EXHIBIT 10.50
GUARANTY AGREEMENT
This GUARANTY AGREEMENT, dated as of
November 30, 2006 (this “ Guaranty Agreement ”),
made by EquityCo, L.L.C., a Nevada limited liability company (the
“ Guarantor ”), in favor of the Mezzanine
Investors (as such term is defined in the Investor Rights
Agreement, defined below) (the “ Mezzanine Investors
”), and Post Advisory Group, L.L.C., a Delaware limited
liability company (its successors and assigns and any other
financial institution reasonably acceptable to the Mezzanine
Investors, the “ Collateral Agent ”), is entered
into pursuant to that certain Amended and Restated Investor Rights
Agreement, dated as of November 30 , 2006 (as amended,
supplemented or otherwise modified from time to time, the “
Investor Rights Agreement ”), by and among MezzCo,
L.L.C., a Nevada limited liability company (the “
Company ”), the Guarantor, and the Securityholders
identified therein. Capitalized terms used herein but not
otherwise defined herein shall have the meaning ascribed thereto in
the Investor Rights Agreement.
RECITALS
WHEREAS, the Guarantor has agreed
that it will be a guarantor of the Company’s obligations to
the Mezzanine Investors in connection with the Investor Rights
Agreement; and
WHEREAS, the Company has received
substantial benefit from the issuance of Warrants to the
Mezzanine Investors and the other transactions contemplated by the
Restructuring Documents, and Guarantor, as the managing member of
the Company, is expected to benefit, directly or indirectly, from
such transactions;
NOW, THEREFORE, in consideration of
the foregoing premises and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the
Guarantor hereby agrees with the Mezzanine Investors and the
Collateral Agent, as follows:
1.
Guaranty . The Guarantor hereby irrevocably,
absolutely and unconditionally guarantees to the Mezzanine
Investors and each of their respective successors, transferees and
assigns, as obligor and not merely as a surety, the prompt and
complete payment (as and when due and payable) of (i) the
obligation of the Company to pay the Redemption Price (as defined
in the Warrants) prior to the expiration of the Put Demand Period
(as defined in the Warrants) and (ii) any indebtedness
arising under the Put Note (as defined in the Warrant) issued or
deemed to be issued pursuant to the Warrants (or any other
instruments at any time evidencing any of the obligations
referenced in clause (i) or (ii), the “ Guaranteed
Obligations ”) and agrees to pay on demand any and all
reasonable costs and expenses (including reasonable fees and
out-of-pocket expenses of one outside legal counsel and one outside
Nevada counsel for the Collateral Agent and the Mezzanine
Investors) which may be paid or incurred by the Collateral Agent or
any Mezzanine Investor in collecting, enforcing or exercising any
available remedies in respect of any or all of the Guaranteed
Obligations and the obligations of the Guarantor under this
Guaranty Agreement (its “ Guaranty ”). The
Guarantor acknowledges and agrees that this Guaranty constitutes a
guaranty of payment when due and not of collection, and waives any
right to require any resort of the Mezzanine Investors or the
Collateral Agent to any of the Collateral (as such term is defined
in that certain Pledge Agreement, between the Collateral Agent and
the
1
Guarantor, dated
as of the date hereof), (the “ Collateral ”)
held as security of the Guaranteed Obligations.
2.
Obligations Unconditional . The Guarantor hereby
guarantees that the Guaranteed Obligations will be paid strictly in
accordance with the terms of the Warrants, regardless of: (a) any
law now or hereafter in effect in any jurisdiction affecting any
such terms or the rights of any Mezzanine Investor with respect
thereto, or the obligations and liabilities or validity or
enforceability of any of the Guaranteed Obligations and the
Warrants, or any agreement or instrument relating thereto; (b) any
change in the time, manner, or place of payment of, or in any other
term in respect of, all or any of the Guaranteed Obligations or any
other documents or instruments executed in connection with or
related to the Guaranteed Obligations; (c) any exchange or release
of, or non-perfection of any lien on or in, any Collateral, if any,
or any release or amendment or waiver of or consent to any
departure from any other guaranty, for all or any of the Guaranteed
Obligations; or (d) any other circumstances which might otherwise
constitute a defense (including a surety defense) available to, or
a discharge of, the Company in respect of the Guaranteed
Obligations or of the Guarantor in respect of its Guaranty other
than the prompt or complete payment in full of such
obligations.
This Guaranty Agreement is a
continuing guaranty and shall remain in full force and effect
until: (a) the prompt and complete payment in full of all the
Guaranteed Obligations, and (b) the payment of the other expenses
required to be paid by the Guarantor pursuant to Section 1 of this
Guaranty Agreement. This Guaranty Agreement shall continue to
be effective or shall be reinstated, as the case may be, if at any
time any payment, or any part thereof, of any of the Guaranteed
Obligations is rescinded or is required by any Governmental
Authority to be returned by the Collateral Agent or any Mezzanine
Investor upon or in connection with the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Company, the
Guarantor or otherwise, all as though such payment had not been
made.
The obligations and liabilities of
the Guarantor under this Guaranty Agreement shall not be
conditioned or contingent upon the pursuit by the Collateral Agent,
any Mezzanine Investor or any other Person at any time of any right
or remedy against the Company or any other Person which may be or
become liable in respect of all or any part of the Guaranteed
Obligations or against any Collateral, if any, or other security or
guarantee there