Common use of Replacement of Guaranties Clause in Contracts

Replacement of Guaranties. Buyer and Seller shall each use its reasonable best efforts to cooperate in an effort to cause the replacement, effective as of the Closing, of the guaranties listed in Section 7.10 of the Disclosure Schedule (collectively, the “Substituted Guaranties”); provided that neither Seller nor any of Seller’s Subsidiaries shall have any obligations to make payments or incur any costs or expenses, grant any concession or incur any other liability in connection with such cooperation pursuant to this Section 7.10 except to the extent Xxxxx agrees to promptly reimburse Seller or any of its respective Subsidiaries (and without limiting Seller’s obligation to indemnify Buyer for Indemnified Taxes); provided further, that if any such guaranty is not replaced effective as of the Closing, Buyer and Seller shall continue to use their respective reasonable best efforts to cause the replacement of any unreplaced guaranties. Without limiting the foregoing, neither Buyer nor any of its Subsidiaries shall extend or renew any Contract containing or underlying a Substituted Guaranty unless, prior to or concurrently with such extension or renewal, Buyer or one of its respective Affiliates (as applicable) is substituted in all respects for Seller and any of its respective Affiliates (as applicable), and Seller and its respective Affiliates are released in respect of all obligations of Seller and such Affiliates under such Substituted Guaranty. In no event shall Seller or any of its Subsidiaries be obligated to pay any money to any person to effect the replacements described in this Section 7.10. Buyer shall indemnify Seller and its Affiliates against any and all Liabilities and other Damages incurred or suffered by any such Person arising out of or resulting from the exercise by any third party of its rights against Seller or any of its Affiliates under any guaranty or other similar arrangement provided by Seller or any of its Affiliates in respect of any Liability of any Purchased Subsidiary or any Assumed Liability, to the extent Seller or its Affiliates are required to make any payment thereunder as a result of a failure by Buyer to perform the applicable obligation to such guaranties.

Replacement of Guaranties. Buyer and Seller shall each use its reasonable best efforts to cooperate in an effort to cause the replacement, effective as of the ClosingClosing (or in the case of the Delayed Assets, as of the Delayed Transfer Date), of the guaranties listed in Section 7.10 6.12 of the Disclosure Schedule (collectively, the “Substituted Guaranties”), including by obtaining bank guarantees and letters of credit to replace the Substituted Guarantees, in each case, to the extent necessary, and Seller shall reasonably cooperate in Buyer’s efforts; provided that neither Seller nor any of Seller’s Subsidiaries shall have any obligations to make payments or incur any costs or expenses, grant any concession or incur any other liability in connection with such cooperation pursuant to this Section 7.10 6.12 except to the extent Xxxxx Buyer agrees to promptly reimburse Seller or any of its respective Subsidiaries (and without limiting Seller’s obligation to indemnify Buyer for Indemnified Taxes)Subsidiaries; provided further, that if any such guaranty is not replaced effective as of the ClosingClosing (or in the case of the Delayed Assets, as of the Delayed Transfer Date), Buyer and Seller shall (i) continue to use their respective its reasonable best efforts to cause the replacement of any unreplaced guarantiesguaranties and (ii) indemnify Seller and its Affiliates with respect to any such unreplaced guaranties in accordance with Section 10.02(b)(iii) (but solely to the extent the liability with respect to such unreplaced guaranty is an Assumed Liability). Without limiting the foregoing, neither Buyer nor any of its Subsidiaries shall extend or renew any Contract containing or underlying a Substituted Guaranty unless, prior to or concurrently with such extension or renewal, Buyer or one of its respective Affiliates (as applicable) is substituted in all respects for Seller and any of its respective Affiliates (as applicable), and Seller and its respective Affiliates are released in respect of all obligations of Seller and such Affiliates under such Substituted Guaranty. In no event shall Seller Buyer or any of its Subsidiaries be obligated to pay any money to any person person, other than any payments required to obtain bank guarantees and letters of credit, to the extent necessary, and any other payments of de minimis amounts, to effect the replacements described in this Section 7.10. Buyer shall indemnify Seller and its Affiliates against any and all Liabilities and other Damages incurred or suffered by any such Person arising out of or resulting from the exercise by any third party of its rights against Seller or any of its Affiliates under any guaranty or other similar arrangement provided by Seller or any of its Affiliates in respect of any Liability of any Purchased Subsidiary or any Assumed Liability, to the extent Seller or its Affiliates are required to make any payment thereunder as a result of a failure by Buyer to perform the applicable obligation to such guaranties6.12.

Replacement of Guaranties. Buyer and Seller (a) Purchaser shall each use its reasonable best efforts to cooperate have released and cancelled each Seller Guarantee (other than any Seller Guarantee in an effort respect of Indebtedness that is paid in full under Section 5.17) set forth in item 4 on Section 3.18(a) of the Company Disclosure Schedule or to cause the replacementitself and/or one or more of its Affiliates or a letter of credit to be substituted for Seller and each of Seller and each of Seller’s Affiliates in respect of such Seller Guarantee, effective in each case, as of the Closing, Closing Date. To the extent such release or substitution of any Seller Guarantee contemplated by the guaranties listed in Section 7.10 first sentence of the Disclosure Schedule (collectively, the “Substituted Guaranties”); provided that neither Seller nor any of Seller’s Subsidiaries shall have any obligations to make payments or incur any costs or expenses, grant any concession or incur any other liability in connection with such cooperation pursuant to this Section 7.10 except to the extent Xxxxx agrees to promptly reimburse Seller or any of its respective Subsidiaries (and without limiting Seller’s obligation to indemnify Buyer for Indemnified Taxes); provided further, that if any such guaranty is 5.10(a) has not replaced effective been effected as of the ClosingClosing Date, Buyer (i) Purchaser and Seller shall continue to use their respective all commercially reasonable best efforts to terminate (without any surviving liability) the agreement underlying such Seller Guarantee as of the Closing Date or as soon as possible thereafter and (ii) until such agreement is terminated (without any surviving liability) Purchaser agrees, and after the Closing Date, shall cause the replacement Company, in each case, unconditionally and irrevocably, without the right of any unreplaced guaranties. Without limiting the foregoingsetoff, neither Buyer nor any of its Subsidiaries shall extend or renew any Contract containing or underlying a Substituted Guaranty unless, prior to or concurrently with such extension or renewal, Buyer or one of its respective Affiliates (as applicable) is substituted in all respects for Seller and any of its respective Affiliates (as applicable), and Seller and its respective Affiliates are released in respect of all obligations of Seller and such Affiliates under such Substituted Guaranty. In no event shall Seller or any of its Subsidiaries be obligated to pay any money to any person to effect the replacements described in this Section 7.10. Buyer shall to, reimburse and indemnify and hold harmless Seller for and its Affiliates against any payments, costs and all Liabilities and other Damages expenditures incurred or suffered by any such Person arising out of or resulting from the exercise by any third party of its rights against Seller or any of its Affiliates under any guaranty or other similar arrangement provided by Seller or any of its Affiliates after the Closing as relating to such Seller Guarantee until the complete release of Seller and its Affiliates under such Seller Guarantee. If, notwithstanding Purchaser’s reasonable best efforts described above, any Seller Guarantee (other than any Seller Guarantee in respect of Indebtedness that is paid in full under Section 5.17) is outstanding after the Closing Date, Purchaser shall cause the Company to deliver at the Closing an irrevocable letter of credit in an amount sufficient to cover all of Purchaser’s and the Company’s potential payment, reimbursement and indemnification obligations under this Section 5.10, including with respect to the Sale Lease-Back, the amount set forth on Schedule 5.10 of the Company Disclosure Schedule; provided, however, that in no event shall Purchaser or any of its Affiliates be required to obtain an aggregate amount of letters of credit in excess of $110 million. Seller shall be the beneficiary of each such letter of credit. (b) Any payment to the Seller made pursuant to Section 5.10(a) shall, except as required by Law, be made without withholding or deduction for or on account of any Taxes imposed by any jurisdiction or any political subdivision or taxing authority thereof or therein and Purchaser agrees, and after the Closing Date shall cause the Company, to indemnify and hold Seller harmless from any such Taxes other than Excluded Taxes as defined below. If any such Taxes are required to be withheld or deducted from any such payment, Purchaser agrees, and after the Closing Date shall cause the Company, to pay such additional amounts as may be necessary to ensure that the net amount actually received by the Seller after such withholding or deduction is equal to the amount that the Seller would have received had no such withholding or deduction been required, provided, however, that no such additional amounts shall be payable in respect of any Liability Taxes imposed on the net income of the Seller by the jurisdiction under the laws of which the Seller is organized or has its principal place of business or Taxes required to be withheld under applicable Law for Seller’s failure to deliver the certificate described in Section 1.03(c)(iv) of this Agreement (such Taxes, “Excluded Taxes“). Seller shall provide Purchaser or the Company upon request with any certification, identification, information, or other documentation reasonably necessary for any exemption from, or reduction in the rate of any Purchased Subsidiary or any Assumed Liability, Taxes for which additional amounts are payable hereunder. Seller and Purchaser agree that all payments pursuant to Section 5.09(a) shall be treated for tax purposes as an adjustment to the extent Cash Purchase Price. (c) If (i) there has not been a termination prior to the Closing of the sale lease-back arrangement (such arrangement and all related agreements, the “Sale Lease-Back“) entered into by the Company pursuant to the Participation Agreement, among the Company and the other parties named therein, dated as of December 23, 1997 (the “Participation Agreement“), and the Lease Agreement, between Wilmington Trust Company and the Company, dated as of December 23, 1997 (the “Lease Agreement“) (it being understood that there shall be no obligation of Seller or the Company to terminate such Sale Lease-Back before the Closing) or (ii) without limiting Section 5.10(a), Purchaser has not caused the full and unconditional release of the Seller Guarantee, dated November 15, 2002, related thereto or provided reasonable assurance to Seller that the Company has and will have sufficient cash-on-hand to satisfy the Company’s obligations to fund the obligations described in clauses (x) and (y) of this Section 5.09(c), then Purchaser shall not, and shall not permit the Company to, (x) terminate the Sale Lease-Back by purchasing the Facility (as defined in the Participation Agreement) as permitted by Section 12A(b) of the Lease Agreement or (y) exercise its Affiliates are required to make any payment thereunder Purchase Option (as a result defined in the Participation Agreement) as permitted by Section 14(a)(i) of a failure by Buyer to perform the applicable obligation to such guarantiesLease Agreement.

Replacement of Guaranties. At Buyer’s sole cost and expense, prior to the Closing: (a) Buyer shall use commercially reasonable efforts to take all steps reasonably necessary, and Seller shall each use its reasonable best efforts cooperate (it being understood that such cooperation shall not include any requirement by Seller to cooperate in an effort pay any consideration or offer or grant any financial accommodation) with Buyer, to cause the replacementensure that, effective as of the Closing, (i) Seller and its Affiliates (other than any Acquired Company Group Member) shall be released from one hundred percent (100%) of the guaranties listed in Section 7.10 obligations or Liabilities relating to or arising under or out of the Disclosure Schedule (collectively, the “Substituted Guaranties”); provided that neither Seller nor any of Seller’s Subsidiaries shall have any obligations to make payments or incur any costs or expenses, grant any concession or incur any other liability in connection with such cooperation pursuant to each Support Obligation, and (ii) substitute arrangements, if required by a beneficiary of any Support Obligation, of Buyer or its Affiliates (other than any Acquired Company Group Member, unless the Closing has occurred) shall be in effect. (b) Without limiting the foregoing, in the event that the requirements set forth in clause (a) of this Section 7.10 except to the extent Xxxxx agrees to promptly reimburse Seller or any of its respective Subsidiaries (and without limiting Seller’s obligation to indemnify Buyer for Indemnified Taxes); provided further, that if any such guaranty is 7.22 are not replaced effective met as of the Closing, Buyer and subject to acceptance by Seller shall continue to use their respective in its reasonable best efforts to cause the replacement of any unreplaced guaranties. Without limiting the foregoing, neither Buyer nor any of its Subsidiaries shall extend or renew any Contract containing or underlying a Substituted Guaranty unless, prior to or concurrently with such extension or renewaldiscretion, Buyer or one its Affiliates shall, in lieu of its respective Affiliates (as applicable) is substituted in all respects for Seller and any of its respective Affiliates (as applicable), and Seller and its respective Affiliates are released providing substitute arrangements in respect of all obligations the Support Obligations pursuant to clause (a)(ii) of Seller and such Affiliates under such Substituted Guaranty. In no event shall Seller or any of its Subsidiaries be obligated to pay any money to any person to effect the replacements described in this Section 7.10. Buyer shall indemnify Seller and its Affiliates against any and all Liabilities and other Damages incurred 7.22, enter into such reasonable indemnification or suffered by any such Person arising out of or resulting from the exercise by any third party of its rights against reimbursement agreements with Seller or any of its Affiliates under as reasonably necessary to provide Seller and such Affiliates with an effective release or full indemnification with respect to all obligations and Liabilities of Seller and such Affiliates to be released pursuant to clause (a) of this Section 7.22 and, after the Closing, Buyer and its Affiliates shall use commercially reasonable efforts to effect substitute arrangements to replace such Support Obligations; provided that, upon any guaranty such substitute arrangement or other similar arrangement provided by Seller replacement being effectuated, Buyer or any its Affiliates, as applicable, shall be automatically released from all of its Affiliates obligations and Liabilities in respect of any Liability the underlying indemnification and reimbursement arrangement with respect to events that occur or arise after the date of any Purchased Subsidiary such substitute arrangement or any Assumed Liability, to the extent Seller or its Affiliates are required to make any payment thereunder as a result of a failure by Buyer to perform the applicable obligation to such guarantiesreplacement.