Exhibit 10.2
CONTINUING
GUARANTY
by
ELANDIA INTERNATIONAL
INC.
as Guarantor
ANZ AMERIKA SAMOA
BANK
as Agent for
ANZ AMERIKA SAMOA BANK and ANZ
FINANCE AMERICAN SAMOA, INC
Lender
June 8, 2009
TABLE OF
CONTENTS
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ARTICLE 1
DEFINITIONS AND INTERPRETIVE PROVISIONS
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1
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Section 1.1
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Certain Defined
Terms
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1
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Section 1.2
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Interpretive
Provisions
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5
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Section 1.3
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Accounting
Terms
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5
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ARTICLE 2
GUARANTY
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5
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Section 2.1
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Guaranteed
Obligations
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5
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Section 2.2
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Guarantors’ Consent
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6
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Section 2.3
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Guarantor’s Waiver
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6
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Section 2.4
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Guaranty
Survives Foreclosure
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7
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Section 2.5
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Guarantors’ Knowledge of Borrower’s
Economic Conditions
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7
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Section 2.6
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Unconditional
Guaranty
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8
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Section 2.7
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Continuing
Guaranty
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8
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Section 2.8
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No
Reliance
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8
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Section 2.9
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Borrower
Indebtedness to Guarantor
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9
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Section 2.10
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Limitations on
Guarantor’s Rights
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9
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
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10
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Section 3.1
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Existence and
Power
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10
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Section 3.2
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Authorization
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10
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Section 3.3
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Government
Approvals, Etc
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10
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Section 3.4
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Binding
Obligations, Etc
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10
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Section 3.5
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Litigation
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10
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Section 3.6
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Financial
Condition.
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11
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(a) Pro forma Financial
Information
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11
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(b) Financial
Statements
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11
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Section 3.7
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Solvency
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11
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Section 3.8
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Title and
Liens
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11
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Section 3.9
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Taxes
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11
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Section 3.10
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Other
Agreements
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12
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Section 3.11
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Subsidiaries
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12
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Section 3.12
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Representations
as a Whole
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12
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ARTICLE 4
AFFIRMATIVE COVENANTS
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12
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Section 4.1
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Preservation of
Corporate Existence, Etc
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12
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Section 4.2
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Visitation
Rights
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12
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Section 4.3
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Keeping of
Books and Records
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13
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Section 4.4
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Maintenance of
Property, Etc
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13
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Section 4.5
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Compliance With
Laws, Etc
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13
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Section 4.6
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Other
Obligations
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13
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Section 4.7
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Insurance
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14
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i
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Section 4.8
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Financial
Information
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14
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(a) Annual Guarantor
Financial Statements
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14
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(b) Quarterly Guarantor
Financial Statements
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14
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(c) Other
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14
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Section 4.9
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Reserved.
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14
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Section 4.10
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Notification
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14
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Section 4.11
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Additional
Payments; Additional Acts
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15
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ARTICLE 5
NEGATIVE COVENANTS
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15
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Section 5.1
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Dividends,
Management Fees, Etc
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16
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Section 5.2
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Transactions
With Affiliates
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16
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Section
5.3
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Consolidations
and Mergers
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16
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Section
5.4
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Dispositions of
Assets
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17
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Section
5.5
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Indebtedness
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17
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Section
5.6
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Guaranties,
Etc
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17
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Section
5.7
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Liens
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17
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Section
5.8
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Investments
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18
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Section 5.9
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Operations
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18
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Section 5.10
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Securities
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18
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Section
5.11
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Accounting
Change
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18
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ARTICLE 6
MISCELLANEOUS
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18
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Section 6.1
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No Waiver;
Cumulative Remedies
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18
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Section 6.2
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Expenses;
Default Interest
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18
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Section 6.3
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Notices
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19
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Section 6.4
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Assignment
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19
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Section 6.5
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Governing
Law
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20
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Section 6.6
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Waiver of Right
to Trial by Jury
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20
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Section 6.7
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Consent to
Jurisdiction
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20
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Section 6.8
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Entire
Agreement; Amendment, Etc
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20
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Section 6.9
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USA Patriot Act
Notice
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20
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Section 6.10
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Set-Off
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20
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Section 6.11
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Judgment
Currency
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21
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Section 6.12
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Executed in
Counterparts
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21
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Section 6.13
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Severability
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ii
CONTINUING
GUARANTY
THIS CONTINUING GUARANTY (the
“ Guaranty ”) is made as of the 8th day of June,
2009, by ELANDIA INTERNATIONAL INC., a Delaware corporation
(“ Guarantor ”), for the benefit of ANZ AMERIKA
SAMOA BANK, an American Samoa corporation as agent
(“Agent”) for ANZ AMERIKA SAMOA BANK and ANZ FINANCE
AMERICAN SAMOA, INC., an American Samoa corporation (individually
and collectively, the “Lender”).
RECITALS
A. American Samoa Hawaii Cable, LLC,
a Delaware limited liability company and its wholly-owned
subsidiary Samoa American Samoa Cable, LLC, a Delaware limited
liability company (individually and collectively, the “
Borrower ”), Agent and the Lender are parties to that
certain Loan Agreement dated as of June 8, 2009 (as amended,
restated, supplemented or otherwise modified, the “ Loan
Agreement ”), pursuant to which Lender has agreed to make
loans to the Borrower in an aggregate maximum principal amount not
to exceed Sixteen Million Six Hundred Seventy-two Dollars
($16,672,000).
B. It is a material condition
precedent to the Lender’s obligation to make the loans to the
Borrower under the Loan Agreement that the Guarantor enter into
this Guaranty.
C. Guarantor is an affiliate of the
Borrower, and the proceeds of the loans to be made by the Lender
under the Loan Agreement will result in a direct or indirect
material economic benefit to Guarantor.
NOW, THEREFORE, in consideration of
the foregoing, and for other good and valuable consideration
receipt of which is hereby acknowledged, Guarantor hereby agrees as
follows:
ARTICLE 1
DEFINITIONS AND INTERPRETIVE
PROVISIONS
Section 1.1 Certain Defined
Terms. As used in this
Guaranty, the following terms have the following
meanings:
“ Affiliate ”
means any Person who, directly or indirectly, controls or is
controlled by or is under common control with such
Person.
“ AICPA ” means
the American Institute of Certified Public Accountants.
“ Agent ” means
ANZ Amerika Samoa Bank, an American Samoa corporation, and any
Successor.
“ Business Day ”
means any day other than Saturday, Sunday or other day on which
banks are authorized or obligated to close in Pago Pago, American
Samoa.
“ Business Unit ”
means (i) a corporation, partnership or limited liability
company, business, business unit, division or product or service
line, or (ii) the assets that constitute all or substantially
all of the assets of any of the entities or business units
described in the preceding clause (i).
1
“ Capital Leases
” means for any Person, all obligations of such Person under
leases which shall have been, or in accordance with GAAP, should be
recorded as capital leases.
“ Capital Stock ”
means all shares of capital stock of or in a Person which is a
corporation, whether voting or non-voting, and including common
stock and preferred stock, all membership or other equity interests
of or in a Person which is a limited liability company, all
partnership and other equity interests of or in a Person which is a
partnership, and all similar equity and other interests of or in
any other Person.
“ Collateral ”
means the property in which any of the Security Documents creates
or purports to create a security interest or other lien in favor of
the Lender.
“ Commitment ”
means Lender’s obligation to make Loans under the Loan
Agreement.
“ Default Rate ”
means a per annum rate equal to eight percent (8%) above the
Prime Rate (changing as such Prime Rate changes).
“ Dollar ” and
“ $ ” mean lawful money of the United
States.
“ EBIT ” means,
for any period, an amount equal to Net Income for such period
plus , the following to the extent deducted in calculating
such Net Income, (i) Interest Expense for such period and
(ii) all Federal, state, local and foreign income tax expense
of Elandia and its Subsidiaries on a consolidated basis for such
period.
“ EBITDA ” means,
for any period, an amount equal to EBIT for such period plus
, to the extent deducted in calculating Net Income included in
calculating such EBIT, all depreciation and amortization expense of
Elandia and its Subsidiaries on a consolidated basis for such
period.
“ Fraudulent Transfer
Law ” means Section 548 of the Bankruptcy Code of
the United States, the Uniform Fraudulent Transfer Act, or any
applicable provisions of comparable international, foreign,
Federal, state or local law.
“ GAAP ” has the
meaning given in Section 1.3 .
“ Government Approval
” means an approval, permit, license, authorization,
certificate, or consent of any Governmental Authority.
“ Governmental
Authority ” means the government of the United States or
any State or any foreign country or any political subdivision of
any thereof or any branch, department, agency, instrumentality,
court, tribunal or regulatory authority which constitutes a part or
exercises any sovereign power of any of the foregoing.
“ Interest Expense
” means, for any period, the sum (without duplication) of
(i) all interest, premium payments, debt discount, fees,
charges and related expenses in connection with borrowed money
(including capitalized interest) or in connection with the deferred
purchase price of assets, in each case to the extent treated as
interest in accordance with GAAP and (ii) the portion of
rent
2
expense with respect to such period under
Capital Leases that is treated as interest in accordance with GAAP,
in each case, of or by Elandia and its Subsidiaries on a
consolidated basis for such period.
“ Lender ” has
the meaning specified in the Recitals.
“ Lien ” means,
for any Person, any security interest, pledge, mortgage, charge,
assignment, hypothecation, encumbrance, attachment, garnishment,
execution or other voluntary or involuntary lien upon or affecting
the revenues of such Person or any real or personal property in
which such Person has or hereafter acquires any
interest.
“ Net Income ”
means, for any period, an amount equal to the net income of Elandia
and its Subsidiaries on a consolidated basis for such
period.
“ Officer’s
Certificate ” means a certificate executed and delivered
on behalf of Guarantor by a Responsible Officer of
Guarantor.
“ Permitted Liens
” means: (i) Liens securing Taxes which are not
delinquent or which remain payable without penalty (excluding any
Liens imposed pursuant to any of the provisions of ERISA) or the
validity or amount of which is being contested in good faith by
appropriate proceedings, which shall have the effect of staying
execution if execution is threatened or possible; (ii) Liens
imposed by law (such as mechanics’, processor’s,
materialmen’s, carriers’, warehousemen’s and
landlord’s liens) incurred in good faith in the ordinary
course of business which are not delinquent or which remain payable
without penalty or the validity or amount of which is being
contested in good faith by appropriate proceedings, which shall
have the effect of staying execution if execution is threatened or
possible; (iii) Liens arising in connection with
worker’s compensation, unemployment insurance and social
security benefits which are not delinquent or which remain payable
without penalty or the validity or amount of which is being
contested in good faith by appropriate proceedings, which shall
have the effect of staying execution if execution is threatened or
possible; (iv) Liens incurred or deposits made in the ordinary
course of business to secure the performance of bids tenders,
statutory obligations, fee and expense arrangements with trustees
and fiscal agents (exclusive of obligations incurred in connection
with the borrowing of money) and customary deposits granted in the
ordinary course of business under operating leases; (v) Liens
securing surety, indemnity, performance, appeal and release bonds;
(vi) customary rights of set off, revocation, refund or
chargeback under deposit agreements or under the UCC in favor of
banks where the Guarantors or its respective Subsidiaries maintain
deposits in the ordinary course of business; and (vii) Liens
constituting encumbrances in the nature of zoning restrictions,
condemnations, easements, encroachments, covenants, rights of way,
minor defects, irregularities and rights or restrictions of record
on the title or use of real property, which, in the reasonable
judgment of the Lender, do not materially detract from the value of
such property or materially impair the use thereof in the business
and operations of the Guarantors or its respective
Subsidiaries.
“ Person ” means
any natural person, corporation, unincorporated organization,
trust, joint stock company, joint venture, association, company,
limited liability company, partnership or government, or any agency
or political subdivision of any government.
3
“ Prime Rate ”
means the base rate on corporate loans posted by at least 75% of
the United States’ 30 largest banks, commonly known as the
U.S. Prime Rate of Interest as published from time to time in the
Wall Street Journal .
“ Responsible Officer
” means, as to Guarantor, any of the Manager, Managing
Member, President, the Director, the Vice President, or the
Secretary of Guarantor.
“ Solvent ”
means, as to any Person at a particular time, if, at such time both
(a) (i) the then fair saleable value of the property of
such Person on a going concern basis is (A) greater than the
total amount of liabilities (including contingent liabilities) of
such Person as they mature in the ordinary course and (B) not
less than the amount that will be required to pay the probable
liabilities on such Person’s then existing debts as they
become absolute and matured considering all financing alternatives
and potential asset sales reasonably available to such Person;
(ii) such Person’s capital is not unreasonably small in
relation to its business or any contemplated or undertaken
transaction; and (iii) such Person does not intend to incur,
or believe (nor should it reasonably believe) that it will incur,
debts beyond its ability to pay such debts as they become due; and
(b) such Person is “solvent” within the meaning
given that term and similar terms under applicable laws relating to
fraudulent transfers and conveyances. For purposes of this
definition, the debts and liabilities of a Person, contingent or
otherwise, shall include the amount of all debts and liabilities
that are relevant under applicable Fraudulent Transfer Laws, and
the assets of a Person shall give effect to the value (as
determined under the applicable provisions of the Fraudulent
Transfer Laws) of any rights to subrogation, reimbursement,
indemnification or contribution of such Person pursuant to
applicable Law or pursuant to the terms of any agreement (including
the Contribution Agreement).
“ Subsidiary ”
means, for any Person, each business entity directly or indirectly
controlled by such Person. For the purposes of this definition,
“controlled by” shall mean the possession, directly or
indirectly of the power to direct or cause the direction of the
management or policies of such Subsidiary, whether through the
ownership of partnership or limited liability company interest,
voting securities, by contract, or otherwise.
“ Tax ” means,
for any Person, any tax, assessment, duty, levy, impost or other
charge imposed by any Governmental Authority on such Person or on
any property, revenue, income, or franchise of such Person and any
interest or penalty with respect to any of the
foregoing.
“ Total Current Assets
” means, for any Person, all assets of such Person that, in
accordance with GAAP, would be classified as current assets on the
balance sheet of a company conducting a business the same as or
similar to that of such Person.
“ Total Current
Liabilities ” means, for any Person, all liabilities
that, in accordance with GAAP, would be classified as current
liabilities on the balance sheet of a company conducting a business
the same as or similar to that of such Person.
“ Total Debt ”
means, for any Person, all liabilities that, in accordance with
GAAP, would be classified as liabilities on the balance sheet of
such Person.
“ Treasury Management
Contract ” means any agreement among the Borrower and its
Affiliates governing the provision of treasury or cash management
services, including, without limitation, deposit accounts, funds
transfers, automated clearing house (ACH) transactions, zero
balance accounts, concentration accounts, controlled disbursement
services and lockbox accounts.
4
“ United States ”
and “ U.S. ” each means the United States of
America.
Section 1.2 Interpretive
Provisions. The rules of
construction and interpretation specified in
Section 1.2 of the Loan Agreement also apply to this
Guaranty and are incorporated herein by this reference. All
capitalized terms used in this Guaranty and not otherwise defined
herein have the meanings specified in the Loan
Agreement.
Section 1.3 Accounting
Terms. Except as
otherwise provided herein, accounting terms not specifically
defined shall be construed, and all accounting procedures shall be
performed, in accordance with generally accepted United States
accounting principles consistently applied from and after the date
hereof (“ GAAP ”) and as in effect on the date
of application.
ARTICLE 2
GUARANTY
Section 2.1 Guaranteed
Obligations. Guarantor
hereby irrevocably, absolutely and unconditionally guarantees,
jointly with any other guarantors and severally, as a primary
obligor and not merely as a surety, the full and punctual payment
to the Lender when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and at all times
thereafter, without set off, counterclaim, recoupment or deduction
of any amounts owing or alleged to be owing by the Lender to the
Borrower, all of the following debts, liabilities, obligations,
covenants and duties (collectively, the “ Guaranteed
Obligations ”):
(a) all debts, liabilities, obligations, covenants
and duties of the Borrower owing to the Lender now or hereafter
existing, whether joint or several, direct or indirect, absolute or
contingent or due or to become due, arising under or in connection
with the Loan Agreement or any other Loan Document or any of the
transactions contemplated thereby and including, without
limitation, any interest due thereon, all fees, costs, and expenses
incurred by the Lender in connection therewith;
(b) all debts, liabilities, obligations, covenants
and duties of the Borrower owing to the Lender now or hereafter
existing, whether joint or several, direct or indirect, absolute or
contingent or due or to become due, arising under or in connection
with any agreement (including any master agreement and any
agreement relating to any single transaction) that is an interest
rate swap agreement, credit derivative agreement, forward rate
contract, commodity swap, commodity option, forward commodity
contract, interest rate option, forward foreign exchange contract,
cap, floor or collar agreement, currency swap contract,
cross-currency rate swap contract, currency option, spot contract,
or any other similar agreement, contract, transaction or any
combination of any of the foregoing, including all schedules
thereto, confirmations of transactions thereunder, and documents,
definitions, and agreements incorporated therein by reference or
relating thereto and including, without limitation, any interest
due thereon, all fees, costs, and expenses incurred by the Lender
in connection therewith, and termination payments and
indemnifications relating thereto;
5
(c) all debts, liabilities, obligations, covenants
and duties of the Borrower to pay or reimburse the Lender for all
reasonable expenses including, without limitation, attorneys’
fees (including allocated charges of internal legal counsel),
incurred by the Lender in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies
under any of the documents, instruments and agreements referred to
in subsections (a) through (b) above, including, without
limitation, all such costs and expenses incurred during any
“workout” or restructuring in respect of the loans made
under the Loan Agreement and during any legal proceeding,
including, without limitation, any proceeding under any applicable
international, foreign, Federal, state or local bankruptcy,
insolvency or other similar debtor relief laws; and
(d) all interest and fees on any of the foregoing,
whether accruing prior to or after the commencement by or against
the Borrower of any proceeding under any applicable bankruptcy,
insolvency or other similar debtor relief laws naming the Borrower
as the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such proceeding.
This Guaranty is a guaranty of
payment and not merely of collection. Guarantor agrees that its
obligations hereunder are, and shall be absolute, independent and
unconditional under any and all circumstances.
Section 2.2 Guarantors’
Consent. Guarantor hereby
consents to all terms and conditions of agreements heretofore or
hereafter made between the Lender and the Borrower (including
without limitation the Loan Agreement and the other Loan Documents)
and further consents that the Lender may without further consent or
disclosure and without affecting or releasing the obligations of
Guarantor hereunder: (a) surrender, exchange, release, assign,
or sell any collateral or waive, release, assign, sell, or
subordinate any security interest, in whole or in part;
(b) waive or delay the exercise of any rights or remedies of
the Lender against the Borrower; (c) waive or delay the
exercise of any rights or remedies of the Lender against any surety
or guarantor (including, without limitation, rights or remedies of
the Lender against Guarantor under this Guaranty); (d) waive
or delay the exercise of any rights or remedies of the Lender in
respect of any collateral or security interest now or hereafter
held; (e) release any surety or guarantor; (f) renew,
extend, waive or modify the terms of any Guaranteed Obligation or
the obligations of any surety or guarantor, or any instrument or
agreement evidencing the same; (g) renew, extend, waive or
modify the terms of any Loan Document or any other security
agreement, pledge, assignment, deed of trust, mortgage or other
security document; (h) apply payments received from the
Borrower or any surety or guarantor or from any collateral, to any
indebtedness, liability, or obligations of the Borrower or such
sureties or guarantors whether or not a Guaranteed Obligation
hereunder; and (i) realize on any security interest,
judicially or nonjudicially, with or without preservation of a
deficiency judgment.
Section 2.3 Guarantor’s
Waiver. Guarantor waives
any action on delinquency in respect of the Guaranteed Obligations
or any part thereof, including any requirement, substantive or
procedural, that (a) the Lender pursue any foreclosure action,
realize or attempt to realize on any security or preserve or
enforce any deficiency claim against the Borrower or any surety or
guarantor or any other Person after any realization; (b) a
judgment first be sought or rendered against the Borrower or any
surety or guarantor or any other
6
Person; (c) the Borrower or any surety or
guarantor or any other Person be joined in any action; or
(d) a separate action be brought against the Borrower under
the Loan Agreement or any other Loan Document. Guarantor waives and
releases all right to require marshaling of assets and liabilities
or sale in inverse order of alienation of any security for the
Guaranteed Obligations. Guarantor further waives notice of
(a) the Lender’s acceptance of this Guaranty or its or
their intention to act or its or their actions in reliance hereon;
(b) the present existence or future incurring of any
Guaranteed Obligations or any terms or amounts thereof or any
change therein; (c) any default by the Borrower or any surety
or guarantor; (d) the obtaining of any guaranty or surety
agreement (in addition to this Guaranty); (e) the obtaining of
any pledge, assignment or other security for any Guaranteed
Obligations; (f) the release of any surety or guarantor;
(g) the release of any collateral; (h) any change in the
Borrower’s business, operations, properties, financial
condition or prospects; (i) any renewal, extension or
modification of the terms of any Guaranteed Obligation or of the
obligations or liabilities of any surety or guarantor or any
instruments or agreements evidencing the same; (j) any acts or
omissions of the Lender consented to in Section 2.2
hereof; and (k) any other demands or notices whatsoever with
respect to the Guaranteed Obligations or this Guaranty. Guarantor
further waives notice of presentment, demand, protest, notice of
nonpayment and notice of protest in relation to any instrument or
agreement evidencing any Guaranteed Obligation.
Section 2.4 Guaranty Survives
Foreclosure. The Lender,
at its option and in its sole discretion, may proceed against any
collateral securing any of the Guaranteed Obligations by way of
foreclosure or any other lawful remedy for the enforcement of its
or their rights, and the obligations of Guarantor under this
Guaranty shall survive the Lender’s exercise of any such
right or remedy, and shall not be extinguished or impaired thereby.
Guarantor hereby waives and relinquishes any claim or defense based
upon the exercise by the Lender of any lawful remedy, election of
remedies, or discharge of the Borrower’s obligation to pay
and perform the Guaranteed Obligations.
Section 2.5 Guarantors’
Knowledge of Borrower’s Economic Conditions.
Guarantor represents and warrants to
the Lender that it has reviewed such documents and other
information as it has deemed appropriate in order to permit it to
be fully apprised of the Borrower’s business, operations,
properties, financial condition and prospects and has, in entering
into this Guaranty made its own credit analysis independently and
without reliance upon any information communicated to it by the
Lender. Guarantor covenants for the benefit of the Lender to remain
apprised of all material economic or other developments relating to
or affecting the Borrower, its business, operations, properties,
financial condition and prospects. Without limiting the foregoing,
Guarantor agrees to enter into such agreements and arrangements
with the Borrower as may be necessary to ensure its receipt of
notice of such material changes and of periodic financial
statements. Guarantor expressly waives any requirement that the
Lender advise, disclose, discuss or deliver notice to Guarantor
regarding the Borrower’s business, operations, properties,
financial condition or prospects or with respect to any default by
the Borrower in its performance of the Guaranteed Obligations
whether or not knowledge of such condition, operations or default
is or reasonably could be in the possession of Guarantor and
whether or not such knowledge is in the possession of the Lender
before or after the extension of any credit giving rise to
Guaranteed Obligations by the Borrower.
7
Section 2.6 Unconditional
Guaranty. The obligations
of the Guarantor under this Guaranty are absolute and unconditional
without regard to the obligations of any other Person. The
obligations of the Guarantor hereunder shall not be in any way
limited or effected by any circumstance whatsoever including,
without limitation, (a) any act or omission of the Lender
consented to in Section 2.2 hereof; (b) the
failure to receive any notice, demand, presentment or protest
waived in Section 2.4 hereof; (c) any failure by
the Borrower or any surety or guarantor or any other Person to
perform or comply with the Guaranteed Obligations or the terms of
any instrument or agreement relating thereto; (d) any change
in the name, purpose, membership units or organization of the
Borrower or any surety or guarantor or any other Person;
(e) any irregularity, defect or unauthorized action by the
Lender, the Borrower or any surety or guarantor or any other Person
or any of its respective officers, directors members, managers or
other agents in executing and delivering any instrument or
agreements relating to the Guaranteed Obligations or in carrying
out or attempting to carry out the terms of any such agreements;
(f) any insolvency, bankruptcy, reorganization or similar
proceeding by or against the Borrower, Lender, Guarantor or any
other surety or guarantor or other Person; (g) any setoff,
counterclaim, recoupment, deduction, any defense or other right
which Guarantor may have against the Lender, the Borrower or any
surety or guarantor or any other Person for any reason whatsoever
whether related to the Guaranteed Obligations or otherwise; or
(h) any other circumstance which might constitute a legal or
equitable discharge or defense, in whole or in part, of a surety or
guarantor. By signing this Guaranty, Guarantor hereby waives all
defenses of a surety to which it may be entitled by statute or
otherwise.
Section 2.7 Continuing
Guaranty. This Guaranty
is a continuing guaranty and shall be binding upon Guarantor
regardless of how long before or after the date hereof Guaranteed
Obligation was or is incurred. Credit may
be granted or continued from time to time by the
Lender to the Borrower without notice to or authorization from
Guarantor regardless of the Borrower’s then-existing
financial or other condition. Notwithstanding the foregoing,
however, Guarantor may limit its obligations hereunder by delivery
of written notice to such effect to the Lender. Such notice will
limit Guarantor’s obligations hereunder to
(a) Guaranteed Obligations incurred by the Borrower, or
arising out of acts or omissions of the Borrower occurring, on or
prior to a date five (5) Business Days after such notice is
received by Lender; (b) any extensions, renewals, or
modifications of such Guaranteed Obligations; and (c) any
additional fees and expenses incurred by the Lender (including,
without limitation, attorney’s fees and costs) in seeking to
enforce or collect such Guaranteed Obligations. Guarantor agrees
that this Guaranty shall continue to be effective or shall be
reinstated as the case may be if at any time any payment to the
Lender of any of the Guaranteed Obligations is rescinded or must be
restored or returned by the Lender upon the insolvency, bankruptcy
or reorganization of the Borrower, all as though such payment had
not been made. In the event this Guaranty is preceded or followed
by any other agreement of suretyship or guaranty by Guarantor or
others, all shall be deemed to be cumulative, and the obligations
of Guarantor hereunder shall be in addition to those stated in any
other suretyship or guaranty agreement.
Section 2.8 No
Reliance. Guarantor
acknowledges that the Lender intends to obtain collateral and other
guaranties to secure the repayment of the Guaranteed Obligations.
Guarantor represents and warrants to the Lender, however, that in
making this Guaranty it is not relying upon the Lender obtaining
any guaranty agreements (other than this Guaranty) or any
collateral pledged or ass