarantees, as primary obligor and unconditionally guarantees to Seller and the Company not merely as surety, the full and timely performance, punctual payment and discharge by Buyer performance when due of all obligations and liabilities of Buyer in accordance with the terms of this Agreement (payment and performance) now existing or hereafter arising existing under this Agreement, and hereby agrees including under Article XII (collectively, the “Buyer Obligations”).
(b) Buyer Parent guarantees that in the event Buyer fails to timely perform and discharge in full any obligation or Liability of Buyer Obligations will be performed strictly in accordance with the terms of this Agreement, Parent will forthwith perform and discharge regardless of any Law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such obligation terms or Liability in accordance the rights of Buyer with the terms of this Agreement, as the case may be, as such payment or performance and discharge is required pursuant to the terms of this Agreement to be made or done by Buyerrespect thereto. The This guaranty in the preceding sentence is an absolute, unconditional, present and continuing guaranty of payment and of performance of obligations and not of collectability; provided that it shall not be necessary for Seller or the Company, in order to enforce such payment or performance by Parent, first to institute suit or exhaust its remedies against Buyer or any other Person liable with respect to obligations collection. The liability of Buyer under this Agreement.
(b) The obligations of Parent under this Section 12.19 14.15 shall be absolute, continuing absolute and unconditional and shall not be released, discharged discharged, diminished, impaired, reduced or otherwise affected in by the occurrence of any way, including by any of the following: (i) any lack of validity, enforceability or genuineness of any provision of this Agreement or any other agreement or instrument relating thereto, (ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the Buyer Obligations or any other amendment or waiver of or any consent to departure from this Agreement, (iii) any release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the Buyer Obligations; or (iv) the insolvency, bankruptcy, insolvencyarrangement, readjustmentadjustment, composition, liquidation, disability, dissolution or similar proceeding with respect to Buyer or any lack of its Affiliatespower, (ii) any mergeras applicable, division, amalgamation or consolidation of Buyer into or with any other corporation or partnership or any sale, lease or transfer of any or all of the assets of Parent or of Buyer to any Person, (iii) any failure on the part of Buyer for any reason to comply with or perform any of the terms of any other agreement with Parent, (iv) the settlement or compromise of any obligations under this Agreement, or (v) any other circumstance that might otherwise payment by Buyer or Buyer Parent to Seller being held to constitute a legal preference under bankruptcy or equitable discharge insolvency laws or (vi) any other action taken or omitted to be taken with respect to this Agreement, this guaranty, or the Buyer Obligations, whether or not such action or omission prejudices Buyer Parent or increases the likelihood that Buyer Parent shall be required to pay the Buyer Obligations pursuant to the terms hereof, it being the unambiguous and unequivocal intention of a guarantorBuyer Parent that Buyer Parent shall be obligated to pay the Buyer Obligations when due, notwithstanding any occurrence, circumstance, event, action, or omission whatsoever.
(c) The guaranty set forth in this Section 14.15 shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Buyer Obligations is rescinded or must otherwise be returned by Seller upon the insolvency, bankruptcy or reorganization of Buyer or otherwise, all as though such payment had not been made. Buyer Parent unconditionally waiveshereby waives promptness, to the fullest extent permitted by law: (i) diligence, notice of acceptance hereof, of and any action taken or omitted in reliance hereon and of any defaults by Buyer in the payment or performance of this Agreement; (ii) all notices that may otherwise be required by statute, rule of law or otherwise other notice with respect to preserve any of the Buyer Obligations and this guaranty. Buyer Parent hereby irrevocably waives any claims or other rights that it may now or hereafter acquire against Seller that arise from the existence, payment, performance or enforcement of Seller Buyer Parent’s respective obligations under this guaranty or the Company against Parentthis Agreement, includingincluding any right of subrogation, presentment to reimbursement, exoneration, contribution or demand for payment from Buyer or Parent, notice to Buyer or to Parent of default or protest for nonpayment or dishonor, indemnification and the filing of claims with a court in the event of the bankruptcy of Buyer; (iii) any right to the enforcement, assertion or exercise by Seller or the Company of participate in any right, power claim or remedy conferred of Seller against Buyer, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from Buyer, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to Buyer Parent in violation of the preceding sentence at any time prior to the later of the cash payment in full of the Buyer Obligations and all other amounts payable under this guaranty and the termination date, such amount shall be held in trust for the benefit of Seller, shall forthwith be paid to Buyer to be credited and applied to the Buyer Obligations and all other amounts payable under this guaranty, in accordance with the terms of this Agreement (iv) any requirement of diligence on the part of Seller; and (v) any other act or omission (including any delay by Seller or any other Person in the taking of any action) that might in any manner this guaranty, or to be held as collateral for any extent vary the risk of Parent Buyer Obligations or that might otherwise operate as a discharge of Parent. To the maximum extent lawful, Parent waives all rights by which it might be entitled to require suit on an accrued right of action in respect of any obligation other amounts payable under this Agreement or require suit against Buyer or others, arising under any legal requirement or otherwiseguaranty thereafter arising.
(d) The guaranty set forth in this Section 14.15 shall remain in full force and effect until the first anniversary of the Closing Date or the termination of this Agreement; provided, however, that if Buyer Parent has been notified in writing of any claims with regard to Buyer Obligations prior to the first anniversary of the Closing Date, it shall remain in full force and effect until discharge or payment in full of such Buyer Obligations.
(e) Buyer Parent hereby makes the same representations set forth in Section 5.1, Section 5.2 and Section 5.3. Except as provided in this Section 14.15, Buyer Parent is not making any representations, warranties or covenants under this Agreement.
(f) Seller agrees that Buyer Parent shall maintain unrestricted cash on hand equal have no obligation under this Agreement except for the guaranty set forth in this Section 14.15.
(g) Notices to no less than $45,000,000.Buyer Parent shall be made in accordance with Section 14.4 to the following address: Atlas Resource Partners, L.P. Park Place Corporate Center One 0000 Xxxxxxxx Xxxxx, Xxxxx 000 Xxxxxxxxxx, XX 00000 Attention: General Counsel Fax: 000-000-0000
Appears in 1 contract
Samples: Purchase and Sale Agreement (Atlas Resource Partners, L.P.)
Parent Guaranty. (a) Parent hereby absolutely, unconditionally and irrevocably and unconditionally guarantees to the Seller and the Company the full due and timely performance, punctual payment and discharge performance of, and compliance by Buyer the Purchaser with all of all the Purchaser’s obligations and liabilities of Buyer in accordance with the terms of under this Agreement now existing or hereafter arising (including the Purchaser Termination Fee, Other Costs and other fees, costs and expenses for which Purchaser is responsible pursuant to this Agreement). Parent’s obligations under this Agreement, and hereby agrees that in the event Buyer fails to timely perform and discharge in full any obligation or Liability of Buyer in accordance with the terms of this Agreement, Parent will forthwith perform and discharge any such obligation or Liability in accordance with the terms of this Agreement, as the case may be, as such payment or performance and discharge is required pursuant to the terms of this Agreement to be made or done by Buyer. The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and of performance of obligations and not of collectability; provided that it Section 11.19 shall not be necessary for Seller released or the Company, in order to enforce such payment or performance discharged by Parent, first to institute suit or exhaust its remedies against Buyer or any other Person liable with respect to obligations of Buyer under this Agreement.
(b) The obligations of Parent under this Section 12.19 shall be absolute, continuing and unconditional and shall not be released, discharged or affected in any way, including by any (i) any bankruptcy, insolvency, readjustment, composition, liquidation, dissolution or similar proceeding with respect to Buyer or any of its Affiliates, (ii) any merger, division, amalgamation or consolidation of Buyer into or with any other corporation or partnership or any sale, lease or transfer of any or all of the assets following: (i) any change in the time, manner or place of Parent payment of, or in any other term of, all or any of Buyer the obligations of the Purchaser under or in respect of this Agreement; (ii) any express amendment or modification of or supplement to this Agreement, or any Person, assignment or transfer of any of the obligations of the Purchaser; (iii) any failure on the part of Buyer for any reason Purchaser to perform or comply with or perform any of the terms of any other agreement with Parent, this Agreement; (iv) the settlement any waiver, consent, change, extension, indulgence or compromise of any obligations under this Agreement, other action or (v) any other circumstance that might otherwise constitute a legal or equitable discharge of a guarantor.
(c) Parent unconditionally waives, to the fullest extent permitted by law: (i) notice of acceptance hereof, of any action taken or omitted inaction under or in reliance hereon and of any defaults by Buyer in the payment or performance respect of this Agreement; (iiv) all notices that may otherwise be required any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding with respect to the Purchaser or its properties, or any action taken by statuteany trustee or receiver or by any court in any such proceeding, rule subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of law general applicability relating to or otherwise affecting creditors’ rights and to preserve general equity principles; (vi) any change in the name or ownership of the rights of Seller or the Company against Parentor any other person referred to herein, including, presentment to or demand for payment from Buyer or Parent, notice to Buyer or to Parent of default or protest for nonpayment or dishonor, and the filing of claims with a court in the event of the bankruptcy of Buyer; (iii) any right to the enforcement, assertion or exercise by Seller or the Company of any right, power or remedy conferred in this Agreement (iv) any requirement of diligence on the part of Seller; and (vvii) any other act or omission (including any delay by Seller that may or any other Person in the taking of any action) that might in any manner or to any extent vary the risk of Parent or that might otherwise operate as a discharge of ParentParent as a matter of law or equity. To Parent hereby waives (i) notice of acceptance of this guarantee, (ii) presentment and demand concerning the maximum extent lawful, liabilities of Parent waives all rights by which it might be entitled and (iii) any right to require suit on an accrued right of that any action in respect be brought against the Purchaser or any other person, or to require that the Company or the Seller seek enforcement of any obligation performance against the Purchaser or any other person prior to any action against Parent under this Agreement or require suit against Buyer or others, arising under any legal requirement or otherwisethe terms hereof.
(d) Parent shall maintain unrestricted cash on hand equal to no less than $45,000,000.
Appears in 1 contract
