Parent Guarantee. (a) Parent hereby irrevocably and unconditionally, as primary obligor and not merely as surety, guarantees to Purchaser the full and timely payment by Seller when due of any obligation of Seller pursuant to this Agreement to the extent the same is required to be paid by Seller pursuant to the terms and subject to the conditions and limitations thereof. (b) Parent hereby represents and warrants to Purchaser as of the date hereof and as of the Closing as follows: (i) Parent is a corporation (A) duly incorporated, validly existing and in good standing under the Laws of the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted. (ii) Parent has all requisite corporate power and authority to enter into this Agreement and to carry out its obligations hereunder and to consummate the Contemplated Transactions. The execution and delivery by Parent of this Agreement has been duly authorized by all necessary action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and (iii) The execution, delivery and performance by Parent of this Agreement and the consummation of the Contemplated Transactions do not and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is bound. (c) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 Purchaser.
Appears in 1 contract
Sources: Equity Purchase Agreement (Twin River Worldwide Holdings, Inc.)
Parent Guarantee. Parent (a) Parent hereby irrevocably unconditionally guarantees the due and unconditionallypunctual payment and performance of all of Licensee’s obligations and commitments under this Agreement, as primary obligor and not merely as surety, guarantees to Purchaser the full and timely payment by Seller when due of any obligation of Seller pursuant to this Agreement to the extent the same is required to be paid by Seller pursuant to the terms and subject to the conditions and limitations thereof.
(b) without limiting the foregoing, hereby covenants to procure and cause Licensee and its Affiliates to take such actions that may be necessary to support and duly complete the performance of Licensee’s obligations and commitments under this Agreement. Parent hereby represents agrees that such obligations of Licensee and warrants to Purchaser as this Agreement may be extended, modified or renewed, in whole or in part, in accordance with the terms of this Agreement (without notice or further assent from Parent). This guaranty is an irrevocable guaranty of payment and performance (and not just of collection) by Licensee and shall continue in effect until [***], notwithstanding any extension, modification or renewal of the date hereof terms of this Agreement. This guarantee is primary and as is in no way conditioned upon any requirement that Licensor first attempt to collect or enforce any guaranteed obligation from or against Licensee. The obligations of the Closing as follows:
Parent hereunder shall be absolute and unconditional, and shall not be affected by or contingent upon (i) Parent is a corporation (A) duly incorporatedthe liquidation or dissolution of, validly existing and in good standing under or the Laws merger or consolidation of the State Licensee with or into any corporation, any sale or transfer by Licensee or all or any part of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
or their property or assets, or any assignment of this Agreement, (ii) Parent has all requisite corporate power and authority to enter into this Agreement and to carry out its obligations hereunder and to consummate the Contemplated Transactions. The execution and delivery by Parent of this Agreement has been duly authorized by all necessary action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganizationreceivership, insolvency, fraudulent transferreorganization or similar proceedings involving or affecting Licensee, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The executionany modification, delivery and performance by Parent of this Agreement and the consummation of the Contemplated Transactions do not and will notalteration, with amendment or without notice or lapse of time or both, conflict with, contravene, result in any violation addition of or default underto the Agreement; provided that, or give rise to a right if Licensee is no longer an Affiliate of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is bound.
(c) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with has approved any such transactionalteration, the successor to Parent amendment or purchaser of substantially all of Parent’s assets shall expressly assume in writing addition which would materially impact Parent’s obligations hereunder. Parent’s obligations under this Section 15.16 shall terminate upon [***]. Parent acknowledges that each of the waivers set forth in this Section 15.16 is made with full knowledge of its significance and consequences and 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, a copy of which written assumption agreement such waivers shall be provided effective only to Purchaserthe extent permitted by law.
Appears in 1 contract
Parent Guarantee. (a) Parent Guarantor hereby irrevocably and unconditionallyguarantees the full, as primary obligor and not merely as surety, guarantees to Purchaser the full complete and timely payment by Seller Buyer of its obligations under Article II when and as due under this Agreement. If any default shall be made by Buyer in the performance of any such payment obligations, then Parent Guarantor shall make such payment obligation upon written notice from the Sellers specifying such default. Prior to proceeding against Parent Guarantor under this Section 13.15, the Sellers shall first demand payment from Buyer in accordance with the applicable provisions of Seller pursuant this Agreement; provided, however, that the Sellers shall not be required to initiate legal proceedings against Buyer prior to proceeding against Parent Guarantor under this Agreement Section 13.15. The guarantee set forth in this Section 13.15 shall survive the Closing and shall expire and be of no further force or effect at the close of Business on the third Business Day after: (i) the Determination Date, if the Buyer has no obligation to pay an amount to the extent Sellers under Section 2.3(e); or (ii) if the same is required Buyer has an obligation to be paid by Seller pursuant pay an amount to the terms and subject to Sellers or the conditions and limitations thereofEscrow Agent under Section 2.3(e), the date on which such amount(s) have been paid.
(b) The Parent hereby Guarantor represents and warrants to Purchaser as of the date hereof and as of the Closing as follows:
(i) Parent Guarantor is a U.S. operating entity and issues debt publicly in the United States.
(ii) Parent Guarantor is a corporation (A) duly incorporatedorganized, validly existing and in good standing under the Laws laws of the State jurisdiction of Delaware and its incorporation.
(Biii) with all requisite Parent Guarantor has full corporate power and authority to own execute and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into deliver this Agreement and to carry out perform its obligations hereunder and to consummate the Contemplated Transactions. obligation hereunder.
(iv) The execution and delivery by Parent Guarantor of this Agreement has and the performance by Parent Guarantor of its obligations hereunder have been duly authorized approved by all necessary requisite corporate action on the part of Parent and no other proceedings Guarantor.
(corporate or otherwisev) on Except to the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent in accordance with its terms, except as such extent enforceability may be limited by bankruptcy, insolvency, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or moratorium and other Laws similar laws from time to time in effect affecting the enforceability of creditors’ rights and remedies generally and except to the extent enforcement of remedies may be limited by general equitable principles this Agreement constitutes the valid and legally binding obligation of equity (irrespective of whether enforcement is sought Parent Guarantor, enforceable against Parent Guarantor in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent accordance with the terms of this Agreement and the consummation of the Contemplated Transactions do not and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is boundAgreement.
(c) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 Purchaser.
Appears in 1 contract
Sources: Share Purchase Agreement (American Tire Distributors Holdings, Inc.)
Parent Guarantee. (a) Section 8.18.1 Parent hereby unconditionally and irrevocably and unconditionallyguarantees, as primary obligor and not merely as surety, guarantees to the due and punctual payment and discharge of each obligation of Purchaser and the full and timely payment performance by Seller when due Purchaser of any obligation its obligations, in each case, under the provisions of Seller pursuant to this Agreement and the other Documents to which Purchaser is a party (collectively, the “Obligations”).
Section 8.18.2 This is a guarantee of payment and performance, and Parent acknowledges and agrees that this guarantee is full and unconditional, and no release or extinguishment of Purchaser’s liabilities and obligations (other than in accordance with the terms of this Agreement or the Documents to which Purchaser is a party, as applicable), whether by decree in any bankruptcy proceeding or otherwise, will affect the continuing validity and enforceability of this guarantee. Parent hereby waives, for the benefit of Seller, (i) any right to require Seller, as a condition of payment or performance of Parent, to proceed against Purchaser or pursue any other remedies whatsoever, and (ii) to the fullest extent permitted 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, except to the extent the same that any such defense is required available to Purchaser under this Agreement.
Section 8.18.3 Seller shall not be paid by Seller pursuant obligated to file any claim relating to the terms and Obligations in the event that Purchaser becomes subject to an insolvency event, and the conditions failure of Seller to so file shall not affect Parent’s obligations hereunder. In the event that any payment to Seller in respect of the Obligations is rescinded or must otherwise be returned for any reason whatsoever, Parent shall remain liable hereunder with respect to the Obligations as if such payment had not been made. This is an unconditional guarantee of payment and limitations thereofnot of collectability.
Section 8.18.4 Parent agrees that its obligations hereunder shall remain absolute and unconditional and shall not be released or discharged, in whole or in part, or otherwise affected by (bi) the failure of Seller to assert any claim or demand or to enforce any right or remedy against Purchaser (or any of its permitted assignees) or any other Person; (ii) any change in time, place or manner of payment of any of the Obligations or any rescission, waiver, compromise, consolidation or other amendment to or modification of any of the terms or provisions of this Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations; (iii) the addition, substitution or release of Purchaser (or any of its permitted assignees) or any other Person; (iv) any change in the corporate existence, structure or ownership of Purchaser (or any of its permitted assignees) or any other Person; (v) any insolvency event or other similar proceeding affecting Purchaser (or any of its successors or permitted assigns) or any other Person; (vi) the existence of any claim, set-off or other right which Parent may have at any time against Purchaser or Seller or any of their respective Affiliates, whether in connection with the Obligations or otherwise; (vii) the adequacy of any other means Seller may have of obtaining repayment of any of the Obligations; (viii) the value, genuineness, validity, regularity, illegality or enforceability of this Agreement; (ix) any assignment by Purchaser of its rights or obligations under this Agreement and (x) any defenses available to Purchaser (or its permitted assignees), other than defenses available under this Agreement. Parent waives promptness, diligence, notice of the acceptance of this guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any Obligations and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of Purchaser or any other Person interested in the transactions contemplated by this Agreement, and all suretyship defenses generally. Parent acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by this Agreement and that the waivers set forth in this guarantee are knowingly made in contemplation of such benefits.
Section 8.18.5 As an inducement to Seller to enter into this Agreement, Parent hereby represents makes the following representations and warrants to Purchaser warranties, as of the date hereof and as of the Closing as follows:
(i) Effective Date, to Seller: Parent is a corporation (A) duly incorporated, validly existing corporation and is in good standing under the Laws laws of the State jurisdiction of Delaware its organization; the execution, delivery and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into this Agreement and to carry out its obligations hereunder and to consummate the Contemplated Transactions. The execution and delivery by Parent performance of this Agreement by Parent has been duly authorized by all necessary action on the part of Parent and no other proceedings (requisite corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize action; this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations obligation of Parent Parent, enforceable against Parent in accordance with its termsthe terms hereof, except as such enforceability may be limited by subject to the effect of bankruptcy, insolvency, reorganization, insolvencyreceivership, fraudulent transfer, moratorium, restructuring or moratorium and other Laws similar laws affecting creditors’ the rights and remedies of creditors generally and the effect of general principles of equity (irrespective equity, whether applied by a court of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The and the execution, delivery and performance by Parent of this Agreement will not violate or conflict with any other agreement or instrument to which it is a party.
Section 8.18.6 This guarantee shall remain in full force and effect and shall be binding on Parent and its successors and permitted assigns, and shall inure to the consummation benefit of Seller and its successors and permitted assigns, until all of the Contemplated Transactions do Obligations and all amounts payable under this guarantee have been indefeasibly paid, observed, performed or satisfied in full, except to the extent set forth herein. The obligations of Parent hereunder are independent of the obligations of Purchaser and a separate action or actions may be brought and prosecuted against Parent whether or not any action is brought against Purchaser and will not, with whether or without notice or lapse of time or both, conflict with, contravene, result not Purchaser is joined in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is boundsuch actions.
(c) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 Purchaser.
Appears in 1 contract
Parent Guarantee. (a) Parent hereby irrevocably absolutely and unconditionally, as primary obligor unconditionally guarantees (except for any conditions contained in this Section 11.18) the payment and not merely as surety, guarantees to Purchaser the full and timely payment by Seller performance when due of all obligations, liabilities and indebtedness of any obligation kind, nature and description of Seller pursuant to Company under this Agreement and any other agreements contemplated hereby (the “Company Obligations”). The Company Obligations may be enforced by Buyer against Parent without any requirement that Buyer first exercise its rights against Company. In determining when payment, performance or discharge of obligation by Parent is due, and the amount thereof, Parent may assert any defenses or limitations to the extent the same is required to such payment, performance or discharge, and any rights, remedies, counterclaims, reductions and setoffs that Parent or Company may have under this Agreement. Parent’s obligations under this Section 11.18 shall remain in full force and effect without regard to, and shall not be paid by Seller pursuant to the terms and subject to the conditions and limitations released, discharged, or in any way affected by, any circumstance or condition whatsoever (whether or not Parent shall have any knowledge thereof.
(b) except as may be expressly set forth herein. Parent hereby represents and warrants to Purchaser as waives each of the date hereof and as of the Closing as follows:
following: (i) Parent is a corporation (A) duly incorporated, validly existing and in good standing under the Laws notice of acceptance of the State Company Obligations or of Delaware and (B) with the existence or creation of all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
or any of the Company Obligations; (ii) Parent has presentment, demand, protest or notice of dishonor, nonpayment or other default with respect to any of the Company Obligations and all requisite corporate power and authority other notices whatsoever (except for notices to enter into this Agreement and be provided to carry out its obligations hereunder and to consummate the Contemplated Transactions. The execution and delivery by Parent of this Agreement has been duly authorized by all necessary action on the part of Company, Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize counsel in accordance with this Agreement or applicable Law); (iii) any requirement that Buyer institute suit or otherwise exhaust its rights or remedies against Company or against any other Person prior to enforcing any rights they have hereunder or otherwise against Parent; and (iv) all suretyship defenses generally (other than defenses to the consummation payment of the Contemplated Transactionsobligations that are available to Parent or Company under this Agreement). Nothing contained in this Section 11.18 shall limit Parent’s ability to assert as a defense to any claim any defense that would be available to Company if the claim were asserted directly against Company. This Agreement has been duly executed and delivered by Parent Parent, and, assuming this Agreement constitutes the valid and constitutes (assuming the due authorization, execution and delivery by binding obligation of the other parties hereto) , this Section 11.18 constitutes the legal, valid and binding obligations obligation of Parent Parent, enforceable against Parent in accordance with its terms, except subject, as such enforceability may be limited by bankruptcyto enforcement, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement and the consummation of the Contemplated Transactions do not and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is bound.
(c) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 PurchaserBankruptcy and Equity Exception.
Appears in 1 contract
Sources: Securities Purchase Agreement (Isle of Capri Casinos Inc)
Parent Guarantee. (a) The Parent Guarantor hereby absolutely, unconditionally and irrevocably guarantees to the Company the full, complete and unconditionallytimely performance, subject to the terms and conditions hereof, by Parent and Merger Sub of each and every obligation of Parent and Merger Sub under this Agreement. The Parent Guarantor hereby also agrees to fully comply as to itself with Section 6.2. If any default shall be made by Parent or Merger Sub in the performance of any such obligations, then the Parent Guarantor shall perform or cause to be performed such obligations immediately upon written notice from the Company specifying the default. Prior to proceeding against the Parent Guarantor hereunder (except with respect to the second sentence of this Section 9.12(a)), the Company shall first demand performance from Parent and/or Merger Sub, as primary obligor applicable, in accordance with the applicable provisions of this Agreement; provided, however, that the Company shall not be required to initiate legal proceedings against Parent or Merger Sub prior to proceeding against the Parent Guarantor or demand performance therefrom more than once. Subject to the terms and not merely as suretyconditions hereof, guarantees the Parent Guarantor waives (i) any and all defenses specifically available to Purchaser the a guarantor (other than performance in full by Parent and/or Merger Sub) and timely payment by Seller when due (ii) any notices, including any notice of any obligation amendment of Seller this Agreement or waiver or other similar action granted pursuant to this Agreement to and any notice of acceptance. The guarantee set forth in this Section 9.12 shall be deemed a continuing guarantee and shall remain in full force and effect until the extent the same satisfaction in full of all obligations of Parent and Merger Sub under this Agreement. The guarantee set forth in this Section 9.12 is required to be paid by Seller pursuant to the terms a primary guarantee of performance and subject to the conditions and limitations thereofnot just of collection.
(b) The Parent hereby represents Guarantor is duly incorporated and warrants to Purchaser is valid and subsisting as of the date hereof and as of the Closing as follows:
(i) Parent is a corporation (A) duly incorporated, validly existing and in good standing under the Laws of the State of Delaware and (B) with Delware. The Parent Guarantor has all requisite corporate partnership power and authority and has taken all action necessary to own execute and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into deliver this Agreement and to carry out perform its obligations hereunder and to consummate the Contemplated Transactions. The execution and delivery by Parent of this Agreement has been duly authorized by all necessary action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactionshereunder. This Agreement has been duly and validly executed and delivered by the Parent and constitutes (Guarantor and, assuming the due authorization, execution and delivery by each of the other parties hereto, this Section 9.12 and the provisions referenced in Section 9.12(d) the legal, constitute a valid and binding obligations obligation of the Parent Guarantor, enforceable against Parent it in accordance with its terms, except subject, as such enforceability may be limited by bankruptcyto enforceability, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement and to the consummation of the Contemplated Transactions do not and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is boundEnforceability Exceptions.
(c) Parent Except to the extent of the expiration of all statutes of limitations under applicable Law, no delay of the Company in the exercise of, or failure to exercise, any rights under the guarantee set forth in this Section 9.12 shall not assign (whether by operation operate as a waiver of Law or otherwise) its such rights, interests or obligations hereunder to a waiver of any other Person without rights, or a release of the prior written consent Parent Guarantor from any of Purchaserits obligations hereunder. Any attempted assignment The Parent Guarantor consents to the renewal, compromise, extension, acceleration or other changes in violation the time of payment of, or other changes in the terms of the obligations subject to, the guarantee set forth in this Section 9.17(c) shall be null and void; provided9.12 or any part thereof, thatin each case, notwithstanding anything to the contrary contained extent Parent has agreed to such change in writing in accordance with this Agreement.
(d) The Parent Guarantor hereby agrees to be bound by Sections 6.2, nothing shall restrict Parent from the sale9.2, transfer9.4, exchange9.5, assignment or other disposition by any means of a majority of its equity securities9.7, or all or substantially all of its assets; provided9.8, however9.9, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 Purchaser9.10 and 9.11.
Appears in 1 contract
Sources: Merger Agreement (KSW Inc)
Parent Guarantee. (a) Parent hereby irrevocably and unconditionally, as primary obligor and not merely as surety, guarantees to Purchaser the full and timely payment by Seller when due of any obligation of Seller pursuant to this Agreement to the extent the same is required to be paid by Seller pursuant to the terms and subject to the conditions and limitations thereof.
(b) Parent hereby represents and warrants to Purchaser as As of the date hereof and as of the Initial Closing Date, Parent represents and warrants to Sellers as follows:
(i) Parent is a corporation (A) is a joint stock corporation, duly incorporatedorganized, validly existing and in good standing under the Laws of the State of Delaware Japan and (B) with all has the requisite corporate power and authority to own own, lease and operate its properties and to carry on its business businesses as presently now being conducted, except where the failure to have such power or authority would not prevent or materially delay the consummation of the transactions contemplated hereby.
(ii) Parent has all the requisite corporate organizational power and authority to enter into this Agreement execute and to deliver, consummate the transactions contemplated by and carry out its obligations hereunder and to consummate the Contemplated Transactionsunder this Agreement. The execution and delivery by Parent of this Agreement has and the consummation by Parent of the transactions contemplated hereby have been duly and validly authorized by all necessary requisite corporate action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated TransactionsParent. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the Parent. Assuming due authorization, execution and delivery by the other parties hereto) , this Agreement constitutes the legal, valid and binding obligations obligation of Parent enforceable against Parent in accordance with its terms, except as such to the extent that enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); andthe Enforceability Exceptions.
(iii) The Except for (A) the Governmental Approvals set forth in the Disclosure Schedules, (B) the Change of Control Consents and the Guarantee Consents and (C) the notification and waiting period requirements of the HSR Act, the execution and delivery by Parent of this Agreement and the performance by Parent of its obligations under this Agreement do not: (1) require any Governmental Approval to be obtained or made by Parent; or (2) require any Third Party Approval to be obtained by Parent, other than, in each case, (x) those that may be required solely by reason of Sellers or the Group Companies (as opposed to any other third party’s) participation in the transactions contemplated hereby and (y) as would not reasonably be expected to materially impair or delay the ability of Parent to consummate the transactions contemplated by, or perform its obligations under, this Agreement.
(iv) Provided that all consents, approvals, authorizations and other actions described in Section 11.17(a)(iii) have been obtained or taken, the execution, delivery and performance by Parent of this Agreement and the consummation by Parent of the Contemplated Transactions do transactions contemplated hereby will not and will not(A) conflict with or result in any violation or breach of any provision of Parent’s Governing Documents, (B) conflict with or result in any violation or breach of, or cause the loss of any benefit under, or constitute (with or without due notice or lapse of time or both, conflict with, contravene, result in any violation of ) a default (or default under, cause or give rise to a any right of termination, cancellation or acceleration acceleration) under any of the terms, conditions or provisions of any obligation under, material Contract or require a consent Permit or waiver under, (AC) conflict with or violate in any material respect any Law or Governmental Order applicable to Parent, except, in the case of clause (B) any terms and (C), as would not reasonably be expected to materially impair or conditions delay the ability of Parent’s Charter DocumentsParent to consummate the transactions contemplated by, or (C) any material Contract to which Parent is a party or by which Parent or any of perform its assets is boundobligations under, this Agreement.
(cb) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything Subject to the contrary contained in conditions and limitations set forth below, Parent hereby absolutely, irrevocably and unconditionally guarantees, as principal and not as surety, to Sellers, the due and punctual payment of all payment obligations of Buyer under this Agreement, nothing shall restrict Parent from including the salepayment obligations contemplated under Articles II, transferVI, exchangeIX, assignment or other disposition by any means of a majority of its equity securitiesand X, or all or substantially all of its assets; provided, however, in connection with any such transaction(collectively, the successor to Parent or purchaser of substantially 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 Purchaser“Guaranteed Obligations”).
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (Icahn Enterprises Holdings L.P.)
Parent Guarantee. (a) Parent hereby irrevocably In order to induce the Agents and unconditionally, as primary obligor and not merely as surety, guarantees to Purchaser the full and timely payment by Seller when due of any obligation of Seller pursuant to this Agreement to the extent the same is required to be paid by Seller pursuant to the terms and subject to the conditions and limitations thereof.
(b) Parent hereby represents and warrants to Purchaser as of the date hereof and as of the Closing as follows:
(i) Parent is a corporation (A) duly incorporated, validly existing and in good standing under the Laws of the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority Lenders to enter into this Agreement and to carry out its obligations hereunder extend credit hereunder, Intelsat ▇▇▇▇▇▇▇ and Intelsat Bermuda (together the “Parent Guarantors”) hereby agree with the Lenders as follows: Parent Guarantors hereby unconditionally and irrevocably guarantee as primary obligors and not merely as surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Obligations of the Borrower to consummate the Contemplated TransactionsLenders. The execution If any or all of the Obligations of the Borrower to the Lenders becomes due and delivery payable hereunder, Parent Guarantors irrevocably and unconditionally promise to pay such indebtedness to the Lenders, or order, on demand, together with any and all expenses which may be incurred by the Lenders in collecting any of the Obligations. This Parent Guarantee is a guaranty of this Agreement has been duly authorized by payment and not of collection. If claim is ever made upon any Lender for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all necessary action on the or part of Parent and no other proceedings said amount by reason of (corporate i) any judgment, decree or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement and the consummation of the Contemplated Transactions do not and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration order of any obligation under, court or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent administrative body having jurisdiction over such payee or any of its assets is bound.
property or (cii) Parent shall not assign (whether any settlement or compromise of any such claim effected in good faith by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection such payee with any such transactionclaimant (including the Borrower), the successor to then and in such event Parent Guarantors agree that any such judgment, decree, order, settlement or purchaser of substantially all of Parent’s assets shall expressly assume in writing Parent’s obligations hereunder, a copy of which written assumption agreement compromise shall be provided binding upon it, notwithstanding any revocation of this Parent Guarantee or other instrument evidencing any liability of the Borrower, and Parent Guarantors shall be and remain liable to Purchaserthe aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 1 contract
Parent Guarantee. Parent Guarantor hereby (ai) Parent hereby agrees to take any and all actions necessary to cause Purchaser to perform all of their respective obligations under this Agreement in accordance with their respective terms (including with respect to the consummation of the Transaction, the payment of any and all amounts required pursuant to Article III and, if applicable, any amounts payable pursuant to Section 10.2) (collectively, the “Guaranteed Obligations”) and (ii) absolutely, unconditionally and irrevocably and unconditionallyguarantees, as primary obligor and not merely as surety, guarantees to Purchaser the full and timely payment complete performance by Seller when due Purchaser of the Guaranteed Obligations, and Parent Guarantor shall be liable for any breach by Purchaser of any obligation of Seller pursuant the Guaranteed Obligations. This is a guarantee of payment (not of collection) and performance. The Company shall not be obligated to file any claim relating to the Guaranteed Obligations in the event that Purchaser becomes subject to bankruptcy, reorganization or similar proceedings, and the failure of the Company to so file shall not affect Parent Guarantor’s obligations hereunder. In the event that any payment to the Company in respect of the Guaranteed Obligations is rescinded or must otherwise be returned for any reason whatsoever (other than in circumstances where Parent Guarantor is not liable to make such payment), Parent Guarantor shall remain liable hereunder with respect to the Guaranteed Obligations as if such payment had not been rescinded or returned. Parent Guarantor hereby waives promptness, diligence, presentment, demand of performance, demand of payment, filing of any claim, any right to require any proceeding first against Purchaser, protest, notice of any kind and all demands whatsoever and all suretyship defenses generally in connection with the performance of its covenants, agreements and obligations set forth in this Agreement Section 12.17. Notwithstanding the foregoing, to the extent Purchaser is relieved of all or any portion of the same is required to be paid Guaranteed Obligations by Seller pursuant to satisfaction thereof on the terms and subject to the conditions set forth in this Agreement or pursuant to any other agreement with the Seller, Parent Guarantor shall be similarly relieved of its corresponding obligations under this Section 12.17. Parent Guarantor acknowledges that it will receive substantial direct and limitations thereof.
(b) Parent hereby represents and warrants to Purchaser as of indirect benefits from the date hereof and as of the Closing as follows:
(i) Parent is a corporation (A) duly incorporated, validly existing and in good standing under the Laws of the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into transactions contemplated by this Agreement and to carry out its obligations hereunder and to consummate that the Contemplated Transactions. The execution and delivery by Parent of this Agreement has been duly authorized by all necessary action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent waivers set forth in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement and the consummation of the Contemplated Transactions do not and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is bound.
(c) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained 12.17 are knowingly made in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means contemplation of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 Purchaserbenefits.
Appears in 1 contract
Parent Guarantee. (a) The Parent hereby irrevocably and unconditionally, as primary obligor and not merely as surety, guarantees to Purchaser the full and timely payment by Seller when due of any obligation of Seller pursuant to this Agreement to the extent the same is required to be paid by Seller pursuant to the terms and subject to the conditions and limitations thereof.
(b) Parent hereby represents and warrants to Purchaser as of the date hereof and as of the Closing as follows:
that: (i) the Parent is a corporation (A) duly incorporated, validly existing and in good standing under the Laws of the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
Delaware; (ii) the Parent has all requisite corporate power and authority to enter into this Agreement execute, deliver and to carry out perform its obligations hereunder under this Agreement; (iii) the execution, delivery and to consummate the Contemplated Transactions. The execution and delivery by Parent performance of this Agreement has Agreement, and the consummation of the transactions contemplated hereby, have been duly authorized by all necessary corporate action on the part of Parent and no other proceedings the Parent; (corporate or otherwiseiv) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by an authorized officer of the Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the a legal, valid and binding obligations obligation of Parent the Parent, enforceable against the Parent in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring applicable Bankruptcy Laws or other Laws affecting creditors’ rights and remedies generally and by general principles of equity (irrespective of whether enforcement is sought considered in a proceeding in equity or at law or in equitylaw); and
(iiiv) The the execution, delivery and performance by the Parent of this Agreement and the consummation of the Contemplated Transactions transactions contemplated hereby and thereby do not and will notnot conflict with, result in a breach or violation of, constitute a default (with or without notice or lapse of time time, or both, conflict with, contravene, result in any violation of or default ) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to a loss of a benefit under, or require a consent or waiver under, any provision of: (A) any Law or Order applicable to organizational document of the Parent, ; (B) any terms applicable Law or conditions of Parent’s Charter Documents, any Judgment to which the Parent or its properties or assets may be subject; (C) any material Contract other agreement (whether written or oral), commitment or instrument to which the Parent is a party or by which the Parent or any of its assets is bound; (vi) no consent, approval, license order, authorization, registration, declaration or filing with or of any Governmental Entity or other Person is required to be done or obtained by the Parent in connection with the execution, delivery and performance by the Parent of this Agreement, and (vii) the Parent has the financial capacity to pay and perform its obligations pursuant to the Parent Guarantee, and all funds necessary for the Parent to pay and perform its obligations pursuant to the Parent Guarantee shall be available to the Parent for so long as the Parent Guarantee shall remain in effect.
(b) As a material inducement to the Buyer’s willingness to enter into this Agreement and perform its obligations hereunder, the Parent (i) hereby unconditionally guarantees the due and punctual payment and performance of all of the Seller’s obligations and commitments under this Agreement and any related documents, and (ii) hereby further covenants to procure and cause the Seller to take such actions necessary to support and duly complete the due and punctual payment and performance of the Seller’s obligations and commitments under this Agreement and any related documents in relation to the Buyer’s exercise of its rights and remedies under this Agreement and any related documents (collectively, (i) and (ii) this “Parent Guarantee”). This Parent Guarantee is an irrevocable guarantee of payment and performance (and not just of collection) and shall continue in effect notwithstanding any extension or modification of the terms of this Agreement or any other Transaction Document, any assumption of any such guaranteed obligations by any other party or Person or any other act or event that might otherwise operate as a legal or equitable discharge of the Parent. The Parent hereby waives all its rights to subrogation arising out of any payment or performance by the Parent under this Parent Guarantee. The obligations of the Parent hereunder shall be absolute and unconditional, and shall not be affected by or contingent upon (a) the merger or consolidation of the Seller with or into any corporation or other Person, or any sale or transfer by the Seller of all or any part of its or their property or assets, (b) a Bankruptcy Event affecting the Seller, or (c) any modification, alteration, amendment, supplement, waiver or addition of or to this Agreement or any related document. The Parent shall not assign (whether by operation hereby waives all suretyship defenses and protest, notice of Law or otherwise) its rightsprotest, interests or obligations hereunder to demand for performance, diligence, notice of any other Person without action at any time taken or omitted by the prior written consent Buyer and, generally, all demands and notices of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, every kind in connection with any such transactionthis Parent Guarantee, and the successor to Parent or purchaser of substantially all of Parent’s assets shall expressly assume in writing ParentSeller’s obligations hereunderin this Agreement and any related documents hereby guaranteed, a copy of and which written assumption agreement the Parent may otherwise assert against the Buyer. This Parent Guarantee shall continue to be effective or shall be provided reinstated, as the case may be, if at any time payment or performance of any of the obligations of the Seller under this Agreement or any related document is rescinded or must otherwise be restored or returned by the Seller upon a Bankruptcy Event of the Seller or otherwise. The Parent acknowledges that each of the waivers set forth in this Parent Guarantee is made with full knowledge of its significance and consequences and under the circumstances the waivers are reasonable and not contrary to Purchaserpublic policy. If any of said waivers is determined to be contrary to any applicable law or public policy, such waivers shall be effective only to the extent permitted and required by applicable law.
Appears in 1 contract
Sources: Purchase and Sale Agreement (KalVista Pharmaceuticals, Inc.)
Parent Guarantee. (a) Parent Buyer Guarantor hereby (i) agrees to cause Buyer and its Affiliates to make all required payments under this Agreement and each other agreement contemplated hereby to which Buyer is party, (ii) to perform and discharge each and every obligation of Buyer and any of its Affiliates under this Agreement and each other agreement contemplated hereby to which Buyer or an Affiliate of Buyer is a party and (iii) absolutely, unconditionally and irrevocably and unconditionally, as primary obligor and not merely as surety, guarantees to Purchaser Seller, and agrees to be jointly and severally liable with Buyer for, the full prompt payment, discharge and timely payment performance of all amounts and obligations due or owing to Seller by Seller when due Buyer or any Affiliate of any obligation of Seller pursuant to Buyer under this Agreement to the extent the same is required to be paid by Seller pursuant to the terms and subject to the conditions and limitations thereofnow or hereafter existing.
(b) Parent Seller Guarantor hereby represents and warrants to Purchaser as of the date hereof and as of the Closing as follows:
(i) Parent agrees to cause Seller and each Seller Affiliate to make all required payments under this Agreement and each other agreement contemplated hereby to which Seller is a corporation (A) duly incorporatedparty, validly existing and in good standing under the Laws of the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power to perform and authority to enter into discharge each and every obligation of Seller and any Seller Affiliate under this Agreement and each other agreement contemplated hereby to carry out its obligations hereunder which Seller or a Seller Affiliate is a party and to consummate the Contemplated Transactions. The execution and delivery by Parent of this Agreement has been duly authorized by all necessary action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The executionabsolutely, delivery unconditionally and irrevocably guarantees to Buyer, and agrees to be jointly and severally liable with Seller for, the prompt payment, discharge and performance of all amounts and obligations due or owing to Buyer by Parent of Seller or any Seller Affiliate under this Agreement and the consummation of the Contemplated Transactions do not and will not, with now or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is boundhereafter existing.
(c) Parent The provisions of this Article 13 shall not assign apply to Buyer Guarantor and Seller Guarantor as the context requires to give full effect to, and enforce, the terms and conditions of clauses (whether by operation of Law or otherwisea) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation and (b) of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 Purchaser13.11.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pembina Pipeline Corp)
Parent Guarantee. (a) 5.16.1 Parent hereby unconditionally and irrevocably and unconditionally, as primary obligor and not merely as surety, guarantees to Seller the due and punctual payment and performance by Purchaser the full (and timely payment by Seller when due any permitted assignees thereof) of any obligation and all past, present and future Liabilities of Seller pursuant to Purchaser under this Agreement to and the extent the same is required to be paid by Seller pursuant other Operative Agreements (subject to the terms and subject to conditions hereof and thereof), including the conditions due and limitations thereofpunctual payment of the Assumed Obligations and all costs of collection and expenses, including reasonable attorneys’ fees, incurred by Seller in enforcing the terms thereof and of this Section 5.16 (the “Purchaser Guaranteed Obligations”). The foregoing sentence is an absolute, unconditional and continuing guaranty of the full and punctual discharge and performance of the Purchaser Guaranteed Obligations, and is a guaranty of payment, not collection. Should a default occur in the discharge or performance of all or any portion of the Purchaser Guaranteed Obligations when due, the obligations of Parent hereunder shall become immediately due and payable.
(b) 5.16.2 Parent hereby represents and warrants to Purchaser as of the date hereof and as of the Closing Seller as follows:
: (i) Parent is a corporation (A) limited liability company duly incorporatedformed, validly existing and in good standing under the Laws laws of the State of Delaware and (B) with all has the requisite corporate organizational power and authority to own execute and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into deliver this Agreement and to carry out perform its obligations hereunder under this Section 5.16; (ii) the execution, delivery and to consummate the Contemplated Transactions. The execution and delivery by Parent performance of this Agreement by Parent has been duly authorized by all necessary action organizational action, and no other proceedings or actions on the part of Parent and no other proceedings is necessary therefor; (corporate or otherwiseiii) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent and is enforceable against Parent in accordance with its terms, except as such enforceability may be limited by subject to bankruptcy, insolvency, reorganization, insolvency, fraudulent transfer, moratorium, restructuring moratorium and other similar Laws of general application relating to or other Laws affecting creditors’ rights and remedies generally and to general principles of equity principles; (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iiiiv) The the execution, delivery and or performance by Parent of this Agreement and the consummation of the Contemplated Transactions do will not and will notcontravene, conflict with or without notice or lapse of time or both, conflict with, contravene, result in any a violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, Organizational Documents or (C) any material Contract Laws to which Parent is a party subject or bound, and there is no Action, suit, claim or legal, administrative or arbitral proceeding pending or, to its knowledge, threatened by or against it with respect to any of the transactions contemplated by this Section 5.16; and (v) at the Closing, Parent will have sufficient funds available to pay and perform all of its obligations under this Section 5.16.
5.16.3 This guarantee shall not be impaired whatsoever by any modification or other alteration of any of the Purchaser Guaranteed Obligations, including the modification or amendment (whether material or otherwise) of any obligation of Parent or Purchaser under this Agreement or any other Operative Agreements. The liability of Parent is direct and unconditional and may be enforced without requiring Seller first to resort to any other right, remedy or security. Parent hereby waives any defense of Purchaser or any other Person of any kind and the right of subrogation, reimbursement or indemnity whatsoever, and any right of recourse to security for the debts and obligations of Purchaser until all of the Purchaser Guaranteed Obligations are paid in full, and waives any notice of acceptance; presentment and protest of any instrument, and notice thereof; notice of default; and all other notices to which each might otherwise be entitled. Nothing shall discharge or satisfy the liability of Parent hereunder except the full payment and performance of all of Purchaser Guaranteed Obligations to Seller. Any and all present and future debts and obligations of Purchaser to Parent are hereby waived and postponed in favor of, and subordinated to, the full payment and performance of the Purchaser Guaranteed Obligations.
5.16.4 Parent further agrees that this guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment of all or any part of the Purchaser Guaranteed Obligations is rescinded or otherwise must be restored by Seller to Purchaser or to the creditors of Purchaser or any representative of Purchaser or representative of its creditors upon the insolvency, bankruptcy or reorganization of Purchaser, or to Parent or the creditors of Parent or any representative of its assets is bound.
(c) Parent shall not assign (whether by operation or representative of Law the creditors of Parent upon the insolvency, bankruptcy or reorganization of Parent, or otherwise) its rights, interests or obligations hereunder to any other Person without all as though such payments had not been made. Parent further agrees that in the prior written consent of event that Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially all of Parent’s assets or Purchaser’s assets, are acquired by any third party (by stock sale, asset sale, merger, consolidation or otherwise), then as a condition to such acquisition, Parent shall expressly assume in writing Parent’s cause the purchaser thereof to agree to be jointly and severally bound with Parent for its obligations hereunder, provided, that this sentence shall not apply to the extent that Seller has (a) coverage from Purchaser’s insurance in respect of the environmental Liabilities assumed by Purchaser or a copy third party under this Agreement and (b) the benefit of which written any indemnification against or assumption agreement shall be of any such environmental Liability provided to Purchaserby a third party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Resolute Forest Products Inc.)
Parent Guarantee. (a) Parent Guarantor hereby unconditionally and irrevocably and unconditionally, as primary obligor and not merely as surety, guarantees to Purchaser the full and timely prompt performance by Buyer of Buyer’s covenants, agreements and obligations under this Agreement and the other Transaction Documents (such obligation, the “Guaranteed Obligations”). This is a guarantee of performance and payment by Seller when due and not only of collection. Guarantor waives promptness, diligence, presentment, demand of performance, demand of payment, filing of any obligation claim, any right to require any proceeding first against Buyer, protest, notice of any kind (including notices of acceptance hereof and of defaults hereunder) and all demands whatsoever and all suretyship defenses generally in connection with the performance of its covenants, agreements and obligations set forth in this Agreement. Without limiting the foregoing, Guarantor shall be responsible for the payment of all expenses and charges (including without limitation all court costs and reasonable attorneys’ fees) paid or incurred by any Seller Related Party in realizing upon any of the obligations guaranteed pursuant to this Agreement to the extent the same is required to be paid by Seller pursuant to the terms and subject to the conditions and limitations thereofSection 8.21(a).
(b) Parent hereby Guarantor represents and warrants to Purchaser as of the date hereof and as of the Closing as follows:
Buyer that (i1) Parent Guarantor is a corporation (A) duly incorporatedorganized, validly existing and in good standing under the Laws of Delaware; (2) Guarantor has the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into this Agreement and to carry out perform its obligations hereunder hereunder; (3) the execution, delivery and to consummate performance of this Agreement by Guarantor and the Contemplated Transactions. The execution consummation of the transactions contemplated hereby have been duly and delivery validly authorized by Parent all requisite action on the part of Guarantor; (4) this Agreement has been duly authorized by all necessary action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly validly executed and delivered by Parent Guarantor; and constitutes (assuming 5) the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement does not, and the consummation of the Contemplated Transactions do not transactions contemplated herein and the compliance with the provisions herein will not, conflict with or without notice violate any applicable Law or lapse of time agreement binding upon Guarantor, nor require authorization, consent or bothapproval of, conflict or filing with, contraveneany Governmental Authority, result except in each case as would not impact Guarantor’s ability to perform or comply with its obligations hereunder in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is boundrespect.
(c) Parent shall not assign (whether To the maximum extent permitted by operation Law, no modification, limitation or discharge of Law or otherwise) its rights, interests or obligations hereunder to liability of any other Person without guarantor (if any) of the prior written consent Guaranteed Obligations or of Purchaser. Any attempted assignment Buyer under this Agreement or any related agreement, instrument or document arising out of, or by virtue of, any bankruptcy, arrangement, reorganization or similar proceedings for release of debtors under federal or state law shall affect the liability of Guarantor hereunder in violation any manner whatsoever, and Guarantor hereby waives all rights and benefits which might otherwise accrue to it by reason of any such proceeding.
(d) For avoidance of doubt, the provisions of Sections 8.02 through 8.13 and Section 8.19 are incorporated into this Section 9.17(c) 8.21 and any references to “Party” in such Sections shall be null and void; provided, that, notwithstanding anything deemed to include the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 PurchaserGuarantor.
Appears in 1 contract
Parent Guarantee. The Parent agrees to take all action necessary to cause the Purchaser or the Surviving Corporation, as applicable, and, during the period between the Acceptance Time and the Effective Time, the Company, to perform all of its agreements, covenants and obligations under this Agreement. The Parent unconditionally guarantees to the Company the full and complete performance by the Purchaser or the Surviving Corporation, as applicable, of its respective obligations under this Agreement and shall be liable for any breach of any representation, warranty, covenant or obligation of the Purchaser or the Surviving Corporation, as applicable, under this Agreement. The Parent hereby waives diligence, presentment, demand of performance, filing of any claim, any right to require any proceeding first against the Purchaser or the Surviving Corporation, as applicable, protest, notice and all defenses and demands whatsoever in connection with the performance of its obligations set forth in this Section 10.14. The Parent shall not have any right of subrogation, reimbursement or indemnity whatsoever, nor any right of recourse to security for any of the agreements, covenants and obligations of the Purchaser or the Surviving Corporation under this Agreement. The Parent, the Purchaser and the Company have executed this Agreement as of the date set forth in the initial caption of this Agreement. WONDER GROUP, INC. By: /s/ ▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇ Title: Chief Executive Officer BASIL MERGER CORPORATION By: /s/ ▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇ Title: Chief Executive Officer BLUE APRON HOLDINGS, INC. By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: President and Chief Executive Officer All terms defined in the Agreement and Plan of Merger (the “Agreement”) of which this Annex I is a part and used in this Annex I shall have the meanings assigned to such terms in the Agreement. Notwithstanding any other provisions of the Offer or the Agreement, the Purchaser shall not be required to accept for purchase or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act, to pay for any shares of Company Common Stock tendered pursuant to the Offer (and not validly withdrawn) if:
(a) Parent hereby irrevocably and unconditionallyimmediately prior to the expiration of the Offer (as extended in accordance with the Agreement, as primary obligor the “Expiration Time”), the number of shares of Company Common Stock validly tendered and not merely as surety, guarantees to Purchaser the full and timely payment by Seller when due of any obligation of Seller validly withdrawn (excluding shares tendered pursuant to this Agreement to guaranteed delivery procedures that have not yet been “received,” as such term is defined by Section 251(h)(6)(f) of the extent DGCL), together with any shares of Company Common Stock owned by the same is required to be paid by Seller pursuant to Purchaser, the terms and subject to Parent or any wholly-owned Subsidiary of the conditions and limitations thereof.Parent, does not equal at least one share more than one-half of all shares of Company Common Stock then outstanding (the “Minimum Condition”);
(b) Parent hereby represents and warrants to Purchaser as at any time on or after the date of the date hereof Agreement and as before the expiration of the Closing as followsOffer, any of the following shall occur and be continuing and shall not have resulted from the breach by the Parent or the Purchaser of any of their obligations under the Agreement:
(i) Parent is a corporation any Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any order, executive order, stay, decree, judgment or injunction (Apreliminary or permanent) duly incorporatedor statute, validly existing and in good standing under rule or regulation which has the Laws effect of prohibiting the consummation of the State Offer or making the Merger illegal or otherwise prohibiting consummation of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.the Offer, the Merger or the other transactions contemplated hereby;
(ii) Parent has (A) the representations and warranties of the Company contained in clause (a) of Section 3.7 of the Agreement are not true and correct in all requisite corporate power respects as of the date of the Agreement and authority to enter into the Expiration Time; (B) any of the representations and warranties set forth in Sections 3.1, 3.3(c), 3.3(d), 3.4(a), 3.4(b)(i), 3.4(d), 3.19 and 3.21 of the Agreement shall not be true, correct and accurate in all material respects as of the date of this Agreement and to carry out its obligations hereunder as of the Expiration Time, in each case, as if made on and to consummate as of such date or time (other than any such representation or warranty made as of a specific earlier date, which shall not have been so true and correct in all material respects as of such earlier date); (C) any of the Contemplated Transactions. The execution representations and delivery by Parent warranties of the Company set forth in Section 3.2(a), 3.2(b), 3.2(c) and 3.2(d) of the Agreement shall not be true and accurate in all respects (except for de minimis inaccuracies) as of the date of this Agreement has and as of the Expiration Time, in each case, as if made on and as of such date or time (other than any such representation or warranty made as of a specific earlier date, which shall not have been duly authorized by so true and correct in all necessary action on respects (except for de minimis inaccuracies) as of such earlier date); and (D) any other representation or warranty of the part Company contained in the Agreement shall not be true and correct in all respects as of Parent and no other proceedings (corporate or otherwise) on the part date of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation and as of the Contemplated Transactions. This Agreement has Expiration Time, in each case, as if made on and as of such date or time (other than any such representation or warranty made as of a specific earlier date, which shall not have been duly executed so true and delivered by Parent accurate in all respects as of such earlier date), except, in the case of this clause (D) where the failure of such representations and constitutes (assuming the due authorizationwarranties to be true and correct, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law individually or in equitythe aggregate, has had, or would be reasonably be expected to have, a Company Material Adverse Effect (without giving effect to any qualifications as to materiality or “Company Material Adverse Effect” set forth in such representations and warranties); and;
(iii) the Company shall have failed to perform in all material respects its covenants and obligations required to be performed or complied with by it under the Agreement at or prior to the Acceptance Time;
(c) the Parent shall not have received a certificate, dated as of the date on which the Acceptance Time occurs, signed by an executive officer of the Company certifying as to the matters set forth in forth in clauses (b)(ii), (b)(iii) and (d) of this ▇▇▇▇▇ ▇;
(d) since the date of this Agreement, there shall have occurred any Company Material Adverse Effect; or
(e) the Agreement shall have been validly terminated in accordance with Article VIII of the Agreement (the “Termination Condition”). The executionforegoing conditions are for the sole benefit of Parent and Purchaser and, delivery subject to the terms and performance by Parent conditions of this Agreement and the consummation applicable rules and regulations of the Contemplated Transactions do SEC, may be waived by Parent and Purchaser in whole or in part at any time and from time to time in their sole discretion (other than the Minimum Condition and the Termination Condition, which may not and will notbe waived by Parent or Purchaser). The failure by Parent, with Purchaser or without notice or lapse any other Affiliate of Parent at any time or both, conflict with, contravene, result in to exercise any violation of or default under, or give rise to the foregoing rights shall not be deemed a right of termination, cancellation or acceleration waiver of any obligation undersuch right, or require a consent or the waiver under, (A) of any Law or Order applicable such right with respect to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is bound.
(c) Parent particular facts and circumstances shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder be deemed a waiver with respect to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) facts and circumstances and each such right shall be null deemed an ongoing right that may be asserted at any time and void; providedfrom time to time [Attached] FIRST: The name of the Corporation is Blue Apron Holdings, that, notwithstanding anything to Inc. (the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 Purchaser“Corporation”).
Appears in 1 contract
Parent Guarantee. Parent shall cause Asset Purchaser and Unit Purchaser to timely perform and fulfill their obligations under this Agreement and any Other Transaction Document and shall perform the obligations of Asset Purchaser and Unit Purchaser if either of them are unable to, or do not, promptly perform their respective obligations under this Agreement or any Other Transaction Document (a) and in any event do not perform their respective obligations within thirty days of being required to do so under this Agreement or any Other Transaction Document). Parent hereby irrevocably guarantees the full, complete and unconditionallytimely performance by Asset Purchaser and Unit Purchaser of each and every obligation of Asset Purchaser and Unit Purchaser under this Agreement and any Other Transaction Document, as primary obligor including the payment of all present and future amounts. If any default shall be made by Asset Purchaser and Unit Purchaser in the performance of any such obligations, then Parent shall perform or cause to be performed such obligation promptly following notice from the Seller specifying the default. The Seller may proceed to enforce its rights against Parent from time to time contemporaneously with or after any enforcement against Asset Purchaser and Unit Purchaser. This guarantee is absolute and unconditional and Parent waives any and all defenses specifically available only to a guarantor (other than performance in full by Asset Purchaser and Unit Purchaser) that would not be available to Parent if Parent was the purchasing entity under this Agreement instead of the Asset Purchaser and Unit Purchaser. Parent shall be entitled to assert any and all defenses to any obligation under this Agreement or any Other Transaction Document that would be available to Asset Purchaser and Unit Purchaser in any action commenced by Seller to enforce this Agreement or that would be available to Parent if Parent was the purchasing entity under this Agreement instead of the Asset Purchaser and Unit Purchaser. The guarantee set forth in this Section 12.14 is a guarantee of payment and not merely as surety, guarantees to of collection and shall be deemed a continuing and unlimited guarantee and shall remain in full force and effect until the satisfaction in full of all obligations of Asset Purchaser the full and timely payment by Seller when due of any obligation of Seller pursuant to Unit Purchaser under this Agreement and the Other Transaction Documents. Parent further agrees to pay all costs, fees and expenses incurred by the extent Seller in connection with enforcing or exercising its rights under, or arising from a breach by Parent of, the same provisions of this Section 12.14, provided the Seller is required successful in establishing its entitlement to such relief, or Parent’s breach, under this Section 12.14. The parties hereto, intending to be paid by Seller pursuant to the terms and subject to the conditions and limitations thereof.
(b) Parent hereby represents and warrants to Purchaser legally bound hereby, have duly executed this Agreement as of the date hereof and as of the Closing as follows:
(i) Parent is a corporation (A) duly incorporated, validly existing and in good standing under the Laws of the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conductedfirst above written. CARDIOME PHARMA CORP.
(ii) Parent has all requisite corporate power and authority to enter into this Agreement and to carry out its obligations hereunder and to consummate the Contemplated Transactions. The execution and delivery by Parent of this Agreement has been duly authorized by all necessary action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement and the consummation of the Contemplated Transactions do not and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is bound.
(c) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 Purchaser.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Cardiome Pharma Corp)
Parent Guarantee. (a) Parent hereby Guarantor absolutely, unconditionally and irrevocably and unconditionally, as primary obligor and not merely as surety, guarantees to Purchaser the full and timely prompt payment and performance of all covenants, obligations, liabilities and agreements of Buyer set forth in this Agreement. The foregoing obligation of Parent Guarantor constitutes a continuing guarantee of payment and performance, and is and shall be absolute and unconditional under any and all circumstances, including circumstances which might otherwise constitute a legal or equitable discharge of a guarantor. The guarantee set forth in this Section 10.16 is a primary guarantee of performance and not just of collection. Neither Seller nor the Company shall be required to attempt to collect any obligation guaranteed hereunder from Buyer prior to enforcing its rights against Parent Guarantor. Parent Guarantor hereby waives (to the fullest extent permitted by applicable law) notice of acceptance of this guaranty and notice of any liability to which it may apply, and waives promptness, diligence, presentment, demand or payment, protest, notice of dishonor or nonpayment, suit or taking of other action by Seller when due of or the Company against, any obligation of Seller pursuant to other notice to, any party liable thereon. The Parties entered into this Agreement to in reliance upon this Section 10.16. Parent Guarantor acknowledges that it will receive substantial direct and indirect benefits from the extent transactions contemplated hereby and that the same is required to be paid waivers and agreements by Seller pursuant to the terms and subject to the conditions and limitations thereofParent Guarantor set forth in this Section 10.16 are knowingly made in contemplation of such benefits.
(b) Parent hereby Guarantor represents and warrants to Purchaser as of Buyer and the date hereof and as of the Closing as followsCompany that:
(i) Parent is a corporation (A) duly incorporatedthe execution, validly existing delivery and in good standing under the Laws of the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into this Agreement and to carry out its obligations hereunder and to consummate the Contemplated Transactions. The execution and delivery by Parent performance of this Agreement has by Parent Guarantor have been duly authorized by all necessary action on the part and do not contravene any provision of Parent Guarantor’s charter or similar organizational documents;
(ii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Entity necessary for the due execution, delivery and performance of this Agreement by Parent Guarantor have been obtained or made and all conditions thereof have been duly complied with and no other proceedings action by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this Agreement;
(corporate or otherwiseiii) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the a legal, valid and binding obligations obligation of Parent Guarantor enforceable against Parent Guarantor in accordance with its terms, except as such (i) to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, insolvency, fraudulent transfer, moratorium, restructuring moratorium or other Laws laws affecting the enforcement of creditors’ rights and remedies generally and general principles (ii) that the availability of equity (irrespective equitable remedies, including specific performance, is subject to the discretion of whether enforcement is sought in a the court before which any proceeding at law or in equity)thereof may be brought; and
(iiiiv) The executionParent Guarantor has, delivery and performance will cause Buyer to have at the Closing, sufficient funds to consummate the transactions contemplated by Parent of this Agreement Agreement, including to pay all amounts required to be paid hereunder and the consummation fees and expenses of Buyer related to the Contemplated Transactions do not and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is boundtransactions contemplated hereby.
(c) Parent shall not assign Guarantor consents to the renewal, compromise, extension, acceleration or other changes in the time of payment of, or other changes in the obligations subject to, the guarantee set forth in Section 10.16 or any part thereof, in each case, to the extent Buyer has agreed to such change in writing in accordance with this Agreement.
(whether by operation of Law or otherwised) its rights, interests or obligations hereunder to Notwithstanding any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything provision to the contrary contained in herein, Parent Guarantor agrees to be bound by the terms and conditions of this Agreement, nothing shall restrict ARTICLE X as if Parent from the sale, transfer, exchange, assignment or other disposition by any means of Guarantor was a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 Purchaser“Party.”
Appears in 1 contract
Sources: Stock Purchase and Contribution Agreement (Fresenius Medical Care AG & Co. KGaA)
Parent Guarantee. (a) Parent hereby absolutely, unconditionally and irrevocably and unconditionally, as primary obligor and not merely as surety, guarantees to Purchaser the full and timely payment by Seller when due and performance of Buyer of all provisions of this Agreement, including Section 2(e) hereof, and each other agreement or instrument contemplated hereby, including the Buyer Notes. Parent hereby waives notice of the acceptance hereof, presentment, demand for payment, protest, notice of protest, or any and all notice of non-payment, non-performance or non-observance, or other proof, or notice or demand. Parent waives any right to require Sellers to proceed against Buyer or pursue any other remedy in Sellers' power whatsoever. The obligation of Seller pursuant to this Agreement Parent hereunder will not be discharged (to the extent permitted by law) by: (i) any extension or renewal with respect to any obligation hereunder or under any agreement or instrument contemplated hereby; (ii) any modification, or amendment to, this Agreement or any other agreement or instrument contemplated hereby; (iii) any conservatorship, receivership, insolvency, bankruptcy, reorganization, arrangement, composition, liquidation, dissolution or similar proceedings with respect to Buyer; or (iv) any other occurrence whatsoever, except payment and performance in full of all obligations covered by this guarantee, without regard to any rejection or termination thereof by reason of any proceeding in bankruptcy or reorganization or the same is required to be paid by Seller pursuant to the terms and subject to the conditions and limitations thereof.
(b) exercise of remedies thereunder. Parent hereby represents and warrants to Purchaser as of the date hereof and as of the Closing as follows:
(i) Sellers that Parent is a corporation (A) duly incorporatedorganized, validly existing and in good standing under the Laws laws of the State its jurisdiction of Delaware and (B) with all requisite corporate incorporation, that it has full power and authority to own execute, deliver and operate its properties perform this Agreement, and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into that this Agreement and to carry out its obligations hereunder and to consummate constitutes the Contemplated Transactions. The execution and delivery by Parent of this Agreement has been duly authorized by all necessary action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and legally binding obligations obligation of Parent Parent, enforceable against Parent in accordance with its termsterms and conditions, except as such enforceability enforcement may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective and by bankruptcy, insolvency, moratorium and similar laws affecting creditors' rights and remedies generally, regardless of whether enforcement is sought asserted in a proceeding in equity or at law or in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement and the consummation of the Contemplated Transactions do not and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is boundlaw.
(c) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 Purchaser.
Appears in 1 contract
Parent Guarantee. (a) Parent hereby irrevocably and unconditionallyunconditionally guarantees to the Buyer the payment and performance by Seller of its covenants, obligations, liabilities and agreements under this Agreement and the Transaction Documents, when and as the same shall become due and payable in accordance with the terms and conditions of this Agreement and the Transaction Documents, as primary obligor applicable (the “Guaranteed Obligations”). Parent acknowledges and agrees that such guaranty shall be a guaranty of payment and performance and not merely of collection, and is to remain in force until all obligations of Seller under this Agreement and the Transaction Documents shall have been performed or satisfied in full. The liability of Parent under this Agreement shall not be released or diminished by any variation of the terms of this Agreement or the Transaction Documents (whether or not agreed by Parent), any forbearance, neglect or delay in seeking performance of the obligations hereby imposed or any granting of time for such performance. If Seller shall default in the due and punctual payment or performance of the Guaranteed Obligations, Parent will upon demand by Buyer forthwith make full payment or performance of the Guaranteed Obligations to the appropriate Person pursuant to the terms of this Agreement and/or the Transaction Documents, as suretyapplicable. No setoff, guarantees to Purchaser the full and timely payment by Seller when due counterclaim, reduction or diminution of any obligation of Seller pursuant to this Agreement any kind or nature which Parent may have or assert against Buyer shall be available hereunder to the extent Parent against the same Seller. The Parent’s guarantee hereunder is required unconditional irrespective of any change in the corporate existence, structure or ownership of Seller, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller or its assets. Parent waives notice of the Sellers’ acceptance of and reliance on this guarantee. Parent further waives any right it may have to be paid by (a) require Buyer to proceed against or exhaust any right against Seller pursuant to the terms and subject to the conditions and limitations thereof.
or any other Person, or (b) require Buyer to pursue any other remedy within their power and Parent hereby agrees that all of its obligations under this guarantee are independent of the obligations of the Seller and that a separate action may be brought against Parent whether or not an action is commenced against Seller. Parent waives any defense arising by reason of any incapacity, disability, lack of authority or power, or other defense of Seller based on or arising out of the lack of validity or the unenforceability of this guarantee or any agreement or instrument relating thereto. Parent acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by this Agreement and the Transaction Documents and that the waivers set forth in this Section 6.18 are made knowingly in contemplation of such benefits. Parent represents and warrants to Purchaser Buyer as of the date hereof and as of the Closing as follows:
follows that (iI) Parent it is a corporation (A) duly incorporatedorganized, validly existing and in good standing under the Laws laws of the State of Delaware and Canada, (BII) with it has all requisite corporate necessary power and authority to own execute and operate deliver and perform its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into obligations under this Agreement and each of the Transaction Documents to carry out its obligations hereunder which it is a party and to consummate the Contemplated Transactions. The execution transactions contemplated hereby or thereby in accordance with the terms hereof or thereof, (III) the execution, delivery and delivery performance by Parent of its obligations pursuant to this Agreement has and each of the Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby or thereby have been duly and validly authorized by all necessary action on the part of Parent Parent, and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize the execution, delivery or performance of this Agreement or and the consummation applicable Transaction Documents and (IV) this Agreement and each of the Contemplated Transactions. This Agreement has Transaction Documents to which it is a party have been duly and validly executed and delivered by Parent and constitutes (and, assuming the due authorization, execution and delivery by the other parties hereto) the legalhereto and thereto, valid constitute a valid, legal and binding obligations agreement of Parent Parent, enforceable against Parent in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement and the consummation of the Contemplated Transactions do not and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is bound.
(c) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything subject to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 PurchaserGeneral Enforceability Exceptions.
Appears in 1 contract
Parent Guarantee. (a) Parent Pinnacle Corp. hereby unconditionally and irrevocably guarantees to Delta the due and unconditionallypunctual performance by Pinnacle of Pinnacle’s obligations, agreements and covenants arising under this Agreement and under each term and condition hereof (collectively, the “Obligations”). If Pinnacle shall fail or be unable to perform any such Obligation as primary obligor and when the same shall be required to be performed, then Pinnacle Corp., at its sole cost and expense, shall be obligated to promptly perform or cause to be promptly performed each such Obligation in accordance with the terms hereof and thereof. This guaranty is a guaranty of payment, performance and compliance and not merely as suretyof collectibility and is in no way conditioned or contingent upon any attempt to collect from or enforce performance or compliance by 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, guarantees Pinnacle Corp. shall immediately pay such amount to Purchaser the full and timely payment by Seller when due of any obligation of Seller person entitled thereto pursuant to this Agreement 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 the extent the same is required enforce any rights against such Party to be paid by Seller pursuant to the terms and subject to the conditions and limitations thereofcollect such amount.
(b) Parent hereby represents To the fullest extent permitted under applicable law, the obligations of Pinnacle Corp. and warrants Pinnacle hereunder shall be absolute and unconditional, shall be continuing and remain in full force and effect until final and irrevocable payment or performance, and shall not be released, discharged, affected or impaired in any respect by: (a) any amendment, modification, or cancellation of, or addition or supplement to Purchaser as 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 date hereof and as liabilities of a guarantor or surety, or which might otherwise limit recourse against Pinnacle Corp. or Pinnacle. If acceleration of the Closing as follows:
(i) Parent time for the performance or payment of any Obligation is a corporation (A) duly incorporatedstayed upon the insolvency, validly existing and in good standing bankruptcy or reorganization of Pinnacle, all Obligations that are subject to acceleration under the Laws of the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into this Agreement and to carry out its obligations hereunder and to consummate the Contemplated Transactions. The execution and delivery by Parent terms of this Agreement has been duly authorized shall nonetheless be performed or payable hereunder by all necessary action on the part of Parent and no other proceedings (corporate Pinnacle Corp. or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorizationPinnacle, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement and the consummation of the Contemplated Transactions do not and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is boundapplicable.
(c) Parent Each of Pinnacle Corp. and Pinnacle hereby specifically agrees that it shall not assign be necessary or required as a condition to enforcement of the obligations hereunder against it, that there be (whether and each of Pinnacle Corp. and Pinnacle, to the fullest extent permitted by operation applicable law, specifically waives) diligence, presentment, or protest of Law any kind whatsoever with respect to the respective guaranty by Pinnacle Corp. and Pinnacle or otherwisethe Obligations; such waiver includes, without limitation: (i) presentment for payment upon Pinnacle Corp. or Pinnacle or the making of any protest; (ii) any requirement to exhaust any remedies exercisable upon a default under this Agreement or to give any notice of 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 any judgment, order or decree of any court or otherwise based on the respective guaranty of Pinnacle Corp. and Pinnacle pursuant to 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, interests rights or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 PurchaserDelta.
Appears in 1 contract
Sources: Airline Services Agreement (Pinnacle Airlines Corp)
Parent Guarantee. (a) To induce Seller to enter into this Agreement, which Agreement is of material benefit to Parent, Parent hereby irrevocably and unconditionallyunconditionally guarantees to Seller, as a primary obligor and not merely as a surety, guarantees the prompt and full payment and performance by Buyer of all of Buyer's obligations and liabilities under this Agreement and the other Transaction Documents in accordance with the terms hereof and thereof ("Parent Guarantee"). Parent hereby agrees that, if Buyer fails to Purchaser pay and perform promptly any such obligation or liability in accordance with such terms, Parent will forthwith, upon demand, pay and perform the same. The unconditional obligation of Parent hereunder will not be affected, impaired or released by any termination or expiration hereof, or by Closing hereunder, or by any extension, waiver, amendment or other circumstance whatsoever that would affect, impair, release or constitute a defense to any obligation of a guarantor or surety (other than Buyer's full and timely payment by performance). In connection with and to induce Seller when due of any obligation of Seller pursuant and Stockholder to accept this Agreement to the extent the same is required to be paid by Seller pursuant to the terms Parent Guarantee and subject to the conditions and limitations thereof.
(b) enter into this Agreement, Parent hereby represents and warrants to Purchaser as of the date hereof Seller and as of the Closing Stockholder as follows:
(ia) Parent is a corporation (A) duly incorporatedorganized, validly existing and in good standing under the Laws laws of the State its state of Delaware incorporation and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into own, lease and operate its properties and assets and to conduct its business as currently conducted or proposed to be conducted.
(b) Parent has all requisite power and authority to execute and deliver and perform its obligations under this Agreement and to carry out its obligations hereunder and to consummate the Contemplated Transactionstransactions contemplated hereby. The execution execution, delivery and delivery by Parent performance of this Agreement has have been duly authorized by all necessary requisite corporate action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated TransactionsParent. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations obligation of Parent Parent, enforceable against Parent in accordance with its terms, except as such enforceability to the extent enforcement thereof may be limited by bankruptcy, insolvency, reorganization, insolvencymoratorium and other similar laws now or hereafter in effect relating to creditors rights generally, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and.
(iiic) The execution, delivery and performance by Parent of this Agreement by Parent and the consummation of the Contemplated Transactions transactions contemplated hereby (a) do not and will not, require Parent to file any notice with or obtain any consent, approval, authorization or exemption from any person or entity, including without notice limitation any government or lapse of time governmental agency or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver underinstrumentality, (Ab) will not violate any Law writ, injunction, decree, order, judgment, law, statute, ordinance, rule or Order applicable to Parent, regulation and (Bc) will not constitute a default or breach under any terms agreement or conditions of Parent’s Charter Documents, or (C) any material Contract commitment to which the Parent is a party or by which Parent it or any of its assets is properties may be bound.
(c) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 Purchaser.
Appears in 1 contract
Parent Guarantee. (a) Parent hereby Guarantor irrevocably and unconditionally, as primary obligor and not merely as surety, unconditionally guarantees to Purchaser each Holder of Debentures, and to the Trustee and its successors and assigns, the full and timely punctual payment of the principal of and interest on the Debentures, when and as the same shall become due and payable, whether at maturity or upon redemption or acceleration or otherwise, and all other monetary obligations of the Company under the Indenture and the Debentures, including obligations to the Trustee, in each case according to the terms of the Indenture and the Debentures. Parent ▇▇▇▇▇▇▇▇▇ agrees that in the case of default by Seller when due the Company in the payment of any obligation such principal, interest or other obligations, Parent Guarantor shall duly and punctually pay the same. Parent Guarantor hereby agrees that its obligations hereunder shall be absolute and unconditional irrespective of Seller any extension of the time for payment of the Debentures, any modification of the Debentures, any invalidity, irregularity or unenforceability of the Debentures or the Indenture, any failure to enforce the same or any waiver, modification, consent or indulgence granted to the Company with respect thereto by any Holder of Debentures or the Trustee, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. Parent Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of a merger or bankruptcy of the Company, any right to require a demand or proceeding first against the Company, protest or notice with respect to the Debentures or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Parent Guarantee will not be discharged as to any Debenture except by payment in full of the principal of, interest and other amounts payable with respect to such Debenture pursuant to this Agreement to such Debenture or the extent Indenture. For so long as any Debentures are outstanding, Parent Guarantor will guarantee the same is required to be paid by Seller delivery of the cash and shares of Parent Guarantor Common Stock issuable upon conversion of the Debentures pursuant to the terms of this Supplemental Indenture and subject the Debentures. This Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment on any Debenture, in whole or in part, is rescinded or must otherwise be restored to the conditions and limitations thereof.
(b) Company or Parent hereby represents and warrants to Purchaser as Guarantor upon the bankruptcy, liquidation or reorganization of the date hereof and as Company or otherwise. Parent Guarantor shall be subrogated to all rights of the Closing as follows:
(i) Parent is a corporation (A) duly incorporated, validly existing and Holders against the Company in good standing under the Laws respect of the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into this Agreement and to carry out its obligations hereunder and to consummate the Contemplated Transactions. The execution and delivery any amounts paid by Parent Guarantor pursuant to the provisions of this Agreement has been duly authorized by all necessary action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement Guarantee or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement and the consummation of the Contemplated Transactions do not and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is bound.
(c) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assetsIndenture; provided, however, that Parent Guarantor hereby waives any and all rights to which it may be entitled, by operation of law or otherwise, upon making any payment hereunder (i) to be subrogated to the rights of a Holder against the Company with respect to such payment or otherwise to be reimbursed, indemnified or exonerated by the Company in connection respect thereof or (ii) to receive any payment in the nature of contribution or for any other reason from any other obligor with any respect to such transactionpayment, in each case, until the principal of and interest on the Debentures shall have been paid in full. Any term or provision of this Supplemental Indenture to the contrary notwithstanding, the successor maximum aggregate amount of this Parent Guarantee shall not exceed the maximum amount that can be hereby guaranteed without rendering this Parent Guarantee voidable under applicable law relating to Parent fraudulent conveyances or purchaser fraudulent transfers or similar laws affecting the rights of substantially 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 Purchasercreditors generally.
Appears in 1 contract
Parent Guarantee. Parent Guarantor hereby (ai) Parent hereby agrees to take any and all actions necessary to cause Acquiror to perform all of their respective obligations under this Agreement in accordance with their respective terms (including with respect to the consummation of the Transaction, the payment of any and all amounts required pursuant to Article III and, if applicable, any amounts payable pursuant to Section 10.2) (collectively, the “Guaranteed Obligations”) and (ii) absolutely, unconditionally and irrevocably and unconditionallyguarantees, as primary obligor and not merely as surety, guarantees to Purchaser the full and timely payment complete performance by Seller when due Acquiror of the Guaranteed Obligations, and Parent Guarantor shall be liable for any breach by Acquiror of any obligation of Seller pursuant the Guaranteed Obligations. This is a guarantee of payment (not of collection) and performance. The Company shall not be obligated to file any claim relating to the Guaranteed Obligations in the event that Acquiror becomes subject to bankruptcy, reorganization or similar proceedings, and the failure of the Company to so file shall not affect Parent Guarantor’s obligations hereunder. In the event that any payment to the Company in respect of the Guaranteed Obligations is rescinded or must otherwise be returned for any reason whatsoever (other than in circumstances where Parent Guarantor is not liable to make such payment), Parent Guarantor shall remain liable hereunder with respect to the Guaranteed Obligations as if such payment had not been rescinded or returned. Parent Guarantor hereby waives promptness, diligence, presentment, demand of performance, demand of payment, filing of any claim, any right to require any proceeding first against Acquiror, protest, notice of any kind and all demands whatsoever and all suretyship defenses generally in connection with the performance of its covenants, agreements and obligations set forth in this Agreement Section 12.17. Notwithstanding the foregoing, to the extent Acquiror is relieved of all or any portion of the same is required to be paid Guaranteed Obligations by Seller pursuant to satisfaction thereof on the terms and subject to the conditions set forth in this Agreement or pursuant to any other agreement with the Seller, Parent Guarantor shall be similarly relieved of its corresponding obligations under this Section 12.17. Parent Guarantor acknowledges that it will receive substantial direct and limitations thereof.
(b) Parent hereby represents and warrants to Purchaser as of indirect benefits from the date hereof and as of the Closing as follows:
(i) Parent is a corporation (A) duly incorporated, validly existing and in good standing under the Laws of the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into transactions contemplated by this Agreement and to carry out its obligations hereunder and to consummate that the Contemplated Transactions. The execution and delivery by Parent of this Agreement has been duly authorized by all necessary action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent waivers set forth in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement and the consummation of the Contemplated Transactions do not and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is bound.
(c) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained 12.17 are knowingly made in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means contemplation of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 Purchaser.benefits. [Signature pages follow]
Appears in 1 contract
Parent Guarantee. (a) Parent Guarantor hereby unconditionally and irrevocably and unconditionally, as primary obligor and not merely as surety, guarantees to Purchaser the full and timely prompt performance by Buyer of Buyer’s covenants, agreements and obligations under this Agreement and the other Transaction Documents (such obligation, the “Guaranteed Obligations”). This is a guarantee of performance and payment by Seller when due and not only of collection. Guarantor waives promptness, diligence, presentment, demand of performance, demand of payment, filing of any obligation claim, any right to require any proceeding first against Buyer, protest, notice of any kind (including notices of acceptance hereof and of defaults hereunder) and all demands whatsoever and all suretyship defenses generally in connection with the performance of its covenants, agreements and obligations set forth in this Agreement. Without limiting the foregoing, Guarantor shall be responsible for the payment of all expenses and charges (including without limitation all court costs and reasonable attorneys’ fees) paid or incurred by any Seller Related Party in realizing upon any of the obligations guaranteed pursuant to this Agreement to the extent the same is required to be paid by Seller pursuant to the terms and subject to the conditions and limitations thereofSection 8.21(a).
(b) Parent hereby Guarantor represents and warrants to Purchaser as of the date hereof and as of the Closing as follows:
Buyer that (i1) Parent Guarantor is a corporation (A) duly incorporatedorganized, validly existing and in good standing under the Laws of Delaware; (2) Guarantor has the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into this Agreement and to carry out perform its obligations hereunder hereunder; (3) the execution, delivery and to consummate performance of this Agreement by Guarantor and the Contemplated Transactions. The execution consummation of the transactions contemplated hereby have been duly and delivery validly authorized by Parent all requisite action on the part of Guarantor; (4) this Agreement has been duly authorized by all necessary action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly validly executed and delivered by Parent Guarantor; and constitutes (assuming 5) the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement does not, and the consummation of the Contemplated Transactions do not transactions contemplated herein and the compliance with the provisions herein will not, conflict with or without notice violate any applicable Law or lapse of time agreement binding upon Guarantor, nor require authorization, consent or bothapproval of, conflict or filing with, contraveneany Governmental Authority, result except in each case as would not impact Guarantor’s ability to perform or comply with its obligations hereunder in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is boundrespect.
(c) Parent shall not assign (whether To the maximum extent permitted by operation Law, no modification, limitation or discharge of Law or otherwise) its rights, interests or obligations hereunder to liability of any other Person without guarantor (if any) of the prior written consent Guaranteed Obligations or of Purchaser. Any attempted assignment Buyer under this Agreement or any related agreement, instrument or document arising out of, or by virtue of, any bankruptcy, arrangement, reorganization or similar proceedings for release of debtors under federal or state law shall affect the liability of Guarantor hereunder in violation any manner whatsoever, and Guarantor hereby waives all rights and benefits which might otherwise accrue to it by reason of any such proceeding.
(d) For avoidance of doubt, the provisions of Sections 8.02 through 8.13 and Section 8.19 are incorporated into this Section 9.17(c) 8.21 and any references to “Party” in such Sections shall be null and void; provided, that, notwithstanding anything deemed to include the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 Purchaser.Guarantor. * * * * *
Appears in 1 contract
Sources: Asset Purchase Agreement
Parent Guarantee. (a) Parent hereby irrevocably and unconditionally, as primary obligor and not merely as surety, guarantees to Purchaser Seller the full and timely performance of all of the obligations of Buyer under this Agreement, including the payment by Seller when due obligations of any obligation of Seller Buyer pursuant to Section 2.2 (collectively, the “Guaranteed Obligations”). This is a guarantee of performance, and not merely of collection, and Parent acknowledges and agrees that this Agreement 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. Parent hereby waives, for the benefit of Seller, (a) any right to the extent the same is required require Seller, as a condition of performance by Parent, to be paid by Seller pursuant to the terms proceed in any action against Buyer or pursue any other remedies whatsoever and subject to the conditions and limitations thereof.
(b) to the fullest extent permitted by applicable Law, any defenses or benefits that may be derived from or afforded by any Law that limit the liability of or exonerate guarantors or sureties, other than defense of performance in full of the Guaranteed Obligations. Parent will reimburse Seller for all reasonable and documented out-of-pocket costs and expenses (including court and arbitration costs and reasonable attorneys’ fees) incurred by Seller in connection with the enforcement of their rights under this Section 9.9. If all or any part of any payment to or for the benefit of Seller in respect of a Guaranteed Obligation is invalidated, declared to be fraudulent or preferential or set aside and, in each such case, required for any reason to be repaid or paid to a trustee, receiver or other third Person, the Guaranteed Obligations that otherwise would have been satisfied by that payment or partial payment will be revived and will continue in full force and effect as if that payment had not been made. Parent understands and acknowledges that Seller is relying on this guarantee and the representations and warranties set forth in the immediately following sentence in entering into this Agreement. Parent hereby represents and warrants to Purchaser as of the date hereof and as of the Closing as follows:
that (i) Parent is a corporation (A) duly incorporated, validly existing and in good standing under the Laws of the State of Delaware and (B) with all requisite corporate it has full power and authority to own execute and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into deliver this Agreement and (solely for purposes of this Section 9.9), to carry out its obligations hereunder and make any payments required to consummate be made hereby, (ii) the Contemplated Transactions. The execution and delivery by Parent of this Agreement has (solely for purposes of this Section 9.9), and the performance by Parent of its obligations hereunder, have been duly authorized by all necessary requisite corporate action on the part of Parent and no other proceedings (corporate or otherwiseiii) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent (solely for purposes of this Section 9.9), and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the a legal, valid and binding obligations obligation of Parent Parent, enforceable against Parent in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights . The foregoing representations and remedies generally and general principles warranties of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement and the consummation of the Contemplated Transactions do not and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is bound.
(c) Parent shall survive in perpetuity and shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 Purchaserterminate.
Appears in 1 contract
Parent Guarantee. (a) Parent hereby irrevocably and unconditionally, as primary obligor and not merely as surety, unconditionally guarantees to Purchaser Buyer the full and timely payment by Seller of any amount due and payable from Seller to Buyer in accordance with the terms of this Agreement (and subject to any limitations on Seller’s obligations set forth herein), including any and all payments required under Article VIII (collectively, the “Seller Payment Obligations”). Parent further unconditionally guarantees to Buyer that if Seller fails to perform any Seller Payment Obligation when due of any obligation of Seller pursuant to this Agreement to the extent the same is required and upon written demand, then Parent shall, upon written demand from Buyer, perform, or cause to be paid performed, all such Seller Payment Obligations. All payments made by Seller Parent pursuant to the terms 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 subject to the conditions 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 limitations thereof.
(b) Parent hereby represents waives all special suretyship defenses and warrants to Purchaser as of the date hereof and as of the Closing as follows:
(i) Parent is a corporation (A) duly incorporated, validly existing and in good standing under the Laws of the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into this Agreement and to carry out its obligations hereunder and to consummate the Contemplated Transactionsnotice requirements. The execution obligations, covenants and delivery by Parent of this Agreement has been duly authorized by all necessary action on the part 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 no other proceedings (corporate or otherwise) on the part assigns of Parent (including but not limited to any entity or its board group of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement and the consummation of the Contemplated Transactions do not and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract entities to which Parent is a party sells, assigns or by which Parent or any of its assets is bound.
(c) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or transfers all or substantially all of its assetsor its subsidiaries’ assets in one or more related transactions); provided, however, in connection with any such transaction, the successor to that no assignment shall release Parent or purchaser of substantially all of Parent’s assets shall expressly assume in writing Parent’s from its obligations hereunder, a copy of which written assumption agreement shall be provided to Purchaser.
Appears in 1 contract
Parent Guarantee. (a) Parent Guarantor hereby irrevocably and unconditionallyguarantees the full, as primary obligor and not merely as surety, guarantees to Purchaser the full complete and timely payment by Seller Buyer of its obligations under Article II when and as due under this Agreement. If any default shall be made by Buyer in the performance of any such payment obligations, then Parent Guarantor shall perform or cause to be performed such payment obligation upon written notice from Seller specifying such default. Prior to proceeding against Parent Guarantor under this Section 13.15, Seller shall first demand payment from Buyer in accordance with the applicable provisions of this Agreement; provided, however, that Seller pursuant shall not be required to initiate legal proceedings against Buyer prior to proceeding against Parent Guarantor under this Agreement Section 13.15. The guarantee set forth in this Section 13.15 shall survive the Closing and shall expire and be of no further force or effect at the close of Business on the third Business Day after: (i) the Determination Date, if the Buyer has no obligation to pay an amount to the extent Seller under Section 2.3(e), or (ii) if the same is required Buyer has an obligation to be paid by Seller pursuant pay an amount to the terms and subject to Seller or the conditions and limitations thereofEscrow Agent under Section 2.3(e), the date on which such amount(s) have been paid.
(b) The Parent hereby Guarantor represents and warrants to Purchaser as of the date hereof and as of the Closing as follows:
(i) Parent Guarantor is a U.S. operating entity and issues debt publicly in the United States.
(ii) Parent Guarantor is a corporation (A) duly incorporatedorganized, validly existing and in good standing under the Laws laws of the State jurisdiction of Delaware and its incorporation.
(Biii) with all requisite Parent Guarantor has full corporate power and authority to own execute and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into deliver this Agreement and to carry out perform its obligations hereunder and to consummate the Contemplated Transactions. obligation hereunder.
(iv) The execution and delivery by Parent Guarantor of this Agreement has and the performance by Parent Guarantor of its obligations hereunder have been duly authorized approved by all necessary requisite corporate action on the part of Parent and no other proceedings Guarantor.
(corporate or otherwisev) on Except to the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent in accordance with its terms, except as such extent enforceability may be limited by bankruptcy, insolvency, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or moratorium and other Laws similar laws from time to time in effect affecting the enforceability of creditors’ rights and remedies generally and except to the extent enforcement of remedies may be limited by general equitable principles this Agreement constitutes the valid and legally binding obligation of equity (irrespective of whether enforcement is sought Parent Guarantor, enforceable against Parent Guarantor in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent accordance with the terms of this Agreement. The Parties have executed and delivered this Share Purchase Agreement and the consummation as of the Contemplated Transactions do not and will not, date first written above. ATD ACQUISITION CO. V INC. By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: 1278104 ALBERTA INC. By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: President TRIWEST TRADING (CANADA) LTD. By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: Title: 1279156 ALBERTA INC. By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: President Address: FAB 5 INVESTMENTS LTD. By: /s/ ▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇ Title: President Address: 1274942 ALBERTA LTD. By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Director Address: Solely with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise respect to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is bound.
(c) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 Purchaser.13.15 hereof: PARENT GUARANTOR By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: Title:
Appears in 1 contract
Sources: Share Purchase Agreement (American Tire Distributors Holdings, Inc.)
Parent Guarantee. Centennial Cellular Operating Co. LLC, a Delaware limited liability company (a) “Parent hereby Guarantor”), irrevocably and unconditionallyunconditionally guarantees (the “Parent Guarantee”) to Buyer and its successors and assigns, as primary obligor the prompt and not merely as surety, guarantees to Purchaser the full and timely complete payment by Seller when due of any obligation all financial obligations of Seller pursuant to Buyer under this Agreement (“Seller Obligations”), including any indemnification payments that may become due to the extent the same is required to Buyer under this Agreement. If any Seller Obligation shall not be paid by when due, Parent Guarantor shall become liable to Buyer for such obligation and Buyer may recover from Parent Guarantor the full amount of any such Seller pursuant to Obligation payable on demand. No provision hereof shall in any manner restrict the terms and subject to the conditions and limitations thereof.
(b) Parent hereby represents and warrants to Purchaser as of the date hereof and as of the Closing as follows:
(i) Parent is a corporation (A) duly incorporated, validly existing and in good standing under the Laws of the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into this Agreement and to carry out its obligations hereunder and to consummate the Contemplated Transactions. The execution and delivery by Parent of this Agreement has been duly authorized by all necessary action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law Seller or in equity); and
(iii) The execution, delivery and performance by Parent of Buyer under this Agreement and the consummation other documents executed in connection therewith. Parent Guarantor shall be liable to Buyer under this Agreement only to the extent that Seller is liable hereunder. Except if the payment of the Contemplated Transactions do Seller Obligations in question is still under a dispute by Seller, Parent Guarantor shall not and will nothave the right to assert as a defense to its obligations under this Guarantee any defense of any kind or nature that Seller could assert with respect to the payment of the Seller Obligations, with whether or without notice or lapse of time or both, conflict with, contravene, result not Seller has in fact asserted any violation of or default undersuch defenses. This Parent Guaranty shall continue to be effective, or give rise to a right of terminationbe reinstated, cancellation as the case may be, if at any time payment, or acceleration any part thereof, of any obligation underof the Seller Obligations is rescinded or must otherwise be restored or returned by Buyer upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Seller, or require upon or as a consent result of the appointment of a receiver, intervener or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documentsconservator of, or (C) any material Contract to which Parent is a party trustee or by which Parent similar officer for, Seller or any substantial part of its assets is bound.
(c) Parent shall not assign (whether by operation of Law property, or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any as though such transaction, the successor to Parent or purchaser of substantially 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 Purchaserpayments had not been made.
Appears in 1 contract
Sources: Stock Purchase Agreement (Centennial Communications Corp /De)
Parent Guarantee. (a) Parent hereby irrevocably guarantees each and unconditionally, as primary obligor every covenant and not merely as surety, guarantees to Purchaser obligation of Seller and the full and timely payment performance of Seller’s obligations under the provisions of this Agreement. This is a guaranty of performance, and not of collection, and Parent acknowledges and agrees that this guaranty is full and unconditional, and no release or extinguishments of Seller’s liabilities, whether by decree in any bankruptcy proceeding or otherwise, will affect the continuing validity and enforceability of this guaranty. Parent hereby waives, for the benefit of each Purchaser Indemnified Person, (i) any right to require any Purchaser Indemnified Person as a condition of performance of Parent to proceed against Seller when due or pursue any other remedies whatsoever and (ii) to the fullest extent permitted by applicable Law, any defenses or benefits that may be derived from or afforded by law that limit the liability of any obligation of Seller pursuant to this Agreement or exonerate guarantors or sureties, except to the extent the same that any such defense is required available to be paid by Seller pursuant to the terms and subject to the conditions and limitations thereofSeller. Parent understands that Purchaser is relying on this guaranty in entering into this Agreement.
(b) Parent hereby represents and warrants to Purchaser as of the date hereof and as of the Closing as follows:
that: (i) Parent is a corporation (A) duly incorporatedorganized, validly existing and in good standing under the Laws laws of the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
Delaware, (ii) Parent has all requisite corporate full power and authority to enter into execute and deliver this Agreement and to carry out perform its obligations hereunder under this guaranty and to consummate Sections 2.1 and 8.3, (iii) the Contemplated Transactions. The execution and delivery by Parent of this Agreement has and the performance of its obligations under this guaranty and Sections 2.1 and 8.3 have been duly authorized by all necessary requisite corporate action on the part of Parent and no other proceedings (corporate or otherwiseiv) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent Parent, and this guaranty and Sections 2.1 and 8.3 constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent Parent, enforceable against Parent in accordance with its terms, except as such enforceability may be limited affected by bankruptcy, reorganization, insolvency, fraudulent transferconveyance, moratoriumreorganization, restructuring moratorium and other similar Laws relating to or other Laws affecting creditors’ rights and remedies generally and generally, general equitable principles of equity (irrespective of whether enforcement is sought considered in a proceeding in equity or at law or in equity); and
(iiilaw) The execution, delivery and performance by Parent of this Agreement and the consummation implied covenant of the Contemplated Transactions do not good faith and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is boundfair dealing.
(c) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 Purchaser.
Appears in 1 contract
Parent Guarantee. (a) The Parent hereby irrevocably Guarantor will fully and unconditionally, as primary obligor unconditionally guarantee on an unsecured and not merely as surety, guarantees to Purchaser junior subordinated basis the full and timely prompt payment of principal of, premium, if any, and interest on the notes, when and as the same become due and payable (other than during an Optional Deferral Period), whether at stated maturity, upon redemption, by Seller when due declaration of any obligation of Seller pursuant to this Agreement acceleration or otherwise. The Parent Guarantor’s obligations under the Guarantee will, to the extent provided in the indenture, be subordinated to the prior payment in full of all present and future senior indebtedness of the Parent Guarantor, as defined below. The Parent Guarantor’s obligations under the Guarantee will rank senior in right of payment to all of its present and future equity securities, including its common units. The holders of the Parent Guarantor’s senior indebtedness will be entitled to receive payment in full of such senior indebtedness before holders of the notes receive from the Parent Guarantor any payment of principal, premium or interest with respect to the notes: • upon any payment or distribution of the Parent Guarantor’s assets to its creditors in connection with the Parent Guarantor’s total or partial liquidation or dissolution; or • in a bankruptcy, receivership or similar proceeding relating to the Parent Guarantor or its property. In these circumstances, until the Parent Guarantor’s senior indebtedness is paid in full, any distribution to which holders of notes would otherwise be entitled under the Guarantee will be made to the holders of its senior indebtedness, except that such holders may receive units representing limited partner interests and any debt securities that are subordinated to senior indebtedness to at least the same is required extent as the Guarantee. If the Parent Guarantor does not pay any principal, premium or interest with respect to be paid by Seller pursuant to the terms and subject to the conditions and limitations thereof.
its senior indebtedness within any applicable grace period (b) Parent hereby represents and warrants to Purchaser as of the date hereof and as of the Closing as follows:
(i) Parent is a corporation (A) duly incorporatedincluding at maturity), validly existing and in good standing under the Laws of the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry or any other default on its business as presently conducted.
(ii) Parent has all requisite corporate power senior indebtedness occurs and authority to enter into this Agreement and to carry out its obligations hereunder and to consummate the Contemplated Transactions. The execution and delivery by Parent maturity of this Agreement has been duly authorized by all necessary action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent such senior indebtedness is accelerated in accordance with its terms, except the Parent Guarantor may not: • make any payments under the Guarantee of principal, premium, if any, or interest with respect to the notes; • make any deposit under the Guarantee for the purpose of defeasance of the notes; or • advance monies under the Guarantee to repurchase, redeem or otherwise retire any of the notes, unless, in either case, • the default has been cured or waived and the declaration of acceleration has been rescinded; • the senior indebtedness has been paid in full; or • the Parent Guarantor and the trustee receive written notice approving the payment from the representatives of each issue of designated senior indebtedness (as defined below). During the continuance of any senior indebtedness default, other than a default described in the immediately preceding paragraph, that may cause the maturity of any designated senior indebtedness to be accelerated immediately without further notice, other than any notice required to effect such enforceability acceleration, or the expiration of any applicable grace periods, the Parent Guarantor may not make payments under the Guarantee in respect of the notes for a period called the “Payment Blockage Period.” A Payment Blockage Period will commence on the receipt by the Parent Guarantor and the trustee of written notice of the default, called a “Blockage Notice,” from the representative of any designated senior indebtedness specifying an election to effect a Payment Blockage Period, and will expire 179 days thereafter. Generally, “designated senior indebtedness” will include any issue of senior indebtedness of at least $100 million. The Payment Blockage Period may be limited terminated before its expiration: • by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring written notice from the person or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought persons who gave the Blockage Notice; • by repayment in a proceeding at law or full in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement and the consummation cash of the Contemplated Transactions do senior indebtedness with respect to which the Blockage Notice was given; or • if the default giving rise to the Payment Blockage Period is no longer continuing. Unless the holders of the designated senior indebtedness shall have accelerated the maturity of the senior indebtedness, the Parent Guarantor may resume making payments under the Guarantee in respect of the notes after the expiration of the Payment Blockage Period. Generally, not and will not, with or without notice or lapse of time or both, conflict with, contravene, result more than one Blockage Notice may be given in any violation period of 360 consecutive days. The total number of days during which any one or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is bound.
(c) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment more Payment Blockage Periods are in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; providedeffect, however, may not exceed an aggregate of 179 days during any period of 360 consecutive days. After all senior indebtedness is paid in connection with any such transactionfull and until the notes are paid in full, holders of the successor notes will be subrogated to the rights of holders of senior indebtedness to receive distributions applicable to senior indebtedness. By reason of the subordination, in the event of the Parent or purchaser Guarantor’s insolvency, its creditors who are holders of substantially all senior indebtedness, as well as certain of Parent’s assets shall expressly assume in writing Parent’s obligations hereunderits general creditors, a copy may recover more, ratably, than the holders of which written assumption agreement shall be provided to Purchaserthe notes will recover under the Guarantee.
Appears in 1 contract
Sources: Underwriting Agreement (Enterprise Products Partners L P)
Parent Guarantee. (a) The Parent Guarantor hereby irrevocably and absolutely, unconditionally, as primary obligor and not merely as surety, irrevocably guarantees to Purchaser the full Company, Stockholder Representative and timely payment by Seller when Company Securityholders (and the Company Securityholders are express third party beneficiaries hereof), the due and punctual payment, observance, performance, and discharge of any obligation each of Seller pursuant to the obligations of Buyer and Merger Sub set forth in this Agreement and any Ancillary Document. The Parent Guarantor hereby waives any and all defenses it may have, including under Law, other than defenses available to the extent the same is required to be paid by Seller pursuant to the terms Buyer and subject to the conditions and limitations thereof.
(b) Merger Sub under this Agreement or any applicable Ancillary Document. Parent Guarantor hereby represents and warrants to Purchaser as of the date hereof Company, the Stockholder Representative and as of the Closing as follows:
Company Securityholders that (ia) Parent is a corporation (A) duly incorporated, validly existing and in good standing under Guarantor has the Laws of the State of Delaware and (B) with all requisite corporate power and authority to own execute and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into deliver this Agreement and to carry out perform its obligations hereunder and to consummate the Contemplated Transactions. The execution and delivery by Parent of transactions contemplated hereby, (b) this Agreement has been duly authorized by all necessary action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by the Parent and constitutes (Guarantor and, assuming the due authorization, execution and delivery by Company and the other parties hereto) the Stockholder Representative, constitutes a legal, valid and binding obligations agreement of the Parent Guarantor, enforceable against the Parent Guarantor in accordance with its terms, except as such enforceability to the extent that enforcement may be limited affected by Laws relating to bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting insolvency and creditors’ rights and remedies generally by the availability of injunctive relief, specific performance and general principles other equitable remedies, (c) there is no Proceeding pending or, to the knowledge of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The executionthe Parent Guarantor, delivery and performance by threatened against the Parent Guarantor that questions the validity of this Agreement and or that would impair the consummation ability of the Contemplated Transactions do Parent Guarantor to consummate the transactions contemplated by this Agreement or to perform its obligations hereunder, and (d) the Parent Guarantor has not and will not, dealt with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise Person who is entitled to a right of terminationbroker’s commission, cancellation finder’s fee, investment banker’s fee or acceleration of any obligation undersimilar payment for arranging the transactions contemplated hereby or introducing the parties to each other. Notwithstanding anything herein to the contrary, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is bound.
(c) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment guarantee set forth in violation of this Section 9.17(c) 11.19 shall terminate, and Parent Guarantor shall be null and void; provided, that, notwithstanding anything to the contrary contained in fully released from all obligations under this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially upon Buyer and Merger Sub fulfilling all of its assets; providedtheir payment obligations under this Agreement, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 Purchaserincluding under Section 2.12.
Appears in 1 contract
Parent Guarantee. (a) Parent hereby irrevocably and unconditionally, as primary obligor absolutely and not merely as suretyirrevocably guarantees, guarantees undertakes and promises to Purchaser the full cause Seller to fully and timely payment by Seller when due promptly pay, perform and observe all of any obligation Seller’s obligations under, with respect to, in connection with or otherwise arising out of Seller pursuant or relating to this Agreement (collectively, the “Obligations”), whether according to the extent the same is required to be paid by Seller present terms hereof, or pursuant to any change in the terms and subject to the conditions and limitations thereof.
(b) Parent hereby represents and warrants to Purchaser as of the date hereof and as of the Closing as follows:
(i) Parent is a corporation (A) duly incorporated, validly existing and in good standing under the Laws of the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into this Agreement and to carry out its obligations hereunder and to consummate the Contemplated Transactions. The execution and delivery by Parent of this Agreement has been duly authorized by all necessary action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent in accordance with its terms, except as such enforceability may be limited by bankruptcycovenants and conditions hereof at any time hereafter made or granted, reorganizationincluding pursuant to any amendments, insolvencywaivers, fraudulent transfer, moratorium, restructuring extensions or other Laws renewals affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement and the consummation transactions contemplated hereby. In the event that Seller fails in any manner whatsoever to pay, perform or observe any of the Contemplated Transactions do not Obligations, Parent will itself duly and will notpromptly pay, with perform or without notice or lapse of time or bothobserve, conflict withas the case may be, contravene, result in any violation of or default undersuch Obligations, or give rise cause the same to be duly and promptly paid, performed or observed, in each case as if Parent were itself the Seller with respect to such Obligations. In regards to monetary obligations, Parent agrees that its guarantee under this Section 11.12 constitutes a guarantee of payment when due and not of collection. Notwithstanding anything in this Section 11.12 to the contrary, Buyer may proceed to enforce this Section 11.12 against Parent without first pursuing or exhausting any right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent remedy that Buyer or any of its assets is bound.
successors or assigns may have against Seller, any of its successors or assigns (cor any Affiliates thereof) or any other Person. The obligations of Parent under this Section 11.12 shall not assign be valid and enforceable and, to the fullest extent permitted by Applicable Law, Parent waives (whether i) any direct or indirect defense based on a lack of power or authority by operation Seller to execute, deliver or perform this Agreement and (ii) any other legal or equitable defense available to a guarantor under Applicable Law. Any payment by Parent pursuant to this Section 11.12 will, to the extent of Law or otherwise) its rights, interests or obligations hereunder actual receipt by Buyer of such payment as it relates to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in Obligation under this Agreement, nothing discharge such Obligation of Seller to Buyer under this Agreement. Parent agrees that its guarantee under this Section 11.12 shall restrict continue to be effective or be reinstated, as the case may be, if at any time full or partial payment of any Obligation is rescinded or must otherwise be restored upon the insolvency, bankruptcy or reorganization of Seller or otherwise. Parent from agrees that it shall have no right of subrogation, contribution or indemnity with respect to payments made under this Section 11.12 until such time as all Obligations have been paid in full. Notwithstanding the saleprovisions of Section 11.1, transferParent agrees to pay on demand all reasonable, exchangedocumented out-of-pocket fees and expenses of Buyer (including the reasonable, assignment or other disposition by any means of a majority documented fees and expenses of its equity securities, counsel) for the protection or all or substantially all enforcement of its assets; provided, however, in connection with any such transaction, the successor to rights of Buyer against Parent or purchaser of substantially 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 Purchaserunder this Section 11.12.
Appears in 1 contract
Parent Guarantee. (a) Effective from and after the Initial Effective Time, Parent hereby irrevocably and unconditionally, as primary obligor and not merely as surety, guarantees to Purchaser Buyer the full and timely payment by Seller when due performance of any obligation the covenants, agreements, liabilities and obligations of Seller pursuant to under this Agreement and agrees to cause Seller to fully and timely perform the extent same. The guarantee set forth in this Section 13.18 (the same “Parent Guarantee”) is required a guarantee of performance and payment and Parent acknowledges and agrees that the Parent 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 the Parent Guarantee. Parent hereby waives, for the benefit of Buyer, any right to be paid require Buyer, as a condition of performance by Parent or Seller, to bring any claim against Seller pursuant to or pursue any other remedies whatsoever. Parent understands and acknowledges that Buyer is relying on the terms and subject to the conditions and limitations thereofParent Guarantee in entering into this Agreement.
(b) Parent hereby represents and warrants to Purchaser as of the date hereof and as of the Closing as followsthat:
(i) Parent is a corporation (A) duly incorporated, organized and validly existing and in good standing under the Laws of the State jurisdiction of Delaware its formation and (B) with has all requisite corporate power power, authority and authority capacity to own execute, deliver and operate its properties and to carry on its business as presently conducted.perform the Parent Guarantee;
(ii) the execution, delivery and performance of the Parent has all requisite corporate power and authority to enter into this Agreement and to carry out its obligations hereunder and to consummate the Contemplated Transactions. The execution and delivery by Parent of this Agreement has Guarantee have been duly authorized and approved by all necessary action and do not contravene any provision of Parent’s certificate of incorporation, bylaws or other governing documents or any Law, regulation, rule, decree, order, judgment or contractual restriction binding on Parent or its assets or result in any breach, termination or violation of, or constitute a default (with or without due notice or lapse of time or both) under, or give to any Person any right;
(iii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Government Authority or other Person necessary for the part due execution, delivery and performance of the Parent Guarantee by Parent have been obtained or made and all conditions thereof have been duly complied with, and no other proceedings (corporate action by, and no notice to or otherwise) on filing with, any Government Authority or regulatory body or other Person is required in connection with the part of Parent execution, delivery or its board of directors or stockholders are necessary to authorize this Agreement or the consummation performance of the Contemplated Transactions. This Agreement Parent Guarantee;
(iv) by Parent’s execution of this Agreement, the Parent Guarantee has been duly and validly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the a legal, valid and binding obligations obligation of Parent enforceable against Parent in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement and the consummation of the Contemplated Transactions do not and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is bound.
(cv) Parent shall not assign (whether by operation of Law has the financial capacity to pay and perform its obligations under the Parent Guarantee, and all funds or otherwise) assets necessary for Parent to fulfill its rights, interests or obligations hereunder to any other Person without under the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) Parent Guarantee shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor available to Parent or purchaser of substantially all of Parent’s assets for so long as the Parent Guarantee shall expressly assume remain in writing Parent’s obligations hereunder, a copy of which written assumption agreement shall be provided to Purchasereffect.
Appears in 1 contract
Parent Guarantee. (a) Parent hereby Guarantor absolutely, unconditionally and irrevocably and unconditionally, as primary obligor and not merely as surety, guarantees to Purchaser the full and timely prompt payment and performance of all covenants, obligations, liabilities and agreements of Buyer set forth in this Agreement. The foregoing obligation of Parent Guarantor constitutes a continuing guarantee of payment and performance, and is and shall be absolute and unconditional under any and all circumstances, including circumstances which might otherwise constitute a legal or equitable discharge of a guarantor. The guarantee set forth in this Section 10.16 is a primary guarantee of performance and not just of collection. Neither Seller nor the Company shall be required to attempt to collect any obligation guaranteed hereunder from Buyer prior to enforcing its rights against Parent Guarantor. Parent Guarantor hereby waives (to the fullest extent permitted by applicable law) notice of acceptance of this guaranty and notice of any liability to which it may apply, and waives promptness, diligence, presentment, demand or payment, protest, notice of dishonor or nonpayment, suit or taking of other action by Seller when due of or the Company against, any obligation of Seller pursuant to other notice to, any party liable thereon. The Parties entered into this Agreement to in reliance upon this Section 10.16. Parent Guarantor acknowledges that it will receive substantial direct and indirect benefits from the extent transactions contemplated hereby and that the same is required to be paid waivers and agreements by Seller pursuant to the terms and subject to the conditions and limitations thereofParent Guarantor set forth in this Section 10.16 are knowingly made in contemplation of such benefits.
(b) Parent hereby Guarantor represents and warrants to Purchaser as of Buyer and the date hereof and as of the Closing as followsCompany that:
(i) Parent is a corporation (A) duly incorporatedthe execution, validly existing delivery and in good standing under the Laws of the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into this Agreement and to carry out its obligations hereunder and to consummate the Contemplated Transactions. The execution and delivery by Parent performance of this Agreement has by Parent Guarantor have been duly authorized by all necessary action on the part and do not contravene any provision of Parent Guarantor’s charter or similar organizational documents;
(ii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Entity necessary for the due execution, delivery and performance of this Agreement by Parent Guarantor have been obtained or made and all conditions thereof have been duly complied with and no other proceedings action by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this Agreement;
(corporate or otherwiseiii) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the a legal, valid and binding obligations obligation of Parent Guarantor enforceable against Parent Guarantor in accordance with its terms, except as such (i) to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, insolvency, fraudulent transfer, moratorium, restructuring moratorium or other Laws laws affecting the enforcement of creditors’ rights and remedies generally and general principles (ii) that the availability of equity (irrespective equitable remedies, including specific performance, is subject to the discretion of whether enforcement is sought in a the court before which any proceeding at law or in equity)thereof may be brought; and
(iiiiv) The executionParent Guarantor has, delivery and performance will cause Buyer to have at the Closing, sufficient funds to consummate the transactions contemplated by Parent of this Agreement Agreement, including to pay all amounts required to be paid hereunder and the consummation fees and expenses of Buyer related to the Contemplated Transactions do not and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is boundtransactions contemplated hereby.
(c) Parent shall not assign Guarantor consents to the renewal, compromise, extension, acceleration or other changes in the time of payment of, or other changes in the obligations subject to, the guarantee set forth in Section 10.16 or any part thereof, in each case, to the extent Buyer has agreed to such change in writing in accordance with this Agreement.
(whether by operation of Law or otherwised) its rights, interests or obligations hereunder to Notwithstanding any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything provision to the contrary contained in herein, Parent Guarantor agrees to be bound by the terms and conditions of this Agreement, nothing shall restrict ARTICLE X as if Parent from the sale, transfer, exchange, assignment or other disposition by any means of Guarantor was a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 Purchaser“Party.” * * * * *
Appears in 1 contract
Parent Guarantee. (a) Parent hereby irrevocably irrevocably, absolutely, fully and unconditionally, unconditionally guarantees (the “Parent Guarantee”) to the Buyers and their respective successors and permitted assigns the prompt and complete payment when and as primary obligor and not merely as surety, guarantees to Purchaser the full and timely payment by Seller when due of any obligation of Seller pursuant to this Agreement to the extent the same is required to be paid by Seller pursuant to the terms and subject to the conditions and limitations thereof.
(b) Parent hereby represents and warrants to Purchaser as all payment obligations of the date hereof and as of the Closing as follows:
(i) Parent is a corporation (A) duly incorporated, validly existing and in good standing Seller hereunder or under the Laws of Transaction Documents (the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into this Agreement and to carry out its obligations hereunder and to consummate the Contemplated Transactions“Guaranteed Obligations”). The execution and delivery by Parent of this Agreement has been duly authorized by all necessary action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement and the consummation of the Contemplated Transactions do not and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is bound.
(c) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding Notwithstanding anything to the contrary contained in herein, the liability of Parent under this AgreementParent Guarantee, nothing and Buyers’ right of recovery under this Parent Guarantee, is limited to a total aggregate amount equal to the Cap, which shall restrict be inclusive of any reasonable expenses of the Buyers of endeavoring to collect such amount or any part thereof and of enforcing this Parent from the sale, transfer, exchange, assignment or other disposition by any means of a majority of its equity securities, or all or substantially all of its assetsGuarantee (including reasonable attorney fees and court costs); provided, however, that such expenses shall be payable by Parent only to the extent that a Buyer is successful in connection enforcing payment of the applicable Guaranteed Obligation under this Parent Guarantee. This Parent Guarantee shall expire on the date that is fifteen (15) months after the Closing Date, and Parent will not be liable hereunder for the Guaranteed Obligations created, incurred, contracted, or assumed after such date; provided, however, that such expiration shall not affect, in any manner, rights arising under (i) this Parent Guarantee with respect to Guaranteed Obligations that have been created, incurred, or assumed prior to the applicable termination date or (ii) the obligations of the Seller or its Affiliates under this Agreement or the Transaction Documents; provided, further, however, that this Parent Guarantee shall not expire with respect to any claim for indemnification under this Agreement that was delivered to the Seller on or prior to the date that is fifteen (15) months after the Closing Date, and such claim (and the Parent’s Liability hereunder with regard thereto) shall survive until such claim is finally resolved. In the event of a default or failure by the Seller to make payment of the Guaranteed Obligations when due under this Agreement or the Transaction Documents (after any grace period therefor set forth in this Agreement or the Transaction Documents), Buyers may, at any time thereafter, submit written notice to Parent describing in reasonable detail the default or failure on the part of the Seller. Upon receipt of written notice of the default or failure, for a period of ten (10) days, Parent will have the option of curing any default or failure by the Seller that is curable. If the default or failure by the Seller has not been cured by the end of such ten (10) day period, Parent shall immediately make the payment due under this Parent Guarantee to the applicable Buyer by wire transfer of immediately available funds to the account specified by such Buyer. Parent agrees that the Parent Guarantee is a primary obligation of Parent and that the Buyers may enforce the Parent Guarantee in accordance with the terms of this Section 5.13 without the necessity at any time of resorting to or exhausting any other rights, remedies, security or collateral, by law or otherwise and Parent WAIVES any right to require that any action be brought against the Seller, or that Buyers be required to enforce, attempt to enforce or exhaust any such transactionrights or remedies against the Seller. This is a guarantee of payment when and as due and not merely of collection. Parent agrees that this Parent Guarantee shall not be discharged except by the complete and irrevocable performance of all Guaranteed Obligations up to the Cap. Parent hereby expressly waives presentment, protest, and notice of protest or dishonor of any of the successor Guaranteed Obligations hereby guaranteed, except as specifically provided for herein. Without limiting Parent’s own defenses and rights hereunder, Parent reserves to Parent itself all rights, setoffs, counterclaims and other defenses that the Seller may have to payment of all or purchaser any portion of substantially the Guaranteed Obligations except any legal or equitable discharge or defense arising from bankruptcy, insolvency, dissolution or liquidation of the Seller or Parent. Upon payment of all of the Guaranteed Obligations owing to the Buyers or payment up to the Cap, Parent shall be subrogated to the rights of Buyers against the Seller, and the Buyers agree to take, at Parent’s assets shall expressly assume in writing Parent’s obligations hereunder, a copy of sole cost and expense (which written assumption agreement shall be provided disregarded for purposes of the Cap), such reasonable steps as Parent may reasonably request to Purchaserimplement such subrogation.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Adams Resources & Energy, Inc.)
Parent Guarantee. (a) Parent hereby irrevocably shall cause Purchaser to perform all of its respective agreements, covenants and unconditionally, as primary obligor and not merely as surety, guarantees to Purchaser the full and timely payment by Seller when due of any obligation of Seller pursuant to obligations under this Agreement to and the extent the same is required to be paid by Seller pursuant to the terms and subject to the conditions and limitations thereofPurchase Agreements in accordance with their respective terms.
(b) Without limiting its direct obligations under this Agreement, Parent hereby represents fully and warrants to irrevocably guarantees (the “Guarantee”) the obligations of Purchaser as of the date hereof and as of the Closing as follows:
(i) Parent is a corporation (A) duly incorporated, validly existing and in good standing under the Laws of the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
(ii) Parent has all requisite corporate power and authority to enter into this Agreement and to carry out its obligations hereunder and to consummate the Contemplated Transactions. The execution and delivery by Parent of this Agreement has been duly authorized by all necessary action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent or its board of directors or stockholders are necessary to authorize this Agreement or the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery by the other parties hereto) the legal, valid and binding obligations of Parent enforceable against Parent in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement and the consummation Purchase Agreements (the “Guaranteed Obligations”). The Guarantee is a full, unconditional, irrevocable, absolute and continuing guaranty of performance and payment when due and not merely of collection, and Parent shall remain liable for the Guaranteed Obligations hereunder and under the Purchase Agreements until the performance or payment, as the case may be, of the Contemplated Transactions do Guaranteed Obligations. Seller shall not be obligated to file any claim relating to the Guaranteed Obligations in the event that Purchaser becomes subject to an insolvency, bankruptcy, reorganization or similar proceeding, and will notthe failure of Seller to so file shall not affect Parent’s obligations hereunder. In the event that any payment to Seller or other performance in respect of the Guaranteed Obligations must be returned or is rescinded, for any reason whatsoever, Parent shall remain liable hereunder with respect to the Guaranteed Obligations as if such payment or without notice performance had not been returned or lapse of time rescinded. Parent’s obligations hereunder may not be revoked or both, conflict with, contravene, result terminated and shall remain in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to full force and effect and shall be binding on Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is boundsuccessors and permitted assigns until the Guaranteed Obligations have been paid and performed in full.
(c) Parent agrees that its obligations hereunder shall not assign (whether be discharged, released, diminished or impaired, in whole or in part, by operation any set-off, counterclaim, defense, act or occurrence which Parent may have against Seller as a result of Law or otherwise) its rights, interests arising out of this Agreement or obligations hereunder to the Purchase Agreements or any other Person without transaction. Subject to the prior written consent of Purchaser. Any attempted assignment in violation provisions of this Section 9.17(c) 4.19, Parent shall be null have the rights, remedies and void; provided, that, notwithstanding anything legal or equitable defenses that are available to Purchaser under the contrary contained in terms of this Agreement, nothing shall restrict the Purchase Agreements or applicable Law with respect to the Guaranteed Obligations.
(d) Parent represents and warrants for and as to itself that it has received, or will receive, direct or indirect benefit from the sale, transfer, exchange, assignment or other disposition by any means making of a majority of its equity securities, or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially 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 PurchaserGuarantee.
Appears in 1 contract
Parent Guarantee. (a) Parent hereby irrevocably and unconditionally, as primary obligor and not merely as surety, guarantees Whenever in this Agreement the performance of or compliance with a covenant or obligation set forth in this Agreement (the “Seller Guaranteed Obligations”) is expressed to Purchaser the full and timely payment be required by Seller when due of any obligation of or its Affiliates, Seller pursuant Parent shall cause Seller and its Affiliates to this Agreement punctually perform or comply with such Seller Guaranteed Obligation. Subject to the extent provisions of this Agreement, if any Seller Guaranteed Obligation is not performed by Seller or its Affiliates when due, Seller Parent shall (subject to the same provisions of this Agreement), within ten (10) Business Days following the written request of Buyer when such Seller Guaranteed Obligation is required to be performed pursuant to this Agreement, (i) pay or cause Seller or its Affiliates to pay in full in cash any of such Seller Guaranteed Obligation that is in the nature of a payment obligation, and (ii) perform or cause Seller or its Affiliates to perform any of such Seller Guaranteed Obligation that is not in the nature of a payment obligation, to the extent due but not already paid or performed. In the event Seller Parent fails to so pay or perform (or cause such payment or performance by Seller pursuant to the terms and or its Affiliates) such Seller Guaranteed Obligation (subject to the conditions provisions of this Agreement), Buyer may, in addition to any and limitations thereofall other rights and remedies that may be available to Buyer in respect of such failure to so pay or perform (or cause such payment or performance by Seller or its Affiliates), thereafter initiate a proceeding to pursue any rights available thereto against Seller or its Affiliates, or Seller Parent, or both (at the election of Buyer) in respect of all Seller Guaranteed Obligations that have not then been paid or performed within ten (10) Business Days following the written request of Buyer contemplated by the preceding sentence. Buyer may continue to pursue such rights and remedies in respect of such Seller Guaranteed Obligation until the earlier of (x) the payment or performance of such Seller Guaranteed Obligation in accordance with the provisions of this Agreement, and (y) the final disposition of such proceeding in a final, non-appealable order of a court of competent jurisdiction or binding settlement agreement. Seller Parent’s obligations under this Section 4.11(a) shall survive the Closing.
(b) Whenever in this Agreement the performance of or compliance with a covenant or obligation set forth in this Agreement (the “Buyer Guaranteed Obligations”) is expressed to be required by Buyer or its Affiliates, Buyer Parent hereby represents shall cause Buyer and warrants its Affiliates to Purchaser as punctually perform or comply with such Buyer Guaranteed Obligation. Subject to the provisions of this Agreement, if any Buyer Guaranteed Obligation is not performed by Buyer or its Affiliates when due, Buyer Parent shall (subject to the date hereof and as provisions of this Agreement), within ten (10) Business Days following the Closing as follows:
written request of Seller when such Buyer Guaranteed Obligation is required to be performed pursuant to this Agreement, (i) Parent pay or cause Buyer or its Affiliates to pay in full in cash any of such Buyer Guaranteed Obligation that is in the nature of a corporation (A) duly incorporatedpayment obligation, validly existing and in good standing under the Laws of the State of Delaware and (B) with all requisite corporate power and authority to own and operate its properties and to carry on its business as presently conducted.
(ii) perform or cause Buyer or its Affiliates to perform any of such Buyer Guaranteed Obligation that is not in the nature of a payment obligation, to the extent due but not already paid or performed. In the event Buyer Parent has all requisite corporate power and authority fails to enter into this Agreement and so pay or perform (or cause such payment or performance by Buyer or its Affiliates) such Buyer Guaranteed Obligation (subject to carry out its obligations hereunder and to consummate the Contemplated Transactions. The execution and delivery by Parent provisions of this Agreement has been duly authorized Agreement), Seller may, in addition to any and all other rights and remedies that may be available to Seller in respect of such failure to so pay or perform (or cause such payment or performance by all necessary action on the part of Parent and no other proceedings (corporate or otherwise) on the part of Parent Buyer or its board Affiliates), thereafter initiate a proceeding to pursue any rights available thereto against Buyer or its Affiliates, or Buyer Parent, or both (at the election of directors Seller) in respect of all Buyer Guaranteed Obligations that have not then been paid or stockholders are necessary to authorize this Agreement or performed within ten (10) Business Days following the consummation written request of the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and constitutes (assuming the due authorization, execution and delivery Seller contemplated by the other parties heretopreceding sentence. Seller may continue to pursue such rights and remedies in respect of such Buyer Guaranteed Obligation until the earlier of (x) the legal, valid and binding obligations payment or performance of Parent enforceable against Parent such Buyer Guaranteed Obligation in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, restructuring or other Laws affecting creditors’ rights and remedies generally and general principles the provisions of equity (irrespective of whether enforcement is sought in a proceeding at law or in equity); and
(iii) The execution, delivery and performance by Parent of this Agreement and the consummation of the Contemplated Transactions do not and will not, with or without notice or lapse of time or both, conflict with, contravene, result in any violation of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or require a consent or waiver under, (A) any Law or Order applicable to Parent, (B) any terms or conditions of Parent’s Charter Documents, or (C) any material Contract to which Parent is a party or by which Parent or any of its assets is bound.
(c) Parent shall not assign (whether by operation of Law or otherwise) its rights, interests or obligations hereunder to any other Person without the prior written consent of Purchaser. Any attempted assignment in violation of this Section 9.17(c) shall be null and void; provided, that, notwithstanding anything to the contrary contained in this Agreement, nothing shall restrict Parent from and (y) the salefinal disposition of such proceeding in a final, transfer, exchange, assignment or other disposition by any means non-appealable order of a majority court of its equity securities, competent jurisdiction or all or substantially all of its assets; provided, however, in connection with any such transaction, the successor to Parent or purchaser of substantially all of Parent’s assets shall expressly assume in writing binding settlement agreement. Buyer Parent’s obligations hereunder, a copy of which written assumption agreement under this Section 4.11(b) shall be provided to Purchasersurvive the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Travelcenters of America LLC)