WHOLE OR IN PART, OR OTHERWISE AFFECTED
BY (I) THE FAILURE OF CCR OR THE CURRENT EQUITYHOLDERS TO ASSERT ANY CLAIM OR
DEMAND OR TO ENFORCE ANY RIGHT OR REMEDY AGAINST ANY OF THE PURCHASERS, (II) ANY
CHANGE IN THE TIME, PLACE OR MANNER OF PAYMENT OF ANY OF THE OBLIGATIONS OR ANY
RESCISSION, WAIVER, COMPROMISE, CONSOLIDATION OR OTHER AMENDMENT OR MODIFICATION
OF ANY OF THE TERMS OF PROVISIONS OF THIS AGREEMENT, (III) ANY CHANGE IN THE
CORPORATE EXISTENCE, STRUCTURE OR OWNERSHIP OF ANY OF THE PURCHASERS, (IV) ANY
INSOLVENCY, BANKRUPTCY, REORGANIZATION OR OTHER SIMILAR PROCEEDING AFFECTING ANY
OF THE PURCHASERS, (V) ANY LACK OF VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT,
(VI) THE EXISTENCE OF ANY CLAIM, SET-OFF OR OTHER RIGHTS WHICH THE PARENT MAY
HAVE AT ANY TIME AGAINST CCR, THE CURRENT EQUITYHOLDERS OR ANY OF THE
PURCHASERS, WHETHER IN CONNECTION WITH THE OBLIGATIONS OR OTHERWISE, AND
(VII) ANY OTHER ACT OR OMISSION WHICH MIGHT IN ANY MANNER OR TO ANY EXTENT VARY
THE RISK OF THE PARENT OR OTHERWISE OPERATE AS A RELEASE OR DISCHARGE OF THE
PARENT, ALL OF WHICH MAY BE DONE WITHOUT NOTICE TO THE PARENT.
NEITHER CCR NOR
THE CURRENT EQUITYHOLDERS SHALL BE BOUND OR OBLIGED TO EXHAUST THEIR RECOURSE
AGAINST THE PURCHASERS OR PURSUE ANY OTHER REMEDY WHATSOEVER BEFORE BEING
ENTITLED TO DEMAND THE SATISFACTION OF THE OBLIGATIONS BY THE PARENT HEREUNDER.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARENT HEREBY EXPRESSLY WAIVES ANY
AND ALL RIGHTS OR DEFENSES ARISING BY REASON OF ANY LAW WHICH WOULD OTHERWISE
REQUIRE ANY ELECTION OF REMEDIES BY CCR OR THE CURRENT EQUITYHOLDERS.
THE
PARENT ACKNOWLEDGES THAT IT WILL RECEIVE SUBSTANTIALLY DIRECT AND INDIRECT
BENEFITS FROM THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THAT THE
WAIVERS SET FORTH HEREIN ARE KNOWINGLY MADE IN CONTEMPLATION OF SUCH BENEFITS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE PARENT'S OBLIGATIONS UNDER
THIS GUARANTEE SHALL BE SUBJECT TO ANY AND ALL CLAIMS, DEFENSES, SETOFFS OR
OTHER RIGHTS OF OR AVAILABLE TO THE PURCHASERS.
(C)
THIS GUARANTEE SHALL REMAIN IN FULL FORCE AND EFFECT AND SHALL BE
BINDING ON THE PARENT, ITS SUCCESSORS AND ASSIGNS UNTIL ALL OF THE OBLIGATIONS
HAVE BEEN INDEFEASIBLY PAID, OBSERVED, PERFORMED OR SATISFIED IN FULL.
18
7.4.
Use of Proceeds.
Upon the distribution to CCR of the Preferred
Purchase Price at the Closing, subject to and in accordance with this Agreement
and the Escrow Agreement, CCR agrees to use the Preferred Purchase Price
promptly to make payments in respect of (i) the Companies' debt facilities in
partial repayment of outstanding Indebtedness of the Companies as of the Closing
Date (which partial repayment shall be no less than $225 million), (ii) equity
cures, if necessary, pursuant to the Companies' debt facilities for the period
ended December 31, 2008 and period ending March 31, 2009, (iii) fees and
expenses and (iv) other general corporate purposes as CCR deems appropriate,
including the funding of distributions permitted under the Companies' debt
facilities.
ARTICLE 8
Conditions to Closing
8.1.
Conditions to