MST Attachment D - Form of Parent Guaranty.pdf

MST Attachment D: Form of Parent Guarantee Page 1 of 7

Mainframe Services

MST Attachment D

Form of Parent Guaranty

RFP 3525R03

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FORM OF PARENT GUARANTY

GUARANTY OF OBLIGATIONS

This guaranty of obligations ("Guaranty") is made and entered into as of [______], and is executed and delivered by [_________], a [______] corporation with its primary offices located at ___________________ (the "Guarantor"), and the Pennsylvania Department of Transportation (“PennDOT”), with its primary offices located at ______________.

[Service Provider] (the "Subsidiary") and PennDOT have entered or are entering into contract, contract number [_____], , (as may be amended, restated, supplemented, or otherwise modified from time to time) with respect to certain services to be provided by Subsidiary to PennDOT.

The Guarantor is the parent, directly or indirectly, of Subsidiary.

The Guarantor's execution and delivery of this Guaranty is a condition to PennDOT entering into the Agreement. The Guarantor will receive direct and indirect benefits from PennDOT entering into and performing its obligations under the Agreement and, accordingly, the Guarantor is willing to guarantee all of the obligations of Subsidiary to PennDOT under the Agreement on the terms of this Guaranty.

The parties, intending to be legally bound, agrees as follows:

Section 1. Guaranty. The Guarantor absolutely, irrevocably, and unconditionally guaranties the due and punctual performance when due of all obligations of Subsidiary (including any obligation for the payment of money) under contract no. ________ (collectively referred to as the "Guarantied Obligations").

Section 2. Guaranty of Payment and Not of Collection. This Guaranty is a guaranty of performance and payment, and not of collection, and an obligation and debt of the Guarantor for its own account. PennDOT may resort to the Guarantor for the performance of any of the Guarantied Obligations only if, in PennDOT's reasonable judgment, efforts to obtain performance of the Guarantied Obligations against Subsidiary are not likely to result in the full and timely performance of the Guarantied Obligations. Accordingly, except as provided in the preceding sentence, PennDOT will not be obligated or required before enforcing this Guaranty against the Guarantor: (a) to pursue any right or remedy PennDOT may have against Subsidiary, or any other Person or commence any suit or other proceeding against Subsidiary or any other Person in any court or other tribunal; or (b) to make any claim in a liquidation or bankruptcy of Subsidiary or any other Person. As used in this Section, "Person" means an individual, corporation, limited liability company, partnership, trust, association, joint venture, unincorporated organization or entity of any kind or nature, or a governmental authority.

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Section 3. Guaranty Absolute. The Guarantor guarantees that the Guarantied Obligations will be performed or paid, as applicable, strictly in accordance with the terms of contract no.

________ and any other documents evidencing the same. The Guarantor waives any right that it might have to challenge the amount or validity of any amounts (a) acknowledged by the Subsidiary to be due under contract no. ________ or (b) determined to be due under contract no. ________ pursuant to the dispute resolution procedures, mediation procedures, and arbitration proceedings or otherwise pursuant to or in connection with contract no. ________. Subject to Section 1, the liability of the Guarantor under this Guaranty will be absolute and unconditional in accordance with its terms and will remain in full force without regard to, and may not be released, suspended, discharged, terminated or otherwise affected by, any circumstance or occurrence whatsoever (other than full and timely performance or indefeasible payment in full, as applicable).

Section 4. Action with Respect to Guarantied Obligations. PennDOT, at any time and from time to time, without the consent of, or notice to, the Guarantor, and without discharging the Guarantor from its obligations, may, with any required consent of the Subsidiary: (a) amend, modify, alter, or supplement the terms of any of the Guarantied Obligations, including extending or shortening the time of payment of any of the Guarantied Obligations; (b) amend, modify, alter, or supplement the contract no. ________ t; (c) release any other person liable in any manner for the payment or collection of the Guarantied Obligations; (d) exercise, or refrain from exercising, any rights against Subsidiary, or any other Person, subject to Section 2.

Section 5. Representations and Warranties. The Guarantor represents and warrants to PennDOT as follows:

(a) Organization; Power; Qualification. The Guarantor is a [_______] corporation, duly incorporated and validly existing under the jurisdiction of its incorporation, and has the power and authority to carry on its business.

(b) Authorization. The Guarantor has the right and power, and has taken all necessary action to authorize it, to execute, deliver, and perform this Guaranty in accordance with its terms.

This Guaranty has been duly executed and delivered by the duly authorized officers of the Guarantor and is a legal, valid, and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms except as the same may be limited by bankruptcy, insolvency, and other similar laws affecting the rights of creditors generally and the availability of equitable remedies for the enforcement of certain obligations.

(c) Compliance with Laws, etc. The execution, delivery and performance of this Guaranty in accordance with its terms and guaranties do not and will not, by the passage of time, the giving of notice, or both: (a) require any governmental approval or violate any applicable law relating to the Guarantor; (b) conflict with, result in a breach of or constitute a default under the organizational documents of the Guarantor, or any indenture, agreement, or other instrument to which the Guarantor is a party or by which it or any of its properties may be bound; or (iii) result in or require the creation or imposition of any lien upon or with respect to any property now owned or acquired by the Guarantor.

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Section 6. Waiver. Except as otherwise provided, the Guarantor, to the fullest extent permitted by applicable law, waives notice of acceptance or any presentment, demand, protest, or notice of any kind, and any other act or thing, or omission or delay to do any other act or thing, which in any manner or to any extent might vary the risk of the Guarantor or which otherwise might operate to discharge the Guarantor from its obligations and waives all rights the Guarantor may now or in the future have under any statute relating to sureties or otherwise related to the foregoing waiver. Except as otherwise provided, any right which at any time the Guarantor has under the existing or future laws to require that recourse be had to the assets of any other person before any claim is enforced against such Guarantor in respect of the obligations assumed by the Guarantor is abandoned and waived. If, at any time, PennDOT sues the Guarantor in respect of this Guaranty and the Subsidiary is not sued also, the Guarantor may not claim that the Subsidiary must be made a party to the proceedings. The Guarantor shall be bound by this Guaranty whether or not it is made a party to legal proceedings for the recovery of any amount due or owing to PennDOT by the Subsidiary and whether the formalities required by any law whether existing now or in the future in regard to the rights or obligations of sureties may or may not have been observed.

Section 7. Reinstatement of Guarantied Obligations. If claim is ever made on PennDOT for repayment or recovery of any validly owing amount or amounts received in payment or on account of any of the Guarantied Obligations, and PennDOT repays all or part of that amount by reason of (a) any judgment, decree, or order of any court or administrative body of competent jurisdiction, or (b) any settlement or compromise of any claim effected by PennDOT with any claimant, then and in the event, the Guarantor agrees that any judgment, decree, order, settlement or compromise will be binding on it, notwithstanding any revocation or the cancellation of contract

no. ________, and the Guarantor shall be and remain liable to PennDOT for the validly owing amounts so repaid or recovered to the same extent as if that amount had never originally been paid by PennDOT.

Section 8. Payments Free and Clear. Except as otherwise provided or by law, all sums payable by the Guarantor must be paid in full, without set-off or counterclaim or any deduction or withholding whatsoever.

Section 9. Information. The Guarantor assumes all responsibility for being and keeping itself informed of the financial condition of Subsidiary, and of all other circumstances bearing upon the risk of non-performance or nonpayment of any of the Guarantied Obligations and the nature, scope, and extent of the risks that the Guarantor assumes and incurs. PennDOT will not have any duty whatsoever to advise the Guarantor of information regarding those circumstances or risks.

Section 10. Governing Law. This Guaranty will be governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania and is included in contract no.

Section 11. Jurisdiction. Any legal action, suit, or proceeding brought by any party to this Guaranty must be brought solely and exclusively in the Courts of the Commonwealth of Pennsylvania and the Federal Courts of the Middle District of Pennsylvania, as applicable, and

MST Attachment D: Form of Parent Guarantee Page 5 of 7 irrevocably accepts and submits to the sole and exclusive jurisdiction of each of these courts generally and unconditionally with respect to any action, suit, or proceeding brought by it or against it by the other party.

Section 12. Waiver of Remedies. PennDOT may elect not to enforce its rights and remedies under this Guaranty in the event of a breach by the other party of any terms of this Guaranty. In any event, failure by PennDOT to enforce its rights and remedies under this Guaranty may not be construed as a waiver of any subsequent breach of the same or any other term of this Guaranty.

Section 13. Termination. This Guaranty will remain in full force until three years following the termination or cancellation of contract no. ________ .

Section 14. Successors and Assigns. Each reference in this Guaranty to PennDOT will be deemed to include PennDOT's respective successors and assigns (including any holder of the Guarantied Obligations) (and PennDOT may assign contract no. ________ in whole or in part to the extent permitted by contract no. ________, and in the case of one or more partial assignments, any reference to PennDOT must include both PennDOT and those assignees with respect to the part of contract no. ________ so assigned) in whose favor the provisions of this Guaranty also will inure, and each reference to the Guarantor will be deemed to include the Guarantor's successors and assigns, upon whom this Guaranty also will be binding. The Guarantor may not assign or transfer its obligations to any Person.

Section 15. Amendments. This Guaranty may not be amended except in writing signed by PennDOT and the Guarantor.

Section 16. Payments. All payments to be made by the Guarantor pursuant to this Guaranty must be made in U.S. Dollars, in immediately available funds to PennDOT, not later than 2:00 p.m. within 10 days of the date of demand.

Section 17. Notices. All notices and reports required under this Guaranty must be in writing and given to the parties by regular mail (including registered or certified), e-mail, or delivery in person:

If to the Pennsylvania Department of Transportation (PennDOT):

Entity [Address] Attention: [___________]

With a copy to:

Attention: [________]

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If to Guarantor:

[Address] Attention: [________]

With a copy to:

[Subsidiary Address] Attention: [_________]

Either party may update this contact information without the need for formal amendment by providing the other party notice.

Section 18. Severability. The provisions of this Guaranty are severable. If any provision of this Guaranty is held to be unenforceable by an authority with proper jurisdiction in the matter, that provision is severed, and the remainder of this Guaranty will remain binding upon the parties.

[signatures follow]

MST Attachment D: Form of Parent Guarantee Page 7 of 7 he parties, through their authorized representatives, have signed this Guaranty below.

Witness: Guarantor:

Signature Date Signature Date

Printed Name Printed Name

Title Title

If a corporation, the Chairman, President, Vice-President, Senior Vice-President, Executive Vice-President, Assistant Vice-President, Chief Executive Officer or Chief Operating Officer must sign; if a sole proprietor, then the owner must sign; if a general or limited partnership, a general partner must sign; if a limited liability company, then a member must sign, unless it is a managed by a manager, then the manager must sign; otherwise a resolution indicating authority to bind the corporation must be attached to this contract.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF TRANSPORTATION

Agency Head or Designee

APPROVED AS TO FORM AND LEGALITY:

Office of Chief Counsel Office of General Counsel

Office of Attorney General

APPROVED:

Comptroller