|
Exhibit
10.29
AMENDED AND RESTATED GUARANTY
AGREEMENT
dated as of July 25,
2007
by and among
certain Subsidiaries of
BLACKBAUD, INC.,
as Guarantors,
in favor of
WACHOVIA BANK, NATIONAL
ASSOCIATION,
as Administrative
Agent
TABLE OF CONTENTS
|
|
|
|
|
| ARTICLE I DEFINED TERMS |
|
2 |
| SECTION 1.1 |
|
Definitions |
|
2 |
|
|
| ARTICLE II GUARANTY |
|
3 |
| SECTION
2.1 |
|
Guaranty |
|
3 |
| SECTION
2.2 |
|
Bankruptcy Limitations on each Guarantor |
|
4 |
| SECTION
2.3 |
|
Agreements for Contribution |
|
4 |
| SECTION
2.4 |
|
Nature
of Guaranty. |
|
5 |
| SECTION
2.5 |
|
Waivers |
|
6 |
| SECTION
2.6 |
|
Modification of Loan Documents, etc |
|
7 |
| SECTION
2.7 |
|
Demand
by the Administrative Agent |
|
7 |
| SECTION
2.8 |
|
Remedies |
|
8 |
| SECTION
2.9 |
|
Benefits of Guaranty |
|
8 |
| SECTION 2.10 |
|
Termination; Reinstatement |
|
8 |
| SECTION
2.11 |
|
Payments |
|
8 |
|
|
| ARTICLE III REPRESENTATIONS AND WARRANTIES |
|
9 |
| SECTION
3.1 |
|
Existence |
|
9 |
| SECTION
3.2 |
|
Authorization of Agreement; Enforceability |
|
9 |
| SECTION
3.3 |
|
No
Conflict; Consents |
|
9 |
| SECTION
3.4 |
|
Litigation |
|
9 |
| SECTION
3.5 |
|
Title
to Assets |
|
9 |
| SECTION
3.6 |
|
Solvency |
|
10 |
| SECTION
3.7 |
|
Compliance with the Credit Agreement |
|
10 |
|
|
| ARTICLE IV MISCELLANEOUS |
|
10 |
| SECTION
4.1 |
|
Amendments, Waivers and Consents |
|
10 |
| SECTION
4.2 |
|
Notices |
|
10 |
| SECTION
4.3 |
|
Enforcement Expenses, Indemnification |
|
10 |
| SECTION
4.4 |
|
Governing Law |
|
11 |
| SECTION
4.5 |
|
Jurisdiction and Venue |
|
11 |
| SECTION
4.6 |
|
Binding Arbitration; Waiver of Jury Trial |
|
11 |
| SECTION
4.7 |
|
Injunctive Relief, Punitive Damages |
|
12 |
| SECTION
4.8 |
|
No
Waiver by Course of Conduct, Cumulative Remedies |
|
12 |
| SECTION
4.10 |
|
Severability |
|
13 |
| SECTION
4.11 |
|
Titles
and Captions |
|
13 |
| SECTION
4.12 |
|
Counterparts |
|
13 |
| SECTION
4.13 |
|
Set-Off |
|
13 |
| SECTION 4.14. |
|
Integration |
|
14 |
| SECTION
4.15. |
|
Acknowledgements |
|
14 |
| SECTION
4.16. |
|
Releases |
|
14 |
| SECTION
4.17 |
|
Additional Guarantors |
|
14 |
| SECTION
4.18 |
|
Powers
Coupled with an Interest |
|
14 |
AMENDED AND RESTATED GUARANTY
AGREEMENT, dated as of July 25, 2007, made by certain
Subsidiaries (collectively, the “ Guarantors ”,
each, a “ Guarantor ”) of BLACKBAUD, INC., a
Delaware corporation (the “ Borrower ”), in
favor of WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative
Agent (in such capacity, the “ Administrative Agent
”) for the ratable benefit itself and the financial
institutions (the “ Lenders ”) from time to time
parties to the Amended and Restated Credit Agreement, dated of even
date herewith (as amended, restated, supplemented or otherwise
modified, the “ Credit Agreement ”), by and
among the Borrower, the Lenders and the Administrative
Agent.
STATEMENT OF
PURPOSE
Pursuant to the terms of the
Credit Agreement, the Lenders have agreed to make Extensions of
Credit to the Borrower upon the terms and subject to the conditions
set forth therein.
The Borrower and the
Guarantors, though separate legal entities, comprise one integrated
financial enterprise, and all Extensions of Credit to the Borrower
will inure, directly or indirectly, to the benefit of each of the
Guarantors.
It is a condition precedent
to the obligation of the Lenders to make their respective
Extensions of Credit to the Borrower under the Credit Agreement
that the Guarantors shall have executed and delivered this Guaranty
to the Administrative Agent, for the ratable benefit of itself and
the Lenders.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, and to induce the
Administrative Agent and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective
Extensions of Credit to the Borrower thereunder, each Guarantor
hereby agrees with the Administrative Agent, for the ratable
benefit of itself and the Lenders, as follows:
ARTICLE I
DEFINED
TERMS
SECTION 1.1
Definitions . The following terms when used in this Guaranty
shall have the meanings assigned to them below:
“ Additional
Guarantor ” means each Subsidiary of the Borrower which
hereafter becomes a Guarantor pursuant to Section 4.17
hereof and Section 8.11 of the Credit
Agreement.
“ Applicable
Insolvency Laws ” means all Applicable Laws governing
bankruptcy, reorganization, arrangement, adjustment of debts,
relief of debtors, dissolution, insolvency, fraudulent transfers or
conveyances or other similar laws (including, without limitation,
11 U.S.C. Sections 544, 547, 548 and 550 and other
“avoidance” provisions of Title 11 of the United States
Code, as amended or supplemented).
“ Guaranteed
Obligations ” has the meaning set forth in
Section 2.1 .
“ Guaranty
” means this Amended and Restated Guaranty Agreement, as
amended, restated, supplemented or otherwise modified.
SECTION 1.2 Other
Definitional Provisions . Capitalized terms used and not
otherwise defined in this Guaranty including the preambles and
recitals hereof shall have the meanings ascribed to them in the
Credit Agreement. In the event of a conflict between
2
capitalized terms defined herein and in
the Credit Agreement, the Credit Agreement shall control. The words
“hereof,” “herein”, “hereto”
and “hereunder” and words of similar import when used
in this Guaranty shall refer to this Guaranty as a whole and not to
any particular provision of this Guaranty, and Section references
are to this Guaranty unless otherwise specified. The meanings given
to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
ARTICLE II
GUARANTY
SECTION 2.1 Guaranty .
Each Guarantor hereby, jointly and severally with the other
Guarantors, unconditionally guarantees to the Administrative Agent
for the ratable benefit of itself and the Lenders, and their
respective permitted successors, endorsees, transferees and
assigns, the prompt payment and performance of all Obligations of
the Borrower, whether primary or secondary (whether by way of
endorsement or otherwise), whether now existing or hereafter
arising, whether or not from time to time reduced or extinguished
(except by payment thereof) or hereafter increased or incurred,
whether or not recovery may be or hereafter becomes barred by the
statute of limitations, whether enforceable or unenforceable as
against the Borrower, whether or not discharged, stayed or
otherwise affected by any Applicable Insolvency Law or proceeding
thereunder, whether created directly with the Administrative Agent
or any Lender or acquired by the Administrative Agent or any Lender
through assignment, endorsement or otherwise, whether matured or
unmatured, whether joint or several, as and when the same become
due and payable (whether at maturity or earlier, by reason of
acceleration, mandatory repayment or otherwise), in accordance with
the terms of any such instruments evidencing any such obligations,
including all renewals, extensions or modifications thereof (all
Obligations of the Borrower, including all of the foregoing being
hereafter collectively referred to as the “ Guaranteed
Obligations ”).
3
SECTION 2.2 Bankruptcy
Limitations on each Guarantor . Notwithstanding anything to the
contrary contained in Section 2.1 , it is the intention
of each Guarantor, the Administrative Agent and the Lenders that,
in any proceeding involving the bankruptcy, reorganization,
arrangement, adjustment of debts, relief of debtors, dissolution or
insolvency or any similar proceeding with respect to any Guarantor
or its assets, the amount of such Guarantor’s obligations
with respect to the Guaranteed Obligations shall be equal to, but
not in excess of, the maximum amount thereof not subject to
avoidance or recovery by operation of Applicable Insolvency Laws
after giving effect to Section 2.3 . To that end, but
only in the event and to the extent that after giving effect to
Section 2.3 such Guarantor’s obligations with
respect to the Guaranteed Obligations or any payment made pursuant
to such Guaranteed Obligations would, but for the operation of the
first sentence of this Section 2.2 , be subject to
avoidance or recovery in any such proceeding under Applicable
Insolvency Laws after giving effect to Section 2.3 ,
the amount of each Guarantor’s obligations with respect to
the Guaranteed Obligations shall be limited to the largest amount
which, after giving effect thereto, would not, under Applicable
Insolvency Laws, render such Guarantor’s obligations with
respect to the Guaranteed Obligations unenforceable or avoidable or
otherwise subject to recovery under Applicable Insolvency Laws. To
the extent any payment actually made pursuant to the Guaranteed
Obligations exceeds the limitation of the first sentence of this
Section 2.2 and is otherwise subject to avoidance and
recovery in any such proceeding under Applicable Insolvency Laws,
the amount subject to avoidance shall in all events be limited to
the amount by which such actual payment exceeds such limitation and
the Guaranteed Obligations as limited by the first sentence of this
Section 2.2 shall in all events remain in full force
and effect and be fully enforceable against each Guarantor. The
first sentence of this Section 2.2 is intended solely
to preserve the rights of the Administrative Agent hereunder
against each Guarantor in such proceeding to the maximum extent
permitted by Applicable Insolvency Laws and neither such Guarantor,
any Borrower, any other Guarantor nor any other Person shall have
any right or claim under such sentence that would not otherwise be
available under Applicable Insolvency Laws in such
proceeding.
SECTION 2.3 Agreements for
Contribution .
(a) To the extent any
Guarantor is required, by reason of its obligations hereunder, to
pay to the Administrative Agent or any Lender an amount greater
than the amount of value (as determined in accordance with
Applicable Insolvency Laws) actually made available to or for the
benefit of such Guarantor on account of the Credit Agreement, this
Guaranty or any other Loan Document, such Guarantor shall have an
enforceable right of contribution against the Borrower and the
remaining Guarantors, and the Borrower and the remaining Guarantors
shall be jointly and severally liable for repayment of the full
amount of such excess payment. Subject only to the subordination
provided in Section 2.3(d) , such Guarantor further
shall be subrogated to any and all rights of the Lenders against
the Borrower and the remaining Guarantors to the extent of such
excess payment.
(b) To the extent that any
Guarantor would, but for the operation of this
Section 2.3 and by reason of its obligations hereunder
or its obligations to other Guarantors under this
Section 2.3 , be rendered insolvent for any purpose
under Applicable Insolvency Laws, each of the Guarantors hereby
agrees to indemnify such Guarantor and commits to make a
contribution to such Guarantor’s capital in an amount at
least equal to the amount necessary to prevent such Guarantor from
having been rendered insolvent by reason of the incurrence of any
such obligations.
(c) To the extent that any
Guarantor would, but for the operation of this
Section 2.3 , be rendered insolvent under any
Applicable Insolvency Law by reason of its incurring of obligations
to any other Guarantor under the foregoing Sections 2.3(a)
and (b) , such Guarantor shall, in turn, have rights of
contribution and indemnity, to the full extent provided in the
foregoing Sections 2.3(a) and (b) , against the
Borrower and the remaining Guarantors, such that all obligations of
all of the Guarantors hereunder and under this
Section 2.3 shall be allocated in a manner such that no
Guarantor shall be rendered insolvent for any purpose under
Applicable Insolvency Law by reason of its incurrence of such
obligations.
4
(d) Notwithstanding any
payment or payments by any of the Guarantors hereunder, or any
set-off or application of funds of any of the Guarantors by the
Administrative Agent or any Lender, or the receipt of any amounts
by the Administrative Agent or any Lender with respect to any of
the Guaranteed Obligations, none of the Guarantors shall be
entitled to be subrogated to any of the rights of the
Administrative Agent or any Lender against the Borrower or the
other Guarantors or against any collateral security held by the
Administrative Agent or any Lender for the payment of the
Guaranteed Obligations nor shall any of the Guarantors seek any
reimbursement from the Borrower or any of the other Guarantors in
respect of payments made by such Guarantor in connection with the
Guaranteed Obligations, until all amounts owing to the
Administrative Agent and the Lenders on account of the Guaranteed
Obligations are paid in full and the Commitments are terminated. If
any amount shall be paid to any Guarantor on account of such
subrogation rights at any time when all of the Guaranteed
Obligations shall not have been paid in full, such amount shall be
held by such Guarantor in trust for the Administrative Agent,
segregated from other funds of such Guarantor, and shall, forthwith
upon receipt by such Guarantor, be turned over to the
Administrative Agent in the exact form received by such Guarantor
(duly endorsed by such Guarantor to the Administrative Agent, if
required) to be applied against the Guaranteed Obligations, whether
matured or unmatured, in such order as set forth in the Credit
Agreement.
SECTION 2.4 Nature of
Guaranty .
(a) Each Guarantor agrees
that this Guaranty is a continuing, unconditional guaranty of
payment and performance and not of collection, and that its
obligations under this Guaranty shall be primary, absolute and
unconditional, irrespective of, and unaffected by:
(i) the genuineness,
validity, regularity, enforceability or any future amendment of, or
change in, the Credit Agreement or any other Loan Document or any
other agreement, document or instrument to which the Borrower, any
Guarantor or any of their respective Subsidiaries or Affiliates is
or may become a party;
(ii) the absence of any
action to enforce this Guaranty, the Credit Agreement or any other
Loan Document or the waiver or consent by the Administrative Agent
or any Lender with respect to any of the provisions of this
Guaranty, the Credit Agreement or any other Loan
Document;
(iii) the existence, value or
condition of, or failure to perfect its Lien against, any security
for or other guaranty of the Guaranteed Obligations or any action,
or the absence of any action, by the Administrative Agent or any
Lender in respect of such security or guaranty (including, without
limitation, the release of any such security or
guaranty);
(iv) any structural change
in, restructuring of or similar change of the Borrower, any
Guarantor or any of their respective Subsidiaries; or
(v) any other action or
circumstances which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor;
it being agreed by each Guarantor that,
subject to the first sentence of Section 2.2 , its
obligations under this Guaranty shall not be discharged until the
final indefeasible payment and performance, in full, of the
Guaranteed Obligations and the termination of the Commitments;
provided that a Guarantor may be released from the
Guaranteed Obligations pursuant to Section 4.16 of this
Guaranty.
5
(b) Each Guarantor
represents, warrants and agrees that its obligations under this
Guaranty are not and shall not be subject to any counterclaims,
offsets or defenses of any kind against the Administrative Agent,
the Lenders or the Borrower whether now existing or which may arise
in the future.
(c) Each Guarantor hereby
agrees and acknowledges that the Guaranteed Obligations, and any of
them, shall conclusively be deemed to have been created, contracted
or incurred, or renewed, extended, amended or waived, in reliance
upon this Guaranty, and all dealings between the Borrower and any
Guarantor, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, likewise shall be conclusively presumed
to have been had or consummated in reliance upon this
Guaranty.
SECTION 2.5 Waivers .
To the extent permitted by law, each Guarantor expressly waives all
of the following rights and defenses (and agrees not to take
advantage of or assert any such right or defense):
(a) any rights it may now or
in the future have under any statute, or at law or in equity, or
otherwise, to compel the Administrative Agent or any Lender to
proceed in respect of the Obligations against the Borrower or any
other Person or against any security for or other guaranty of the
payment and performance of the Guaranteed Obligations before
proceeding against, or as a condition to proceeding against, such
Guarantor;
(b) any defense based upon
the failure of the Administrative Agent or any Lender to commence
an action in respect of the Guaranteed Obligations against the
Borrower, any Guarantor or any other Person or any security for the
payment and performance of the Guaranteed Obligations;
(c) any right to insist upon,
plead or in any manner whatever claim or take the benefit or
advantage of, any appraisal, valuation, stay, extension,
marshalling of assets or redemption laws, or exemption, whether now
or at any time hereafter in force, which may delay, prevent or
otherwise affect the performance by such Guarantor of its
obligations under, or the enforcement by the Administrative Agent
or the Lenders of this Guaranty;
(d) any right of diligence,
presentment, demand, protest and notice (except as specifically
required herein) of whatever kind or nature with respect to any of
the Guaranteed Obligations and waives, to the extent permitted by
Applicable Laws, the benefit of all provisions of law which are or
might be in conflict with the terms of this Guaranty;
and
(e) any and all right to
notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon, or acceptance of, this
Guaranty.
Each Guarantor agrees that
any notice or directive given at any time to the Administrative
Agent or any Lender which is inconsistent with any of the foregoing
waivers shall be null and void and may be ignored by the
Administrative Agent or such Lender, and, in addition, may not be
pleaded or introduced as evidence in any litigation relating to
this Guaranty for the reason that such pleading or introduction
would be at variance with the written terms of this Guaranty,
unless the Administrative Agent and the Required Lenders have
specifically agreed otherwise in writing. The foregoing waivers are
of the essence of the transaction contemplated by the Credit
Agreement and the other Loan Documents and, but for this Guaranty
and such waivers, the Administrative Agent and Lenders would
decline to enter into the Credit Agreement and the other Loan
Documents.
6
SECTION 2.6 Modification
of Loan Documents, etc . Neither the Administrative Agent nor
any Lender shall incur any liability to any Guarantor as a result
of any of the following, and none of the following shall impair or
release this Guaranty or any of the obligations of any Guarantor
under this Guaranty:
(a) any change or extension
of the manner, place or terms of payment of, or renewal or
alteration of all or any portion of, the Guaranteed
Obligations;
(b) any action under or in
respect of the Credit Agreement or the other Loan Documents in the
exercise of any remedy, power or privilege contained therein or
available to any of them at law, in equity or otherwise, or waiver
or refrain from exercising any such remedies, powers or
privileges;
|