Common use of Terms of Guarantee Clause in Contracts

Terms of Guarantee. (a) This Guarantee is an unconditional and continuing guarantee of payment and performance, not of collection, and a separate or joint action or actions may be brought and prosecuted against each Guarantor to enforce this Guarantee, irrespective of whether any action is brought against Parent, Merger Sub or any other Person or whether Parent, Merger Sub or any other Person is joined in any such action or actions. Except in the case of the insolvency or bankruptcy, or other similar proceeding, of a Guarantor, the Guaranteed Party shall not release a Guarantor from any obligations under this Guarantee except to the extent the Guaranteed Party offers to release the other Guarantor under this Guarantee under the same terms and conditions and in the same proportion. Notwithstanding anything to the contrary contained in this Guarantee or any other document, the obligations of each Guarantor under this Guarantee to pay monies as provided herein shall be several and not joint. All payments hereunder shall be made in lawful money of the United States, in immediately available funds. (b) The liability of each Guarantor under this Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of: (i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreements dated as of the date hereof between each Guarantor and Parent, pursuant to which such Guarantors have agreed to make a certain equity contribution to Parent (the “Equity Commitment Letters”) or any other agreement or instrument referred to herein or therein; (ii) any release or discharge of any obligation of Parent or Merger Sub contained in the Merger Agreement resulting from any change in the limited partnership or corporate existence, as applicable, structure or ownership of Parent or Merger Sub, or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting Parent or Merger Sub, or any other Person now or hereafter interested in the transactions contemplated by the Merger Agreement, other than as and if expressly required by Section 2(a), or any of their respective assets; (iii) any valid amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof; (iv) subject to the last sentence of this section 2(b), the existence of any claim, set-off or other right that either Guarantor may have at any time against Parent, Merger Sub or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise; (v) the failure of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against Parent, Merger Sub or the Guarantors or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation, other than as and if expressly required by Section 2(a) (including, without limitation, in the event any Person becomes subject to a bankruptcy, reorganization, insolvency, liquidation or similar proceeding instituted by or against either Guarantor); (vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of any of the Guaranteed Obligations; or (vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantors or otherwise operate as a discharge of either Guarantor as a matter of law or equity (other than as a result of payment of the Guaranteed Obligations in accordance with their terms); Notwithstanding any other provision of this Guarantee to the contrary, each Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by such Guarantor under this Guarantee, any claim, set-off, deduction, defense or release that Parent or Merger Sub asserts or has the right to assert against the Guaranteed Party subject to the terms of the Merger Agreement that would relieve each of Parent and Merger Sub of its obligations under the Merger Agreement, except as provided in Section 2(b)(ii), which release or discharge the Guarantors may not assert. (c) Each Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Guaranteed Party upon this Guarantee or acceptance of this Guarantee. Without expanding the obligations of each Guarantor hereunder, the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all dealings between Parent and/or either Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guarantee. Except as provided in Section 2(a), when pursuing any of its rights and remedies hereunder against the Guarantors, the Guaranteed Party shall be under no obligation to pursue (or elect among) such rights and remedies it may have against Parent, Merger Sub, any other Guarantor or any other Person for the Guaranteed Obligations or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue (or elect among) such other rights or remedies or to collect any payments from Parent, Merger Sub, or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of Parent, Merger Sub, or any such other Person or any right of offset, shall not relieve either Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party, subject to the provisions of Section 2(b). (d) Each Guarantor irrevocably waives promptness, diligence, grace, acceptance hereof, presentment, demand, notice of non-performance, default, dishonor and protest and any other notice not provided for herein (except for notices to be provided to Parent and its counsel pursuant to the terms of the Merger Agreement). (e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that Parent becomes subject to a bankruptcy, insolvency, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect either Guarantor’s obligations hereunder. In the event that any payment to the Guaranteed Party in respect of any Guaranteed Obligation is rescinded or must otherwise be returned to Parent, Merger Sub, either Guarantor, or any other Person for any reason whatsoever, the Guarantors shall remain liable hereunder with respect to such Guaranteed Obligation as if such payment had not been made so long as this Guarantee has not terminated in accordance with its terms.

Terms of Guarantee. (a) This Guarantee is an unconditional 3.1 The Guarantor acknowledges and continuing guarantee agrees that the Company may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment and performance, not of collectionthe Obligations, and a separate or joint action or actions also may be brought and prosecuted against each Guarantor to enforce this Guarantee, irrespective of whether make any action is brought against agreement with Parent, Merger Sub for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any other Person modification of the terms thereof or whether Parent, Merger Sub or of any other Person is joined agreement between the Company and Parent without in any such action way impairing or actions. Except in affecting the case of the insolvency or bankruptcy, or other similar proceeding, of a Guarantor, the Guaranteed Party shall not release a Guarantor from any ’s obligations under this Guarantee except to or affecting the extent the Guaranteed Party offers to release the other validity or enforceability of this Guarantee. The Guarantor under this Guarantee under the same terms acknowledges and conditions and in the same proportion. Notwithstanding anything to the contrary contained in this Guarantee or any other document, agrees that the obligations of each the Guarantor under this Guarantee to pay monies as provided herein shall be several and not joint. All payments hereunder shall not be made in lawful money of the United Statesreleased or discharged, in immediately available funds. (b) The liability of each Guarantor under this Guarantee shallwhole or in part, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of: or otherwise affected by: (i) the value, genuineness, validity, illegality failure or enforceability delay of the Company to assert any claim or demand or to enforce any right or remedy against Parent under the Merger Agreement or the letter agreements dated as Guarantor hereunder with respect to the Obligations; (ii) any change in the time, place or manner of payment of the date hereof between each Guarantor Obligations or any recession, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement (other than express written amendments to the Obligations and Parent, pursuant then only to which such Guarantors have agreed to make a certain equity contribution to Parent (the “extent so amended) or the commitment under the Equity Commitment Letters”) Letter made in accordance with the terms thereof or any other agreement evidencing, securing or instrument referred to herein otherwise executed in connection with the Obligations; (iii) the addition, substitution or therein; (ii) any release or discharge of any obligation of Parent or Merger Sub contained in the Merger Agreement resulting from any change in the limited partnership or corporate existence, as applicable, structure or ownership of Parent or Merger Sub, or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting Parent or Merger Sub, or any other Person now or hereafter liable for the Obligations or otherwise interested in the transactions contemplated by the Merger Agreement, other than as and if expressly required by Section 2(a), or any of their respective assets; Agreement made in accordance with the terms thereof; (iiiiv) any valid amendment or modification of the Merger Agreement, or any change in the mannercorporate existence, place structure or terms ownership of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof; (iv) subject to the last sentence of this section 2(b), the existence of any claim, set-off or other right that either Guarantor may have at any time against Parent, Merger Sub or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise; (v) the failure of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against Parent, Merger Sub or the Guarantors Parent or any other Person primarily now or secondarily hereafter liable with respect to the Obligations; (v) any Guaranteed Obligationinsolvency, other than as and if expressly required by Section 2(a) (including, without limitation, in the event any Person becomes subject to a bankruptcy, reorganization, insolvency, liquidation reorganization or other similar proceeding instituted (or by any consequences or against either Guarantor); effects thereof) affecting Parent or any other Person liable with respect to the Obligations; (vi) any and all rights or defenses arising by reason of Parent’s or Merger Sub’s capacity or ability to enter into or perform its obligations under the Merger Agreement or any lack of validity or enforceability of the Merger Agreement or any agreement or instrument relating thereto; or (vii) the adequacy of any other means the Guaranteed Party Company may have of obtaining repayment of any of the Guaranteed Obligations; or (vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantors or otherwise operate as a discharge of either Guarantor as a matter of law or equity (other than as a result of payment of the Guaranteed Obligations in accordance with their terms); Notwithstanding any other provision of this Guarantee to Obligations. 3.2 The Company hereby agrees that the contrary, each Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by such Guarantor it under this Guarantee, Guarantee or any claim, set-off, deduction, defense or release release, any defense to such payment that Parent or Merger Sub asserts or has the right to could assert against the Guaranteed Party subject to Company under the terms of the Merger Agreement that would relieve each of Parent and Merger Sub of its obligations under or with respect to the Merger Agreement, except as provided otherwise set forth in this Guarantee (including, for the avoidance of doubt, as set forth in clauses (v) and (vi) of Section 2(b)(ii3.1 hereof and Section 3.4 hereof), which release or discharge the Guarantors may not assert. (c) Each Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed 3.3 The Obligations and notice of or proof of reliance by the Guaranteed Party upon this Guarantee or acceptance of this Guarantee. Without expanding the obligations of each Guarantor hereunder, the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all negotiations and dealings between Parent and/or either the Guarantor, on the one hand, and the Guaranteed PartyCompany, on the otherother hand, shall of the terms of the Merger Agreement and the transactions contemplated thereby shall, in each case, likewise be conclusively presumed to have been had or consummated consummated, as the case may be, in reliance upon this Guarantee. Except as provided in . 3.4 Subject to Section 2(a), when pursuing any of its rights and remedies hereunder against the Guarantors7 hereof, the Guaranteed Party Guarantor hereby covenants and agrees that it shall not institute, and shall cause its Affiliates not to institute, any proceeding asserting that this Guarantee is illegal, invalid or unenforceable in accordance with its terms. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Merger Agreement and that the waivers set forth in this Guarantee are knowingly made in contemplation of such benefits and after the advice of counsel. The Company shall not be under no obligation obligated to pursue (file any suit or elect among) such rights and remedies it may have against take any action, or provide any notice to, Parent, Merger Sub, any other Guarantor or any other Person for others, except as expressly provided in the Guaranteed Obligations Merger Agreement or any right of offset with respect theretoin this Guarantee, including, without limitation, in the event that Parent becomes subject to a bankruptcy, reorganization or similar proceeding, and any the failure by of the Guaranteed Party Company to pursue (so file, act or elect among) such other rights or remedies or to collect any payments from Parent, Merger Sub, or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of Parent, Merger Sub, or any such other Person or any right of offset, provide notice shall not relieve either Guarantor of any liability hereunder, and shall not impair or affect the Company’s rights and remedieshereunder. To the fullest extent permitted by applicable law, whether express, implied or available as a matter of Law, of the Guaranteed Party, subject to the provisions of Section 2(b). (d) Each Guarantor irrevocably hereby expressly waives promptness, diligence, grace, notice of the acceptance hereofof this Guarantee, presentment, demanddemand for payment, notice of non-performance, default, dishonor and protest protest, notice of the Obligations incurred, notices of the creation, renewal, extension or accrual of any of the Obligation, notice of or proof of reliance by the Company upon this Guarantee and all other notices of any kind (other notice not provided for herein (except for than notices expressly required to be provided to Parent and its counsel pursuant to the terms Merger Agreement or to Guarantor hereunder), all defenses that may be available by virtue of the Merger Agreement). (e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that Parent becomes subject to a bankruptcyvaluation, insolvencystay, reorganization moratorium or similar proceedinglaw now or hereafter in effect, and any right to require the failure marshalling of the Guaranteed Party to so file shall not affect either Guarantor’s obligations hereunder. In the event that any payment to the Guaranteed Party in respect assets of any Guaranteed Obligation is rescinded or must otherwise be returned to Parent, Merger Sub, either Guarantor, Parent or any other Person for any reason whatsoever, the Guarantors shall remain now or hereafter liable hereunder with respect to such Guaranteed Obligation as if such any of the Obligations or otherwise interested in the transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than fraud by the Company, defenses to the payment had not been made so long as of Obligations that are available to Parent under the Merger Agreement, and/or breach by the Company of this Guarantee has not terminated in accordance with its termsGuarantee).

Terms of Guarantee. (a) This Guarantee is an unconditional and continuing guarantee one of payment and performancepayment, not of just collection, and a separate or joint action or actions may be brought and prosecuted against each the Guarantor to enforce this the Guarantee, irrespective of whether any action is brought against Parent, Merger Sub or any other Person or whether Parent, Merger Sub or any other Person is joined in any such action or actions. Except in the case of the insolvency or bankruptcy, or other similar proceeding, of a Guarantor, the Guaranteed Party shall not release a Guarantor from any obligations under this Guarantee except to the extent the Guaranteed Party offers to release the other Guarantor under this Guarantee under the same terms and conditions and in the same proportion. Notwithstanding anything to the contrary contained in this Guarantee or any other document, the obligations of each Guarantor under this Guarantee to pay monies as provided herein shall be several and not joint. All payments hereunder shall be made in lawful money of the United States, in immediately available funds. (b) If so requested in writing by the Guaranteed Party (in its sole and absolute discretion) at a time when the Guaranteed Party is entitled to enforce the Guarantee, then the Guarantor hereby absolutely, unconditionally and irrevocably covenants to (i) purchase equity securities of Parent or otherwise provide funding to Parent in an amount equal to the aggregate amount of Guaranteed Obligations that the Guaranteed Party is entitled to enforce under this Guarantee and (ii) cause Parent to perform such Guaranteed Obligations. (c) The liability of each the Guarantor under this Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable absolute and unconditional, unconditional irrespective of: (i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreements dated as of the date hereof between each Guarantor and Parent, pursuant to which such Guarantors have agreed to make a certain equity contribution to Parent (the “Equity Commitment Letters”) or any other agreement or instrument referred to herein or therein; (ii) any release or discharge of any obligation of Parent or Merger Sub contained in the Merger Agreement resulting from any change in the limited partnership or corporate existence, as applicable, structure or ownership of Parent or Merger Sub, or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting of Parent or Merger Sub, Sub or any other Person now or hereafter interested in the transactions contemplated by the Merger Agreement, other than as and if expressly required by Section 2(a), or affecting any of their respective assets; (iiiii) any valid amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance ofperformance, or any change or extension of the time of payment or performance of, or any renewal or alteration of any of, the Guaranteed ObligationObligations, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof, or any amendment or waiver of or any consent to any departure from the terms of the Merger Agreement or the documents entered into in connection therewith, in each case, made in accordance with the terms thereof; (iviii) subject to the last sentence of this section 2(b), the existence of any claim, set-off or other right that either the Guarantor may have at any time against Parent, Parent or Merger Sub or the Guaranteed PartySub, whether in connection with any the Guaranteed Obligation Obligations or otherwise; (viv) the failure any lack or limitation of the Guaranteed Party to assert any claim status or demand power, incapacity, disability or enforce any right or remedy against Parent, Merger Sub or the Guarantors or any other Person primarily or secondarily liable with legal limitation of Parent in respect to any Guaranteed Obligation, other than as and if expressly required by Section 2(a) (including, without limitation, in the event any Person becomes subject to a bankruptcy, reorganization, insolvency, liquidation or similar proceeding instituted by or against either Guarantor); (vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of any of the Guaranteed Obligations; or (viiv) any other act change in the law of any jurisdiction, or omission that may in any manner present or to future action or order of any extent vary the risk of the Guarantors Governmental Authority, amending, varying, reducing or otherwise operate as a discharge of either Guarantor as a matter of law affecting the validity or equity (other than as a result of payment enforceability of the Guaranteed Obligations or the obligations of the Guarantor in accordance with their terms); Notwithstanding any other provision respect of this Guarantee to the contrary, each Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by such Guarantor under this Guarantee, any claim, set-off, deduction, defense or release that Parent or Merger Sub asserts or has the right to assert against the Guaranteed Party subject to the terms of the Merger Agreement that would relieve each of Parent and Merger Sub of its obligations under the Merger Agreement, except as provided in Section 2(b)(ii), which release or discharge the Guarantors may not assertObligations. (c) Each Guarantor hereby waives any and all notice of In the creation, renewal, extension or accrual of any of event that the Guaranteed Obligations and notice of or proof of reliance by payment to the Guaranteed Party upon this Guarantee or acceptance in respect of this Guarantee. Without expanding the obligations of each Guarantor hereunder, the Guaranteed Obligations, or a portion thereof, is rescinded or otherwise must be (and is) returned to the Guarantor for any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all dealings between Parent and/or either Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guarantee. Except as provided in Section 2(a), when pursuing any of its rights and remedies hereunder against the Guarantorsreason whatsoever, the Guaranteed Party Guarantor shall be under no obligation remain liable hereunder with respect to pursue (or elect among) such rights and remedies it may have against Parent, Merger Sub, any other Guarantor or any other Person for the Guaranteed Obligations or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue (or elect among) as if such other rights or remedies or to collect any payments from Parent, Merger Subpayment, or any such other Person or to realize upon or to exercise any such right of offsetthat portion, and any release by the Guaranteed Party of Parent, Merger Sub, or any such other Person or any right of offset, shall had not relieve either Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party, subject to the provisions of Section 2(b)been made. (d) Each To the fullest extent permitted by law, the Guarantor irrevocably hereby expressly waives any and all rights or defenses related to this Guarantee arising by reason of any law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, grace, notice of acceptance hereofof this Guarantee and of the Guaranteed Obligations, presentment, demanddemand for payment, notice of non-performance, default, dishonor and protest protest, notice of the incurrence of the Guaranteed Obligations and all other notices of any kind, and any requirement that the Guaranteed Party exhaust any right, power or remedy or proceed against Parent, the Guarantor or any other notice not provided for herein (except for notices Person, all defenses which may be available by virtue of any stay, moratorium law or other similar law now or hereafter in effect, any right to be provided to require the marshalling of assets of Parent and its counsel pursuant to or any other Person interested in the terms of transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to Parent or Merger Sub under the Merger Agreement, which defenses shall be available to the Guarantor with respect to the Guaranteed Obligations, or breach by the Guaranteed Party of this Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from consummation of the transactions contemplated by the Merger Agreement and that the waivers set forth in this Guarantee are knowingly made in contemplation of such benefits. (e) The Guaranteed Party Guarantor hereby covenants and agrees that it shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that Parent becomes subject to a bankruptcy, insolvency, reorganization or similar proceedinginstitute, and the failure of the Guaranteed Party shall cause its Affiliates to so file shall not affect either Guarantor’s obligations hereunder. In the event institute, any action, suit or other proceeding or bring any other claim asserting that any payment to the Guaranteed Party in respect of any Guaranteed Obligation is rescinded or must otherwise be returned to Parent, Merger Sub, either Guarantor, this Guarantee or any other Person for any reason whatsoeverterm or condition set forth herein is illegal, the Guarantors shall remain liable hereunder with respect to such Guaranteed Obligation as if such payment had not been made so long as this Guarantee has not terminated invalid or unenforceable in accordance with its terms. (f) Except as explicitly set forth herein or in the Merger Agreement, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights in connection with the transactions contemplated by the Merger Agreement that it may now have or hereafter acquire against Parent or any other Person interested in the transactions contemplated by the Merger Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s Guaranteed Obligations under or in respect of this Guarantee, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from Parent or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations shall have been paid in full in cash; provided, that the Guarantor shall have the right to cause any other Person to satisfy the Guaranteed Obligations to the Guaranteed Party hereunder.

Terms of Guarantee. (a) This Guarantee is an unconditional and continuing guarantee one of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual of collection of any of the Guaranteed Obligations or operated as a discharge thereof) and performance, not of collection. (b) The obligations of each Guarantor hereunder are independent of the obligations of the other Guarantor, the Seller or any Selling Subsidiary, and a separate or joint action or actions may be brought and prosecuted against each Guarantor to enforce this Guarantee, irrespective of whether any or not action is brought against Parentthe other Guarantor, Merger Sub the Seller or any Selling Subsidiary and whether or not such other Person or whether ParentGuarantor, Merger Sub the Seller or any other Person Selling Subsidiary is joined in any such action or actions. Except in Any payment required to be made by a Guarantor hereunder may be required by the case Company on any number of occasions. (c) Each Guarantor hereby waives any and all notice of the insolvency creation, renewal, extension, increase, amendment, modification or bankruptcyaccrual, in whole or other similar proceedingin part, of a Guarantor, any Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party shall not release a Guarantor from any obligations under this Guarantee except to the extent the Guaranteed Party offers to release the other Guarantor under this Guarantee under the same terms and conditions and in the same proportion. Notwithstanding anything to the contrary contained in Company upon this Guarantee or any other document, the obligations acceptance of each Guarantor under this Guarantee; provided that this Guarantee to pay monies as provided herein shall may only be several and not joint. All payments hereunder shall be made enforced against a Guarantor in lawful money the event that the payment of the United States, in immediately available fundsapplicable Guaranteed Obligation is due pursuant to the terms of the applicable agreement giving rise to such Guaranteed Obligation and the Seller or a Selling Subsidiary owing such payment does not pay such Guaranteed Obligation within the period provided therein. (bd) The liability of each Guarantor under this Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of: (i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreements dated as of the date hereof between each Guarantor and Parent, pursuant to which such Guarantors have agreed to make a certain equity contribution to Parent (the “Equity Commitment Letters”) or any other agreement or instrument referred to herein or therein; (ii) any release or discharge of any obligation of Parent or Merger Sub contained in the Merger Agreement resulting from any change in the limited partnership or corporate existence, as applicable, structure or ownership of Parent or Merger Sub, or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting Parent or Merger Sub, or any other Person now or hereafter interested in the transactions contemplated by the Merger Agreement, other than as and if expressly required by Section 2(a), or any of their respective assets; (iii) any valid amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof; (iv) subject to the last sentence of this section 2(b), the existence of any claim, set-off or other right that either Guarantor may have at any time against Parent, Merger Sub or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise; (v) the failure of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against Parent, Merger Sub or the Guarantors or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation, other than as and if expressly required by Section 2(a) (including, without limitation, in the event any Person becomes subject to a bankruptcy, reorganization, insolvency, liquidation or similar proceeding instituted by or against either Guarantor); (vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of any of the Guaranteed Obligations; or (vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantors or otherwise operate as a discharge of either Guarantor as a matter of law or equity (other than as a result of payment of the Guaranteed Obligations in accordance with their terms); Notwithstanding any other provision of this Guarantee to Guarantee, except as set forth in the contrarylast sentence of this clause (d) or otherwise in Paragraph 7 hereof, the Company hereby agrees that (i) each Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by such Guarantor under this Guarantee, any claim, set-off, deduction, defense or release that Parent the Seller or Merger Sub asserts or has the right to a Selling Subsidiary could assert against the Company or its applicable Affiliate under the terms of, or with respect to, any agreement giving rise to a Guaranteed Party subject Obligation and (ii) any failure by the Company to comply with the terms of any agreement giving rise to a Guaranteed Obligation, including, without limitation, any breach by the Company of any representation, warranty or covenant contained therein or in any of the agreements, certificates and other documents required to be delivered by the Company pursuant to the terms of the Merger Agreement such agreement (whether such breach results from fraud, intentional misrepresentation or otherwise), that would relieve each of Parent and Merger Sub Seller or any Selling Subsidiary of its obligations under such agreement giving rise to a Guaranteed Obligation shall likewise automatically and without any further action on the Merger Agreement, except as provided in Section 2(b)(ii), which release or discharge the Guarantors may not assert. (c) part of any Person relieve Guarantor of its obligations under this Guarantee with respect to such Guaranteed Obligation. Each Guarantor hereby waives any and all notice defenses which the Seller or a Selling Subsidiary, as applicable, may have or assert regarding (i) the insolvency, bankruptcy, liquidation or dissolution of the creationSeller or such Selling Subsidiary or (ii) the invalidity, renewalillegality, extension voidability or accrual unenforceability of any of the Guaranteed Obligations and notice of or proof of reliance by the Guaranteed Party upon this Guarantee or acceptance of this Guarantee. Without expanding the obligations of each Guarantor hereunder, the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all dealings between Parent and/or either Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guarantee. Except as provided in Section 2(a), when pursuing any of its rights and remedies hereunder against the Guarantors, the Guaranteed Party shall be under no obligation to pursue (or elect among) such rights and remedies it may have against Parent, Merger Sub, any other Guarantor or any other Person for portion of the Guaranteed Obligations or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue (or elect among) such other rights or remedies or to collect any payments from Parent, Merger Sub, or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of Parent, Merger Sub, or any such other Person or any right of offset, shall not relieve either Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available Transaction Agreement as a matter result of Lawultra xxxxx or other lack of authority, of the Guaranteed Party, subject to the provisions of Section 2(b). (d) Each Guarantor irrevocably waives promptness, diligence, grace, acceptance hereof, presentment, demand, notice of non-performance, default, dishonor and protest and any defective formation or other notice not provided for herein (except for notices to be provided to Parent and its counsel pursuant to the terms of the Merger Agreement). (e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that Parent becomes subject to a bankruptcy, insolvency, reorganization organizational deficiencies or similar proceeding, and the failure types of the Guaranteed Party to so file shall not affect either Guarantor’s obligations hereunder. In the event that any payment to the Guaranteed Party in respect of any Guaranteed Obligation is rescinded or must otherwise be returned to Parent, Merger Sub, either Guarantor, or any other Person for any reason whatsoever, the Guarantors shall remain liable hereunder with respect to such Guaranteed Obligation as if such payment had not been made so long as this Guarantee has not terminated in accordance with its termsdefenses.

Terms of Guarantee. (a) This Guarantee is an unconditional and continuing guarantee of payment and performance, not of collection, and a separate or joint action or actions may be brought and prosecuted against each Guarantor to enforce this Guarantee, irrespective of whether any action is brought against Parent, Merger Sub or any other Person or whether Parent, Merger Sub or any other Person is joined in any such action or actions. Except in the case of the insolvency or bankruptcy, or other similar proceeding, of a Guarantor, the Guaranteed Party shall not release a Guarantor from any obligations under this Guarantee except to the extent the Guaranteed Party offers to release the other Guarantor under this Guarantee under the same terms and conditions and in the same proportion. Notwithstanding anything to the contrary contained in this Guarantee or any other document, the obligations of each Guarantor under this Guarantee to pay monies as provided herein shall be several and not joint. All payments hereunder shall be made in lawful money of the United States, in immediately available funds. (b) The liability of each Guarantor under this Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of: (i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreements dated as of the date hereof between each Guarantor and Parent, pursuant to which such Guarantors have agreed to make a certain equity contribution to Parent (the “Equity Commitment Letters”) or any other agreement or instrument referred to herein or therein; (ii) any release or discharge of any obligation of Parent or Merger Sub contained in the Merger Agreement resulting from any change in the limited partnership or corporate existence, as applicable, structure or ownership of Parent or Merger Sub, or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting Parent or Merger Sub, or any other Person now or hereafter interested in the transactions contemplated by the Merger Agreement, other than as and if expressly required by Section 2(a), or any of their respective assets; (iii) any valid amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof; (iv) subject to the last sentence of this section 2(b), the existence of any claim, set-off or other right that either Guarantor may have at any time against Parent, Merger Sub or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise; (v) the failure of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against Parent, Merger Sub or the Guarantors or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation, other than as and if expressly required by Section 2(a) (including, without limitation, in the event any Person becomes subject to a bankruptcy, reorganization, insolvency, liquidation or similar proceeding instituted by or against either Guarantor); (vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of any of the Guaranteed Obligations; or (vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantors or otherwise operate as a discharge of either Guarantor as a matter of law or equity (other than as a result of payment of the Guaranteed Obligations in accordance with their terms); Notwithstanding any other provision of this Guarantee to Guarantee, the contrary, each Guarantor Company hereby agrees that (i) the Guarantors may assert, as a defense to, or release or discharge of, to any payment or performance by such Guarantor the Guarantors under this Guarantee, any claim, set-off, deduction, deduction or defense or release that Parent or Merger Sub asserts or has the right to MergerCo could assert against the Guaranteed Party subject Company under the terms of the Merger Agreement or that could otherwise be asserted by Parent or MergerCo against the Company in any action by the Company against Parent or MergerCo and (ii) any failure by the Company to comply with the terms of the Merger Agreement, including, without limitation, any breach by the Company of the representations and warranties contained therein or in any of the agreements, certificates and other documents required to be delivered by the Company pursuant to the terms of the Merger Agreement (whether such breach results from fraud, intentional misrepresentation or otherwise), that would relieve each of Parent and Merger Sub or MergerCo of its obligations under the Merger Agreement, except as provided in Section 2(b)(ii), which release or discharge Agreement shall likewise relieve the Guarantors may not assertof their obligations under this Guarantee. (cb) Each Guarantor hereby waives any covenants and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Guaranteed Party upon this Guarantee or acceptance of this Guarantee. Without expanding the obligations of each Guarantor hereunder, the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all dealings between Parent and/or either Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guarantee. Except as provided in Section 2(a), when pursuing any of its rights and remedies hereunder against the Guarantors, the Guaranteed Party shall be under no obligation to pursue (or elect among) such rights and remedies agrees that it may have against Parent, Merger Sub, any other Guarantor or any other Person for the Guaranteed Obligations or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue (or elect among) such other rights or remedies or to collect any payments from Parent, Merger Sub, or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of Parent, Merger Sub, or any such other Person or any right of offset, shall not relieve either Guarantor of any liability hereunderinstitute, and shall cause its subsidiaries and affiliates not impair or affect the rights and remediesto institute, whether express, implied or available as a matter of Law, of the Guaranteed Party, subject to the provisions of Section 2(b). (d) Each Guarantor irrevocably waives promptness, diligence, grace, acceptance hereof, presentment, demand, notice of non-performance, default, dishonor and protest and any other notice not provided for herein (except for notices to be provided to Parent and its counsel pursuant to the terms of the Merger Agreement). (e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event proceeding asserting that Parent becomes subject to a bankruptcy, insolvency, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect either Guarantor’s obligations hereunder. In the event that any payment to the Guaranteed Party in respect of any Guaranteed Obligation is rescinded or must otherwise be returned to Parent, Merger Sub, either Guarantor, or any other Person for any reason whatsoever, the Guarantors shall remain liable hereunder with respect to such Guaranteed Obligation as if such payment had not been made so long as this Guarantee has not terminated is illegal, invalid or unenforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors’ rights generally, and general equitable principles (whether considered in a proceeding in equity or at law). Notwithstanding anything to the contrary contained in this Guarantee, the Guaranteed Party hereby agrees that to the extent Parent and MergerCo are relieved of their Obligation under the Merger Agreement, each Guarantor shall be similarly relieved of its Obligation under this Guarantee.

Terms of Guarantee. (a) This Guarantee is an unconditional and continuing guarantee one of payment and performance, not of collection, and a separate or joint action or actions may be brought and prosecuted against each the Guarantor to enforce this the Guarantee, irrespective of whether any action is brought against Parent, Merger Sub Purchaser or any other Person or whether Parent, Merger Sub Purchaser or any other Person is joined in any such action or actions. Except in the case of the insolvency or bankruptcy; provided, or other similar proceedinghowever, of a Guarantor, that the Guaranteed Party shall expressly agrees and acknowledges that it may not release a Guarantor from seek to enforce the Guarantee in respect of any obligations under this Guarantee except Guaranteed Obligation if or to the extent that the Guaranteed Party offers to release the other Guarantor under this Guarantee were not then entitled under the same terms of the Purchase Agreement to seek to enforce such Guaranteed Obligation directly against the Purchaser. The Guarantor reserves the right to assert any and conditions and in all defenses which Purchaser may have under the same proportion. Notwithstanding anything to the contrary contained in this Guarantee Purchase Agreement or any other documentagreement entered into, under or in connection with, the obligations of each Guarantor under this Guarantee Contemplated Transactions with respect to pay monies as provided herein shall be several and not joint. All payments hereunder shall be made in lawful money of the United States, in immediately available fundsGuaranteed Obligations. (b) The liability of each the Guarantor under this Guarantee shall, to the fullest extent permitted under applicable lawLegal Requirements, be absolute, irrevocable absolute and unconditional, irrespective of: (i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreements dated as of the date hereof between each Guarantor and Parent, pursuant to which such Guarantors have agreed to make a certain equity contribution to Parent (the “Equity Commitment Letters”) or any other agreement or instrument referred to herein or therein; (ii) any release or discharge of any obligation of Parent or Merger Sub contained in the Merger Agreement resulting from any change in the limited partnership or corporate existence, as applicable, structure or ownership of Parent or Merger SubPurchaser, or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding of Purchaser or affecting Parent or Merger Sub, or any other Person now or hereafter interested in the transactions contemplated by the Merger Agreement, other than as and if expressly required by Section 2(a), or any of their respective assets; (iiiii) any valid amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance ofperformance, or any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligationof, any escrow arrangement or other security thereforof the Guaranteed Obligations, or any liability incurred directly or indirectly in respect thereof, or any amendment or waiver of or any consent to any departure from the terms of the Purchase Agreement or the Transaction Documents, in each case, made in accordance with the terms thereof; (iviii) subject to the last sentence of this section 2(b), the existence of any claim, set-off or other right that either the Guarantor may have at any time against Parent, Merger Sub or the Guaranteed PartyPurchaser, whether in connection with any the Guaranteed Obligation Obligations or otherwise; (v) the failure of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against Parent, Merger Sub or the Guarantors or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation, other than as and if expressly required by Section 2(a) (including, without limitation, in the event any Person becomes subject to a bankruptcy, reorganization, insolvency, liquidation or similar proceeding instituted by or against either Guarantor); (vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of any of the Guaranteed Obligations; or (viiiv) any lack or limitation of status or power, incapacity, disability or other act or omission that may legal limitation of Purchaser in respect of any manner or to any extent vary the risk of the Guarantors or otherwise operate as a discharge of either Guarantor as a matter of law or equity (other than as a result of payment of the Guaranteed Obligations in accordance with their terms); Notwithstanding any other provision of this Guarantee to the contrary, each Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by such Guarantor under this Guarantee, any claim, set-off, deduction, defense or release that Parent or Merger Sub asserts or has the right to assert against the Guaranteed Party subject to the terms of the Merger Agreement that would relieve each of Parent and Merger Sub of its obligations under the Merger Agreement, except as provided in Section 2(b)(ii), which release or discharge the Guarantors may not assertObligations. (c) Each Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Guaranteed Party upon this Guarantee or acceptance of this Guarantee. Without expanding the obligations of each Guarantor hereunder, the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all dealings between Parent and/or either Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guarantee. Except as provided in Section 2(a), when pursuing any of its rights and remedies hereunder against the Guarantors, the Guaranteed Party shall be under no obligation to pursue (or elect among) such rights and remedies it may have against Parent, Merger Sub, any other Guarantor or any other Person for the Guaranteed Obligations or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue (or elect among) such other rights or remedies or to collect any payments from Parent, Merger Sub, or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of Parent, Merger Sub, or any such other Person or any right of offset, shall not relieve either Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party, subject to the provisions of Section 2(b). (d) Each Guarantor irrevocably waives promptness, diligence, grace, acceptance hereof, presentment, demand, notice of non-performance, default, dishonor and protest and any other notice not provided for herein (except for notices to be provided to Parent and its counsel pursuant to the terms of the Merger Agreement). (e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that Parent becomes subject to a bankruptcy, insolvency, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect either Guarantor’s obligations hereunder. In the event that any payment to the Guaranteed Party in respect of any Guaranteed Obligation Obligations is rescinded or otherwise must otherwise be (and is) returned to Parent, Merger Sub, either Guarantor, or any other Person the Guarantor for any reason whatsoever, the Guarantors Guarantor shall remain liable hereunder with respect to such the Guaranteed Obligation Obligations as if such payment had not been made so long as made. (d) To the fullest extent permitted by applicable Legal Requirements, the Guarantor hereby expressly waives any and all rights or defenses related to this Guarantee has arising by reason of any applicable Legal Requirements, including those which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of acceptance of this Guarantee and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any Guaranteed Obligations and all other notices of any kind, all defenses which may be available by virtue of any 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 Contemplated Transactions, and all suretyship defenses generally (other than willful misconduct or fraud, and defenses to the payment of the Guaranteed Obligations that are available to Purchaser under the Purchase Agreement or any other agreement entered into, under or in connection with, the Contemplated Transactions, which defenses shall be available to the Guarantor with respect to the Guaranteed Obligations, or breach by the Guaranteed Party of this Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from consummation of the Contemplated Transactions and that the waivers set forth in this Guarantee are knowingly made in contemplation of such benefits. (e) The Guarantor hereby covenants and agrees that it shall not terminated institute, and shall cause its Affiliates to not institute, any Legal Proceeding or bring any other claim asserting that this Guarantee or any term or condition set forth herein is illegal, invalid or unenforceable in accordance with its terms.