Seller Guarantees. Purchaser acknowledges that in the course of conduct of the business of Sellers, Sellers and their respective Affiliates may have entered into various arrangements (a) in which guarantees, letters of credit, sureties, bonds or similar arrangements were issued by any Seller or its Affiliates and (b) in which such Seller or its Affiliates are the primary obligors on other Contracts, in any such case to support or facilitate the business of Sellers. The arrangements entered into by any Seller and its Affiliates referred to in the foregoing clauses (a) and (b), solely to the extent relating to any Acquired Assets or Assumed Liabilities and including those which are set forth in Section 5.12, are referred to as the “Seller Credit Support Obligations”. It is understood that the Seller Credit Support Obligations are not intended to continue after the Closing. Purchaser agrees that it shall use its reasonable best efforts to obtain replacements for the Seller Credit Support Obligations (which shall include the full and unconditional release of such Seller and its Affiliates) that will be in effect at the Closing or, in the case of Seller Credit Support Obligations described in the foregoing clause (b), will use its commercially reasonable efforts to arrange for itself or one of its Subsidiaries to be substituted as the primary obligor thereon as of the Closing through an assumption, accession, acknowledgement or similar agreement (which shall include the full and unconditional release of Sellers and their respective Affiliates) with the beneficiary of the applicable Seller Credit Support Obligation. Whether or not Purchaser is able to satisfy the terms of the immediately preceding sentence, Purchaser shall indemnify Sellers and their respective Affiliates and Representatives from and against any and all Liabilities incurred by any of them relating to the Seller Credit Support Obligations. Purchaser agrees that, with respect to any Seller Credit Support Obligation, its reasonable best efforts pursuant to this Section 5.12 shall include, if requested, the execution and delivery by Purchaser, or by an affiliate of Purchaser acceptable to the beneficiary of such Seller Credit Support Obligation, of a replacement guarantee that is substantially in the form of such Seller Credit Support Obligation. All costs and expenses incurred in connection with providing the release or substitution of the Seller Credit Support Obligations shall be borne by Purchaser.
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Samples: Asset Purchase Agreement (Sunpower Corp), Asset Purchase Agreement (Complete Solaria, Inc.)
Seller Guarantees. Prior to the Closing, the Purchaser acknowledges that shall use reasonable best efforts to (i) arrange for substitute bonds and guarantees to replace (A) the Seller Guarantees set forth on Section 5.24 of the Disclosure Schedules and (B) any Seller Guarantees entered into in the ordinary course of conduct business after the date hereof and prior to the Closing or (ii) assume all obligations under each Seller Guarantee, obtaining from the creditor, beneficiary or other counterparty a full release (in a form satisfactory to the Seller) of all parties liable, directly or indirectly, for reimbursement to the creditor or fulfillment of other obligations to a beneficiary or counterparty in connection with amounts drawn under the Seller Guarantees. To the extent the beneficiary or counterparty under any Seller Guarantee does not accept any such substitute bond, Purchaser guarantee or other obligation proffered by the Purchaser, the Purchaser shall (x) indemnify, defend and hold harmless each member of the business Seller Group against, and reimburse each member of Sellersthe Seller Group for, Sellers all amounts paid (including costs and their respective Affiliates may have entered into various arrangements (aexpenses) in which guaranteesconnection with such Seller Guarantees, letters including the Seller’s and its Affiliates’ expenses in maintaining such Seller Guarantees, whether or not any such Seller Guarantee is drawn upon or required to be performed, and shall in any event promptly reimburse the relevant member of credit, sureties, bonds or similar arrangements were issued by the Seller Group to the extent any Seller Guarantee is called upon and the Seller or its Affiliates makes any payment or is obligated to reimburse the party issuing the Seller Guarantee and (by) not without the Seller’s prior written consent, amend in which such any manner adverse to the Seller or any of its Affiliates are Affiliates, or extend (or permit the primary obligors on other Contractsextension of), in any such case to support Seller Guarantee or facilitate the business of Sellers. The arrangements entered into any obligation supported by any Seller and its Affiliates referred to in the foregoing clauses (a) and (b), solely to the extent relating to any Acquired Assets or Assumed Liabilities and including those which are set forth in Section 5.12, are referred to as the “Seller Credit Support Obligations”. It is understood that the Seller Credit Support Obligations are not intended to continue after the Closing. Purchaser agrees that it shall use its reasonable best efforts to obtain replacements for the Seller Credit Support Obligations (which shall include the full and unconditional release of such Seller and its Affiliates) that will be in effect at the Closing or, in the case of Seller Credit Support Obligations described in the foregoing clause (b), will use its commercially reasonable efforts to arrange for itself or one of its Subsidiaries to be substituted as the primary obligor thereon as of the Closing through an assumption, accession, acknowledgement or similar agreement (which shall include the full and unconditional release of Sellers and their respective Affiliates) with the beneficiary of the applicable Seller Credit Support Obligation. Whether or not Purchaser is able to satisfy the terms of the immediately preceding sentence, Purchaser shall indemnify Sellers and their respective Affiliates and Representatives from and against any and all Liabilities incurred by any of them relating to the Seller Credit Support Obligations. Purchaser agrees that, with respect to any Seller Credit Support Obligation, its reasonable best efforts pursuant to this Section 5.12 shall include, if requested, the execution and delivery by Purchaser, or by an affiliate of Purchaser acceptable to the beneficiary of such Seller Credit Support Obligation, of a replacement guarantee that is substantially in the form of such Seller Credit Support Obligation. All costs and expenses incurred in connection with providing the release or substitution of the Seller Credit Support Obligations shall be borne by PurchaserGuarantee.
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Seller Guarantees. Purchaser acknowledges that in the course of conduct of the business of SellersTransferred Subsidiary’s and KI’s business, Sellers UCB and their respective Affiliates may its affiliates have entered into various arrangements (a) in which guarantees, letters of credit, sureties, bonds or similar arrangements were issued by any Seller UCB or its Affiliates and affiliates or (b) in which such Seller UCB or its Affiliates affiliates are the primary obligors on other Contracts, in any such case to support or facilitate the business of SellersTransferred Subsidiary’s and KI’s business. The arrangements entered into by any Seller UCB and its Affiliates affiliates (other than the Transferred Subsidiary and KI) referred to in the foregoing clauses (a) and (b), solely to the extent relating to any Acquired Assets or Assumed Liabilities and including ) are those which are set forth in on Section 5.12, 5.11 of the Seller Disclosure Schedule and are hereinafter referred to as the “Seller Credit Support ObligationsGuarantees”. It is understood that the Seller Credit Support Obligations are not intended to continue after the Closing. Purchaser agrees that it shall use its reasonable best efforts to obtain replacements for the replacement Seller Credit Support Obligations (Guarantees, which shall include the full and unconditional release of such Seller and its Affiliates) that will be in effect at the Closing or, in the case of Seller Credit Support Obligations Guarantees described in the foregoing clause (b), will use its commercially reasonable efforts to either terminate the business transactions or programs of the Transferred Subsidiary or KI supported or facilitated by such Seller Guarantees or arrange for itself or one of its Subsidiaries subsidiaries to be substituted as the primary obligor thereon as of the Closing through an assumption, accession, acknowledgement or similar agreement (which shall include the full and unconditional release of Sellers and their respective Affiliates) with the beneficiary of the applicable Seller Credit Support ObligationGuarantee. Whether or not In the event that for any time Purchaser is able unable to satisfy the terms of the immediately preceding sentencesentence as of the Closing, subject to and in accordance with Article IX, Purchaser shall indemnify Sellers and their respective Affiliates and Representatives the Seller Indemnitees from and against any and all Liabilities Losses incurred by any of them relating to the Seller Credit Support Obligations. Purchaser agrees thatGuarantees, with respect and shall not amend, modify or renew any Contract subject to any a Seller Credit Support Obligation, Guarantee without the consent of UCB in its reasonable best efforts pursuant to this Section 5.12 shall include, if requested, the execution and delivery by Purchaser, or by an affiliate of Purchaser acceptable to the beneficiary of such Seller Credit Support Obligation, of a replacement guarantee that is substantially in the form of such Seller Credit Support Obligation. All costs and expenses incurred in connection with providing the release or substitution of the Seller Credit Support Obligations shall be borne by Purchasersole discretion.
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Seller Guarantees. Purchaser acknowledges that in the course of conduct of the business of Sellers, Sellers and their respective Affiliates may have entered into various arrangements (a) in which guarantees, letters of credit, sureties, bonds or similar arrangements were issued by any Seller or its Affiliates and (b) in which such Seller or its Affiliates are the primary obligors on other Contracts, in any such case to support or facilitate the business of Sellers. The arrangements entered into by any Seller and its Affiliates referred to in the foregoing clauses (a) and (b), solely Prior to the extent relating to any Acquired Assets or Assumed Liabilities and including those which are set forth in Section 5.12Closing, are referred to as the “Seller Credit Support Obligations”. It is understood that the Seller Credit Support Obligations are not intended to continue after the Closing. Purchaser agrees that it Buyers shall use its reasonable best efforts to obtain replacements (a) arrange for substitute bonds and guarantees to replace (i) the Seller Credit Support Obligations Guarantees set forth on Section 5.17 of the Disclosure Letter and (which shall include ii) any Seller Guarantees entered into in the ordinary course of business prior to the Closing or (b) assume all obligations under each Seller Guarantee and obtain from the creditor, beneficiary or other counterparty a full and unconditional irrevocable release (in a form satisfactory to the Sellers) of all parties liable, directly or indirectly, for reimbursement to the creditor or fulfillment of other obligations to a beneficiary or counterparty in connection with amounts drawn under the Seller Guarantees. To the extent the beneficiary or counterparty under any Seller Guarantee does not accept any such Seller substitute bond, guarantee of a Buyer or other obligation proffered by the Buyers, Buyers shall (A) indemnify, defend and its Affiliates) that will be in effect at the Closing or, in the case of Seller Credit Support Obligations described in the foregoing clause (b), will use its commercially reasonable efforts to arrange for itself or one of its Subsidiaries to be substituted as the primary obligor thereon as hold harmless each member of the Closing through an assumptionSeller Group against, accessionand reimburse each member of the Seller Group for, acknowledgement or similar agreement (which shall include all Liabilities incurred in connection with each Seller Guarantee from and after the full and unconditional release of Sellers Closing, including the Sellers’ and their respective Affiliates) with ’ expenses in maintaining such Seller Guarantees, whether or not any such Seller Guarantee is drawn upon or required to be performed, and shall in any event promptly reimburse the beneficiary relevant member of the applicable Seller Credit Support ObligationGroup to the extent any Seller Guarantee is called upon and any of the Sellers or their respective Affiliates makes any payment or is obligated to reimburse the party issuing the Seller Guarantee and (B) not without the Sellers’ prior written consent, amend in any manner adverse to the Sellers or any of their respective Affiliates, or extend (or permit the extension of), any Seller Guarantee or any obligation supported by any Seller Guarantee. Whether At the request of the Sellers, and at any time from and after the Closing a member of the Seller Group’s obligations under any Seller Guarantee have not been irrevocably released, the Buyers shall provide the Sellers with letters of credit or not Purchaser is able surety bond(s), issued by an issuer reasonably acceptable to satisfy the terms of Sellers, in an amount equal to the Seller Group’s entire potential Liability pursuant to the immediately preceding sentence. Any such letter of credit, Purchaser guarantee or other financial assurance obligation shall indemnify Sellers and their respective Affiliates and Representatives from and against any and all Liabilities incurred by any of them relating to not expire, terminate or be cancelled until the Seller Credit Support Obligations. Purchaser agrees that, Group is irrevocably and unconditionally fully released from the entire potential Liability with respect to any all Seller Credit Support Obligation, its reasonable best efforts pursuant to this Section 5.12 shall include, if requested, the execution and delivery by Purchaser, or by an affiliate of Purchaser acceptable to the beneficiary of such Seller Credit Support Obligation, of a replacement guarantee that is substantially in the form of such Seller Credit Support Obligation. All costs and expenses incurred in connection with providing the release or substitution of the Seller Credit Support Obligations shall be borne by PurchaserGuarantees.
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Seller Guarantees. Purchaser acknowledges that At or prior to the Closing, Buyer will use commercially reasonable efforts to obtain from the respective beneficiary, in the course of conduct form and substance reasonably satisfactory to Seller and effective as of the business Closing, valid and binding written releases of SellersSeller and any of its Affiliates, Sellers as applicable, from any Liability, whether arising before, on or after the Closing Date, under the Seller Guarantees set forth on Section 5.17 of the Seller Disclosure Letter, by providing substitute guarantees by Buyer or an Affiliate of Buyer approved by the applicable counterparty and their respective Affiliates may have entered into various arrangements (a) in which guarantees, containing terms that are as favorable to the counterparty as the terms of the applicable Seller Guarantee and by furnishing letters of credit, suretiesinstituting escrow arrangements, posting surety or performance bonds or similar making other arrangements were issued by as the counterparty may reasonably request; provided, however, if Buyer is unable to obtain the valid and binding written release of Seller under any such Seller Guarantees, then (i) Buyer shall indemnify Seller or its Affiliates Affiliate, as applicable, with respect to any claim for damages resulting from or attributable to such unreleased Seller Guarantee and (b) in which such to provide to Seller or its Affiliates are the primary obligors on other ContractsAffiliate, as applicable, security reasonably acceptable to Seller to provide immediate support in any respect of such case to support or facilitate the business of Sellers. The arrangements entered into by any Seller and its Affiliates referred to in the foregoing clauses (a) indemnity obligation and (b)ii) Buyer shall use its commercially reasonable efforts, solely to the extent relating to any Acquired Assets or Assumed Liabilities from and including those which are set forth in Section 5.12, are referred to as the “Seller Credit Support Obligations”. It is understood that the Seller Credit Support Obligations are not intended to continue after the Closing. Purchaser agrees that it shall use its reasonable best efforts , to obtain replacements for from the respective beneficiary, in form and substance reasonably satisfactory to Seller Credit Support Obligations (which shall include and effective as of the full Closing, valid and unconditional release binding written releases of Seller and any of its Affiliates under any such Seller and its Affiliates) that will be in effect at the Closing or, in the case of Seller Credit Support Obligations described in the foregoing clause (b), Guarantee. Buyer will use its commercially reasonable efforts to arrange for itself provide to any such beneficiary all financial and other information regarding Buyer or one of its Subsidiaries Affiliates as may be reasonably requested by such beneficiary to be substituted as facilitate such substitute guarantees. Notwithstanding anything to the primary obligor thereon as of contrary herein, the Parties acknowledge and agree that until the date that is ninety (90) days after the Closing through an assumptionDate, accessionSeller and its Affiliates shall not terminate, acknowledgement or similar agreement (which shall include the full and unconditional obtain release of Sellers and their respective Affiliates) with the beneficiary of the applicable Seller Credit Support Obligation. Whether or not Purchaser is able to satisfy the terms of the immediately preceding sentence, Purchaser shall indemnify Sellers and their respective Affiliates and Representatives from and against otherwise limit its Liability under any and all Liabilities incurred by any of them relating to the outstanding Seller Credit Support Obligations. Purchaser agrees that, with respect to any Seller Credit Support Obligation, its reasonable best efforts pursuant to this Section 5.12 shall include, if requested, the execution and delivery by Purchaser, or by an affiliate of Purchaser acceptable to the beneficiary of such Seller Credit Support Obligation, of a replacement guarantee that is substantially in the form of such Seller Credit Support Obligation. All costs and expenses incurred in connection with providing the release or substitution of the Seller Credit Support Obligations shall be borne by PurchaserGuarantees.
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Seller Guarantees. Purchaser (i) Buyer acknowledges that in Sellers have the course outstanding guarantees listed on Schedule 6(m) (collectively, the “Seller Guarantees”). Buyer and Sellers agree that, promptly following the date hereof, they shall contact the beneficiaries of conduct such Seller Guarantees, and Sellers and Buyer shall use commercially reasonable efforts and cooperate (including arranging meetings or telephone conferences with such beneficiaries) to obtain from the beneficiaries the release of Sellers from the Seller Guarantees effective as of the business Closing Date, and to obtain a consent of Sellers, Sellers and their respective Affiliates may have entered into various arrangements (a) in which such beneficiaries to accept replacement guarantees, letters of creditcredit or other financial assurances from the Lenders or other financial institutions. Sellers agree that following the Closing they shall continue any remaining Seller Guarantees in an aggregate amount not to exceed €40,000,000 (the “Continuing Guarantees”), suretiesand Buyer acknowledges that Sellers may terminate prior to Closing any Seller Guarantees in excess of the Continuing Guarantees; provided, bonds or similar arrangements were however, that Sellers shall only be required to keep (A) the Continuing Guarantees remaining outstanding for up to (and not more than) 30 days following the Closing Date, and (B) Continuing Guarantees equal to not more than €10,000,000 in the aggregate outstanding for 60 days following Closing. After the 60th day following Closing, Sellers shall not be obligated to maintain any Seller Guarantees. Sellers’ termination of Seller Guarantees in accordance with this Section 6(m) shall not constitute a breach of this Agreement and Sellers shall have no Liability to Buyer by reason thereof, including without limitation any Liability relating to termination of any Contract in accordance with its terms, the performance of which is subject to such Seller Guarantees. At Closing, Buyer will deliver counter guarantees in form and substance reasonably satisfactory to Sellers to be issued by the Lenders or such other financial institutions as are reasonably satisfactory to Sellers in favor of Sellers in respect of any Seller or its Affiliates Guarantees not terminated as of the Closing, and (b) Buyer shall cause such counter guarantees to remain in which place until such Seller or its Affiliates Guarantees are the primary obligors on other Contractsreleased. Sellers agree that, in any such case to support or facilitate the business of Sellers. The arrangements entered into by any Seller and its Affiliates referred to in the foregoing clauses (a) and (b), solely to the extent relating to any Acquired Assets or Assumed Liabilities and including those which are set forth in Section 5.12, are referred to as the “Seller Credit Support Obligations”. It is understood that the Seller Credit Support Obligations are not intended to continue after following the Closing. Purchaser agrees that it shall use its reasonable best efforts to obtain replacements , Sellers will not modify (except for the Seller Credit Support Obligations (which shall include the full and unconditional release termination of such Seller and its AffiliatesGuarantees in accordance with this Section 6(m)(i)) that will be in effect at the Closing orany such Seller Guarantees while they remain outstanding without Buyer’s prior written consent, in the case of Seller Credit Support Obligations described in the foregoing clause (b), will use its commercially reasonable efforts to arrange for itself or one of its Subsidiaries to be substituted as the primary obligor thereon as of the Closing through an assumption, accession, acknowledgement or similar agreement (which shall include the full and unconditional release of Sellers and their respective Affiliates) with the beneficiary of the applicable Seller Credit Support Obligation. Whether not be unreasonably withheld or not Purchaser is able to satisfy the terms of the immediately preceding sentence, Purchaser shall indemnify Sellers and their respective Affiliates and Representatives from and against any and all Liabilities incurred by any of them relating to the Seller Credit Support Obligations. Purchaser agrees that, with respect to any Seller Credit Support Obligation, its reasonable best efforts pursuant to this Section 5.12 shall include, if requested, the execution and delivery by Purchaser, or by an affiliate of Purchaser acceptable to the beneficiary of such Seller Credit Support Obligation, of a replacement guarantee that is substantially in the form of such Seller Credit Support Obligation. All costs and expenses incurred in connection with providing the release or substitution of the Seller Credit Support Obligations shall be borne by Purchaserdelayed.
Appears in 1 contract
Samples: Purchase Agreement (Celanese CORP)
