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Exhibit
99.9
GUARANTY
dated as of June 1,
2007
among
THE GUARANTORS FROM TIME
TO TIME PARTY HERETO
and
THE BANK OF NEW
YORK,
as Collateral
Agent
TABLE OF
CONTENTS*
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Page |
| ARTICLE I |
| GUARANTY |
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Section 1.01
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The
Guaranty |
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1 |
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Section 1.02
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Guaranty
Absolute |
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2 |
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Section 1.03
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Payments |
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4 |
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Section 1.04
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Discharge; Reinstatement in Certain Circumstances |
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4 |
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Section 1.05
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Waiver by
the Guarantors |
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5 |
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Section 1.06
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Agreement
to Pay; Subordination of Subrogation Claims |
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7 |
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Section 1.07
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Stay of
Acceleration |
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7 |
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Section 1.08
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No
Set-Off |
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8 |
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| ARTICLE II |
| INDEMNIFICATION, SUBROGATION AND
CONTRIBUTION |
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Section 2.01
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Indemnity
and Subrogation |
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8 |
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Section 2.02
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Contribution and Subrogation |
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8 |
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| ARTICLE III |
| REPRESENTATIONS, WARRANTIES AND
COVENANTS |
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Section 3.01
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Representations and Warranties; Certain Agreements |
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8 |
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Section 3.02
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Information |
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9 |
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Section 3.03
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Subordination by Guarantors |
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9 |
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| ARTICLE IV |
| SET-OFF |
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Section 4.01
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Right of
Set-Off |
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10 |
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| ARTICLE V |
| MISCELLANEOUS |
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Section 5.01
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Notices |
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10 |
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Section 5.02
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Benefit
of Agreement |
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10 |
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Section 5.03
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No
Waivers; Non-Exclusive Remedies |
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10 |
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Section 5.04
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Expenses;
Indemnification |
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11 |
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Section 5.05
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Enforcement |
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11 |
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Section 5.06
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Amendments and Waivers |
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11 |
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Section 5.07
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Governing
Law; Submission to Jurisdiction |
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12 |
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Section 5.08
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Limitation of Law; Severability |
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12 |
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Section 5.09
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Counterparts; Integration; Effectiveness |
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12 |
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Section 5.10
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WAIVER OF
JURY TRIAL |
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13 |
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Section 5.11
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Additional Guarantors |
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13 |
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Section 5.12
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Termination; Release of Guarantors |
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13 |
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Section 5.13
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Conflict |
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13 |
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*
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The Table of
Contents is not part of the Guaranty.
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GUARANTY dated as of
June 1, 2007 (as amended, restated, modified or supplemented
from time to time, this “ Agreement ”) among
WorldSpace Systems Corporation, a Delaware corporation, AfriSpace,
Inc., a Maryland corporation, Asia Space Limited, a company
incorporated under the laws of Australia and WorldSpace Satellite
Company, a company incorporated under the laws of the British
Virgin Islands (the “Guarantors”), and The Bank of New
York (“ Bank of New York ”), as Collateral Agent
for the benefit of the Holders referred to herein.
In connection with the
transactions (the “ Redemption and Exchange
Transaction ”) contemplated by that certain Amendment,
Redemption and Exchange Agreement, dated as of June 1, 2007
(as the same may be amended, modified or supplemented from time to
time, the “ Exchange Agreement ”), among
WorldSpace, Inc. (the “Borrower”) and the Holders, the
Holders have agreed to exchange $45,000,000 principal amount of
Existing Notes (as such term is defined in the Exchange Agreement)
for first lien bridge notes (the “ Bridge Notes
”) in the aggregate principal amount of $45,000,000. Terms
used but not otherwise defined herein that are defined in the
Bridge Notes shall have the meanings given to them in the Bridge
Notes.
To induce the Holders to
enter into the Exchange Agreement, the Bridge Notes and the
Security Agreement, dated as of June 1, 2007, among the
Collateral Agent, the Borrower, the Guarantors and the Holders
(collectively, the “ Bridge Loan Documents ”),
the Guarantors have agreed, jointly and severally, to provide a
guaranty of all obligations of the Borrower under and in respect of
the Bridge Loan Documents. The Borrower and the Guarantors are
referred to herein individually as a “ Credit Party
” and collectively as the “ Credit Parties
.” As used herein, “ Other Credit Parties
” means, with respect to any Guarantor, any and all of the
Credit Parties other than such Guarantor.
Each of the Guarantors is a
Subsidiary or Affiliate of the Borrower and will receive not
insubstantial benefits from the Bridge Notes and the financial
accommodations to be made, issued or entered into thereunder.
Accordingly, the Guarantors hereby agree with the Collateral Agent
for the benefit of the Holders as follows:
ARTICLE I
GUARANTY
Section 1.01 The
Guaranty . Each Guarantor unconditionally guarantees,
jointly with the other Guarantors, and severally, as a primary
obligor and not merely as a surety: (i) the due and punctual
payment of all obligations under the Bridge Notes whether now or
hereafter due, owing or incurred in any manner, whether actual or
contingent, whether incurred solely or jointly with any other
Person and whether as principal or surety (and including all
liabilities in connection with any notes, bills or other
instruments accepted by any Holder in connection therewith),
together in each case with all renewals, modifications,
consolidations or extensions thereof, and (ii) the due and
punctual performance of all covenants, agreements, obligations and
liabilities of the Borrower and the Other Credit Parties under or
pursuant to the Bridge Notes and the other Bridge Loan Documents
(all such monetary and other obligations being herein collectively
referred to as the “ Guaranteed Obligations
”).
Anything contained in this
Agreement to the contrary notwithstanding, the obligations of each
Guarantor hereunder shall be limited to a maximum aggregate amount
equal to the greatest amount that would not render such
Guarantor’s obligations hereunder subject to avoidance as a
fraudulent transfer or conveyance under Section 548 of Title
11 of the United States Code or any provisions of applicable state
law (collectively, the “ Fraudulent Transfer Laws
”), in each case after giving effect to all other liabilities
of such Guarantor, contingent or otherwise, that are relevant under
the Fraudulent Transfer Laws (specifically excluding, however, any
liabilities of such Guarantor (i) in respect of
intercompany
indebtedness to the Borrower or any of
its Affiliates to the extent that such indebtedness (A) would
be discharged or would be subject to a right of set-off in an
amount equal to the amount paid by such Guarantor hereunder or
(B) has been pledged to, and is enforceable by, Collateral
Agent for the benefit of the Collateral Agent or Holders or and
(ii) under any guaranty of Indebtedness subordinated in right
of payment to the Guaranteed Obligations which guaranty contains a
limitation as to a maximum amount similar to that set forth in this
paragraph pursuant to which the liability of such Guarantor
hereunder is included in the liabilities taken into account in
determining such maximum amount) and after giving effect as assets
of such Guarantor to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to
subrogation, contribution, reimbursement, indemnity or similar
rights of such Guarantor pursuant to (i) applicable Law or
(ii) any agreement providing for an equitable allocation among
such Guarantor and other Affiliates of the Borrower of obligations
arising under guaranties by such parties (including the agreements
in Article II of this Agreement). In the event that any
Guarantor’s liability hereunder is limited pursuant to this
paragraph to an amount that is less than the total amount of the
Guaranteed Obligations, then it is understood and agreed that the
portion of the Guaranteed Obligations for which such Guarantor is
liable hereunder shall be the last portion of the Guaranteed
Obligations to be repaid.
Section 1.02 Guaranty
Absolute . Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of
the Bridge Loan Documents, regardless of any Law now or hereafter
in effect in any jurisdiction affecting any of such terms or the
rights of the Holders with respect thereto. The obligations of the
Guarantors under this Agreement are independent of the Guaranteed
Obligations, and a separate action or actions may be brought and
prosecuted against each Guarantor to enforce this Agreement,
irrespective of whether any action is brought against the Borrower
or any Other Credit Party or whether the Borrower or any Other
Credit Party is joined in any such action or actions. This
Agreement is an absolute and unconditional guaranty of payment when
due, and not of collection, by each Guarantor, jointly and
severally with each other Guarantor of the Guaranteed Obligations
in each and every particular. The obligations of each Guarantor
hereunder are several from those of the Other Credit Parties and
are primary obligations concerning which each Guarantor is the
principal obligor. The Holders shall not be required to mitigate
damages or take any action to reduce, collect or enforce the
Guaranteed Obligations.
The obligations of each
Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason, including the
existence of any claim, set-off or other right which any Guarantor
may have at any time against any Other Credit Party, the Collateral
Agent or any Holder or any other Person, whether in connection
herewith or any unrelated transactions. Without limiting the
generality of the foregoing, each Guarantor’s liability shall
extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by any Other Credit Party to the
Collateral Agent or any Holder under the Bridge Loan Documents but
for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding
involving the Borrower or such Other Credit Party.
Without limiting the
generality of the foregoing, the obligations of each Guarantor
hereunder shall not be released, discharged or otherwise affected
or impaired by:
(i) any extension, renewal,
settlement, compromise, acceleration, waiver or release in respect
of any obligation of the Borrower or any Other Credit Party under
the Bridge Notes, any other Bridge Loan Document or any other
agreement or instrument evidencing or securing any Guaranteed
Obligation, by operation of Law or otherwise;
(ii) any change in the
manner, place, time or terms of payment of any Guaranteed
Obligation or any other amendment, supplement or modification to
the Bridge Notes, the Notes, any Swap Agreement, any other Bridge
Loan Document or any other agreement or instrument evidencing or
securing any Guaranteed Obligation;
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(iii) any release,
non-perfection or invalidity of any direct or indirect security for
any Guaranteed Obligation, any sale, exchange, surrender,
realization upon, offset against or other action in respect of any
direct or indirect security for any Guaranteed Obligation or any
release of any Other Credit Party or any other guarantor or
guarantors of any Guaranteed Obligation;
(iv) any change in the
existence, structure or ownership of the Borrower or any Other
Credit Party or any insolvency, bankruptcy, reorganization,
arrangement, readjustment, composition, liquidation or other
similar proceeding affecting the Borrower or any Other Credit Party
or its assets or any resulting disallowance, release or discharge
of all or any portion of any Guaranteed Obligation;
(v) the existence of any
claim, set-off or other right which any Guarantor may have at any
time against the Borrower, any Other Credit Party, the Collateral
Agent, any Holder or any other Person, whether in connection
herewith or any unrelated transaction; provided that nothing
herein shall prevent the assertion of any such claim by separate
suit or compulsory counterclaim;
(vi) any invalidity or
unenforceability relating to or against the Borrower or any Other
Credit Party for any reason of the Bridge Notes, any other Bridge
Loan Document or any other agreement or instrument evidencing or
securing any Guaranteed Obligation or any provision of applicable
Law purporting to prohibit the payment by the Borrower or any Other
Credit Party of any Guaranteed Obligation;
(vii) any failure by the
Collateral Agent or any Holder: (A) to file or enforce a claim
against any Other Credit Party or its estate (in a bankruptcy or
other proceeding); (B) to give notice of the existence,
creation or incurrence by any Other Credit Party of any new or
additional indebtedness or obligation under or with respect to the
Guaranteed Obligations; (C) to commence any action against any
Other Credit Party; (D) to disclose to any Guarantor any facts
which the Collateral Agent or such Holder may now or hereafter know
with regard to any Other Credit Party; or (E) to proceed with
due diligence in the collection, protection or realization upon any
collateral securing the Guaranteed Obligations;
(viii) any direction as to
application of payment by the Borrower, any Other Credit Party or
any other Person;
(ix) any subordination by any
Holder of the payment of any Guaranteed Obligation to the payment
of any other liability (whether matured or unmatured) of any Other
Credit Party to its creditors;
(x) any act or failure to act
by the Collateral Agent or any Holder under this Agreement or
otherwise which may deprive any Guarantor of any right to
subrogation, contribution or reimbursement against any Other Credit
Party or any right to recover full indemnity for any payments made
by such Guarantor in respect of the Guaranteed Obligations;
or
(xi) any other act or
omission to act or delay of any kind by the Borrower, any Other
Credit Party, the Collateral Agent or any Holder or any other
Person or any other circumstance whatsoever which might, but for
the provisions of this clause, constitute a legal or equitable
discharge of any Guarantor’s obligations hereunder (except
that a Guarantor may assert the defense of final payment in full of
the Guaranteed Obligations).
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Each Guarantor has
irrevocably and unconditionally delivered this Agreement to the
Collateral Agent, for the benefit of the Collateral Agent and the
Holders, and the failure by any Other Credit Party or any other
Person to sign this Agreement or a guaranty similar to this
Agreement or otherwise shall not discharge the obligations of any
Guarantor hereunder. The irrevocable and unconditional liability of
each Guarantor hereunder applies whether it is jointly and
severally liable for the entire amount of the Guaranteed
Obligations, or only for a pro-rata portion, and without regard to
any rights (or the impairment thereof) of subrogation, contribution
or reimbursement that such Guarantor may now or hereafter have
against any Other Credit Party or any other Person. This Agreement
is and shall remain fully enforceable against each Guarantor
irrespective of any defenses that any Other Credit Party may have
or assert in respect of the Guaranteed Obligations, including,
without limitation, failure of consideration, breach of warranty,
payment, statute of frauds, statute of limitations, accord and
satisfaction and usury, except that a Guarantor may assert the
defense of final payment in full of the Guaranteed
Obligations.
Section 1.03
Payments .
(a) Payments to be Made
Upon Event of Default . If the Borrower or any Other Credit
Party fails to pay or perform any Guaranteed Obligation when due in
accordance with its terms (whether at stated maturity, by
acceleration or otherwise) or if any Event of Default specified in
Sections 4(a)(iii) and (iv) of the Bridge Notes occurs with
respect to the Borrower, the Guarantors shall, forthwith on demand
of the Collateral Agent, pay the aggregate amount of all Guaranteed
Obligations to the Collateral Agent.
(b) General Provisions
as to Payments . Each payment hereunder shall be made
without set-off, counterclaim or other deduction, in Federal or
other funds immediately available in New York City, to the
Collateral Agent at the address referred to in
Section 5.01 (it being understood that a Guarantor may
assert the defense of final payment in full of the Guaranteed
Obligations).
(c) Application of
Payments. All payments received by the Collateral Agent
hereunder shall be applied as provided in Section 10.1 of the
Security Agreement and Section 4.1 of the Intercreditor
Agreement.
Section 1.04 Discharge;
Reinstatement in Certain Circumstances . Each
Guarantor’s obligations hereunder shall remain in full force
and effect until the principal of and interest on the Bridge Notes
and all other amounts payable by the Borrower and the Other Credit
Parties under or with respect to the Guaranteed Obligations (other
than contingent indemnification obligations) have been paid in full
in cash. No payment or payments made by the Borrower, any Other
Credit Party or any other Person or received or collected by any
Holder from the Borrower, any Other Credit Party or any other
Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in
reduction of or in payment of the Guaranteed Obligations shall be
deemed to modify, reduce, release or otherwise affect the liability
of any Guarantor hereunder, it being understood that each Guarantor
shall, notwithstanding any such payment or payments, remain liable
for the Guaranteed Obligations until the Guaranteed Obligations
(other than contingent indemnification obligations) are paid in
full in cash. If at any time any payment by the Borrower, any Other
Credit Party or any other Person of any Guaranteed Obligation is
rescinded or must otherwise be restored or returned upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization
of the Borrower or such Other Credit Party or other Person or upon
or as a result of the appointment of a receiver, intervener or
conservator of, or trustee or similar officer for, the Borrower or
such Other Credit Party or other Person or any substantial part of
its
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respective property or otherwise, each
Guarantor’s obligations hereunder with respect to such
payment shall be reinstated as though such payment had been due but
not made at such time. Each Guarantor agrees that payment or
performance of any of the Guaranteed Obligations or other acts
which toll any statute of limitations applicable to the Guaranteed
Obligations shall also toll the statute of limitations applicable
to each Guarantor’s liability hereunder.
Section 1.05 Waiver by
the Guarantors . Each Guarantor hereby waives, only to the
extent permitted by applicable law, presentment to, demand of
payment from and protest to the Other Credit Parties of any of the
Guaranteed Obligations, and also waives promptness, diligence,
notice of acceptance of its guarantee, any other notice with
respect to any of the Guaranteed Obligations and this Agreement and
any requirement that the Collateral Agent or any Holder protect,
secure, perfect or insure any Lien or any property subject thereto.
Each Guarantor further waives any right to require that resort be
had by the Collateral Agent or any Holder to any security held for
payment of the Guaranteed Obligations or to any balance of any
deposit, account or credit on the books of the Collateral Agent or
any Holder in favor of any Holder or any other Person. Each
Guarantor hereby consents and agrees to each of the following to
the fullest extent permitted by Law, and agrees that such
Guarantor’s obligations under this Agreement shall not be
released, diminished, impaired, reduced or adversely affected by
any of the following, and waives any rights (including rights to
notice) which such Guarantor might otherwise have as a result of or
in connection with any of the following:
(i) any renewal, extension,
modification, increase, decrease, alteration or rearrangement of
all or any part of the Guaranteed Obligations or any instrument
executed in connection therewith, or any contract or understanding
with any Other Credit Party, the Collateral Agent, any Holder, or
any of them, or any other Person, pertaining to the Guaranteed
Obligations;
(ii) any adjustment,
indulgence, forbearance or compromise that might be granted or
given by the Collateral Agent or any Holder to any Other Credit
Party or any other Person liable on the Guaranteed Obligations; or
the failure of the Collateral Agent or any Holder to assert any
claim or demand or to exercise any right or remedy against any
Other Credit Party under the provisions of any Bridge Loan Document
or otherwise; or any rescission, waiver, amendment or modification
of, or any release from any of the terms or provisions of, any
Bridge Loan Document or any other agreement, including with respect
to any Other Credit Party under this Agreement;
(iii) the insolvency,
bankruptcy, arrangement, adjustment, composition, liquidation,
disability, dissolution or lack of power of any Other Credit Party
or any other Person at any time liable for the payment of all or
part of the Guaranteed Obligations; or any dissolution of any Other
Credit Party, or any change, restructuring or termination of the
corporate structure or existence of any Other Credit Party, or any
sale, lease or transfer of any or all of the assets of any Other
Credit Party, or any change in the shareholders, partners, or
members of any Other Credit Party; or any default, failure or
delay, willful or otherwise, in the performance of the Guaranteed
Obligations;
(iv) the invalidity,
illegality or unenforceability of all or any part of the Guaranteed
Obligations, or any document or agreement executed in connection
with the Guaranteed Obligations, for any reason whatsoever,
including the fact that the Guaranteed Obligations, or any part
thereof, exceed the amount permitted by Law, the act of creating
the Guaranteed Obligations or any part thereof is ultra
vires , the officers or representatives executing the
documents or otherwise creating the Guaranteed Obligations acted
in
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