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CONTINUING GUARANTY

Guarantee Agreement

CONTINUING GUARANTY | Document Parties: ELANDIA INTERNATIONAL INC. | ANZ AMERIKA SAMOA BANK | ANZ FINANCE AMERICAN SAMOA, INC | Samoa American Samoa Cable, LLC You are currently viewing:
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ELANDIA INTERNATIONAL INC. | ANZ AMERIKA SAMOA BANK | ANZ FINANCE AMERICAN SAMOA, INC | Samoa American Samoa Cable, LLC

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Title: CONTINUING GUARANTY
Date: 8/14/2009

CONTINUING GUARANTY, Parties: elandia international inc. , anz amerika samoa bank , anz finance american samoa  inc , samoa american samoa cable  llc
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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

 

ARTICLE 1 DEFINITIONS AND INTERPRETIVE PROVISIONS

  

1

Section 1.1

  

Certain Defined Terms

  

1

Section 1.2

  

Interpretive Provisions

  

5

Section 1.3

  

Accounting Terms

  

5

ARTICLE 2 GUARANTY

  

5

Section 2.1

  

Guaranteed Obligations

  

5

Section 2.2

  

Guarantors’ Consent

  

6

Section 2.3

  

Guarantor’s Waiver

  

6

Section 2.4

  

Guaranty Survives Foreclosure

  

7

Section 2.5

  

Guarantors’ Knowledge of Borrower’s Economic Conditions

  

7

Section 2.6

  

Unconditional Guaranty

  

8

Section 2.7

  

Continuing Guaranty

  

8

Section 2.8

  

No Reliance

  

8

Section 2.9

  

Borrower Indebtedness to Guarantor

  

9

Section 2.10

  

Limitations on Guarantor’s Rights

  

9

ARTICLE 3 REPRESENTATIONS AND WARRANTIES

  

10

Section 3.1

  

Existence and Power

  

10

Section 3.2

  

Authorization

  

10

Section 3.3

  

Government Approvals, Etc

  

10

Section 3.4

  

Binding Obligations, Etc

  

10

Section 3.5

  

Litigation

  

10

Section 3.6

  

Financial Condition.

  

11

  

(a)    Pro forma Financial Information

  

11

  

(b)    Financial Statements

  

11

Section 3.7

  

Solvency

  

11

Section 3.8

  

Title and Liens

  

11

Section 3.9

  

Taxes

  

11

Section 3.10

  

Other Agreements

  

12

Section 3.11

  

Subsidiaries

  

12

Section 3.12

  

Representations as a Whole

  

12

ARTICLE 4 AFFIRMATIVE COVENANTS

  

12

Section 4.1

  

Preservation of Corporate Existence, Etc

  

12

Section 4.2

  

Visitation Rights

  

12

Section 4.3

  

Keeping of Books and Records

  

13

Section 4.4

  

Maintenance of Property, Etc

  

13

Section 4.5

  

Compliance With Laws, Etc

  

13

Section 4.6

  

Other Obligations

  

13

Section 4.7

  

Insurance

  

14

 

i


Section 4.8

  

Financial Information

  

14

  

(a)    Annual Guarantor Financial Statements

  

14

  

(b)    Quarterly Guarantor Financial Statements

  

14

  

(c)    Other

  

14

Section 4.9

  

Reserved.

  

14

Section 4.10

  

Notification

  

14

Section 4.11

  

Additional Payments; Additional Acts

  

15

ARTICLE 5 NEGATIVE COVENANTS

  

15

Section 5.1

  

Dividends, Management Fees, Etc

  

16

Section 5.2

  

Transactions With Affiliates

  

16

Section 5.3

  

Consolidations and Mergers

  

16

Section 5.4

  

Dispositions of Assets

  

17

Section 5.5

  

Indebtedness

  

17

Section 5.6

  

Guaranties, Etc

  

17

Section 5.7

  

Liens

  

17

Section 5.8

  

Investments

  

18

Section 5.9

  

Operations

  

18

Section 5.10

  

Securities

  

18

Section 5.11

  

Accounting Change

  

18

ARTICLE 6 MISCELLANEOUS

  

18

Section 6.1

  

No Waiver; Cumulative Remedies

  

18

Section 6.2

  

Expenses; Default Interest

  

18

Section 6.3

  

Notices

  

19

Section 6.4

  

Assignment

  

19

Section 6.5

  

Governing Law

  

20

Section 6.6

  

Waiver of Right to Trial by Jury

  

20

Section 6.7

  

Consent to Jurisdiction

  

20

Section 6.8

  

Entire Agreement; Amendment, Etc

  

20

Section 6.9

  

USA Patriot Act Notice

  

20

Section 6.10

  

Set-Off

  

20

Section 6.11

  

Judgment Currency

  

21

Section 6.12

  

Executed in Counterparts

  

21

Section 6.13

  

Severability

  

21

 

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


 
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