Exhibit 10.3
EXECUTION COPY
PARENT GUARANTY AGREEMENT
dated as of March 9,
2007
by
CARROLS RESTAURANT GROUP,
INC.,
as Parent Guarantor,
in favor of
WACHOVIA BANK, NATIONAL
ASSOCIATION
as Agent
TABLE OF CONTENTS
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Page
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ARTICLE I DEFINED TERMS
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1
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SECTION 1.1
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Definitions
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1
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SECTION 1.2
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Other
Definitional Provisions
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2
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ARTICLE II GUARANTY
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2
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SECTION 2.1
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Parent
Guaranty
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2
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SECTION 2.2
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Bankruptcy
Limitations on Parent Guarantor
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3
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SECTION 2.3
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Agreement
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3
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SECTION 2.4
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Nature of
Parent Guaranty
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4
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SECTION 2.5
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Waivers
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5
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SECTION 2.6
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Modification of
Loan Documents, etc.
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6
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SECTION 2.7
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Demand by the
Agent
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7
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SECTION 2.8
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Remedies
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7
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SECTION 2.9
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Benefits of
Parent Guaranty
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7
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SECTION 2.10
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Termination;
Reinstatement
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7
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SECTION 2.11
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Payments
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8
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ARTICLE III REPRESENTATIONS AND
WARRANTIES
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8
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SECTION 3.1
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Organization;
Power; Qualification
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8
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SECTION 3.2
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Authorization
of Agreement; Enforceability
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8
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SECTION 3.3
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Title;
Liens
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9
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SECTION 3.4
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Litigation
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9
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SECTION 3.5
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Solvency
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9
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ARTICLE IV MISCELLANEOUS
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9
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SECTION 4.1
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Notices
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9
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SECTION 4.2
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Amendments in
Writing
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10
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SECTION 4.3
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Expenses;
Indemnification; Waiver of Consequential Damages, etc.
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10
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SECTION 4.4
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Right of
Set-off
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10
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SECTION 4.5
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Governing Law;
Jurisdiction; Venue; Service of Process
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11
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SECTION 4.6
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Waiver of Jury
Trial
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12
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SECTION 4.7
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No Waiver by
Course of Conduct, Cumulative Remedies
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12
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SECTION 4.8
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Successors and
Assigns
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12
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SECTION 4.9
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Survival of
Indemnities
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12
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SECTION 4.10
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Titles and
Captions
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13
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SECTION 4.11
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Severability of
Provisions
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13
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SECTION 4.12
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Counterparts,
Integration and Effectiveness
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13
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SECTION 4.13
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Advice of
Counsel, No Strict Construction
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13
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SECTION 4.14
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Acknowledgements
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13
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SECTION 4.15
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Releases
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13
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i
PARENT GUARANTY AGREEMENT (as
amended, restated, supplemented or otherwise modified, this “
Parent Guaranty ” or this “ Agreement
”), dated as of March 9 , 2007, is made by
CARROLS RESTAURANT GROUP, INC., a Delaware corporation (the “
Parent Guarantor ”), in favor of WACHOVIA BANK,
NATIONAL ASSOCIATION, as administrative agent (in such capacity,
the “ Agent ”) for the ratable benefit of itself
and the Secured Parties.
STATEMENT OF
PURPOSE
Pursuant to the terms of the Loan
Agreement dated as of even date herewith (as amended, restated,
supplemented or otherwise modified from time to time, the “
Loan Agreement ”) by and among Carrols Corporation, a
Delaware corporation, as borrower (the “ Borrower
”), the financial institutions who are or may become party
thereto (the “ Lenders ”) and the Agent, the
Lenders have agreed to make extensions of credit to the Borrower
upon the terms and subject to the conditions set forth
therein.
The Borrower and the Parent
Guarantor, though separate legal entities, comprise one integrated
financial enterprise, and all extensions of credit to the Borrower
will inure, directly or indirectly to the benefit of the Parent
Guarantor.
It is a condition precedent to the
obligation of the Lenders to make their respective extensions of
credit to the Borrower under the Loan Agreement that the Parent
Guarantor shall have executed and delivered this Parent Guaranty to
the Agent, for the ratable benefit of itself and the Secured
Parties.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, and to induce the Agent
and the Lenders to enter into the Loan Agreement and to induce the
Lenders to make their respective extensions of credit to the
Borrower thereunder, the Parent Guarantor hereby agrees with the
Agent, for the ratable benefit of itself and the Secured Parties,
as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1 Definitions . The
following terms when used in this Parent Guaranty shall have the
meanings assigned to them below:
“ Applicable Insolvency
Laws ” means all Legal Requirements governing bankruptcy,
reorganization, arrangement, adjustment of debts, relief of
debtors, dissolution, insolvency, fraudulent transfers or
conveyances or other similar laws (including, without limitation,
11 U.S.C. Sections 544, 547, 548 and 550 and other
“avoidance” provisions of Title 11 of the United States
Code, as amended or supplemented).
“ Guaranteed
Obligations ” has the meaning set forth in
Section 2.1 .
“ Secured Parties
” means the Agent, each Lender and any counterparty to an
Interest Rate Risk Agreement that is a Lender or an Affiliate of a
Lender at the time such Interest Rate Risk Agreement is
executed.
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“ Subsidiary Guarantor
” means each Subsidiary of the Borrower party to the
Subsidiary Guaranty.
“ Subsidiary Guaranty
” means the Subsidiary Guaranty Agreement, dated as of even
date herewith, made by certain Subsidiaries of the Borrower in
favor of the Agent for the ratable benefit of itself and the
Secured Parties, as amended, restated, supplemented or otherwise
modified.
SECTION 1.2 Other Definitional
Provisions . Capitalized terms used and not otherwise defined
in this Parent Guaranty including the preambles and recitals hereof
shall have the meanings ascribed to them in the Loan Agreement. In
the event of a conflict between capitalized terms defined herein
and in the Loan Agreement, the Loan Agreement shall control. The
words “hereof,” “herein”,
“hereto” and “hereunder” and words of
similar import when used in this Parent Guaranty shall refer to
this Parent Guaranty as a whole and not to any particular provision
of this Parent Guaranty, and Section references are to this Parent
Guaranty unless otherwise specified. The meanings given to terms
defined herein shall be equally applicable to both the singular and
plural forms of such terms. Where the context requires, terms
relating to the Collateral or any part thereof, when used in
relation to the Parent Guarantor, shall refer to the Parent
Guarantor’s Collateral or the relevant part
thereof.
ARTICLE II
GUARANTY
SECTION 2.1 Parent Guaranty .
The Parent Guarantor hereby unconditionally guarantees to the Agent
for the ratable benefit of itself and the Secured Parties, and
their respective permitted successors, endorsees, transferees and
assigns, the prompt payment and performance of:
(a) all Obligations of the Borrower;
and
(b) all liabilities and obligations
of the Parent Guarantor and each of its Subsidiaries with respect
to overdrafts, returned items and related liabilities and all
indemnification obligations under the Loan Documents now or
hereafter owing by any such Person to the Agent or any Lender
arising from or in connection with treasury, depositary or cash
management services or in connection with any automated
clearinghouse transfer of funds for the benefit of such Person, in
each case, whether primary or secondary (whether by way of
endorsement or otherwise), whether now existing or hereafter
arising, whether or not from time to time reduced or extinguished
(except by payment thereof) or hereafter increased or incurred,
whether enforceable or unenforceable as against the Borrower,
whether or not discharged, stayed or otherwise affected by any
Applicable Insolvency Law or proceeding thereunder, whether created
directly with the Agent or any Secured Party or acquired by the
Agent or any Secured Party through assignment or endorsement or
otherwise, whether matured or unmatured, whether joint or several,
as and when the same become due and payable (whether at maturity or
earlier, by reason of acceleration, mandatory repayment or
otherwise), in accordance with the terms of any
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such instruments evidencing any such
obligations, including all renewals, extensions or modifications
thereof (all Obligations of the Borrower, including all of the
foregoing being hereafter collectively referred to as the “
Guaranteed Obligations ”).
SECTION 2.2 Bankruptcy
Limitations on Parent Guarantor . Notwithstanding anything to
the contrary contained in Section 2.1 , it is the
intention of the Parent Guarantor and the Secured Parties that, in
any proceeding involving the bankruptcy, reorganization,
arrangement, adjustment of debts, relief of debtors, dissolution or
insolvency or any similar proceeding with respect to the Parent
Guarantor or its assets, the amount of the Parent Guarantor’s
obligations with respect to the Guaranteed Obligations shall be
equal to, but not in excess of, the maximum amount thereof not
subject to avoidance or recovery by operation of Applicable
Insolvency Laws. To that end, but only in the event and to the
extent that the Parent Guarantor’s obligations with respect
to the Guaranteed Obligations or any payment made pursuant to such
Guaranteed Obligations would, but for the operation of the first
sentence of this Section 2.2 , be subject to avoidance
or recovery in any such proceeding under Applicable Insolvency
Laws, the amount of the Parent Guarantor’s obligations with
respect to the Guaranteed Obligations shall be limited to the
largest amount which, after giving effect thereto, would not, under
Applicable Insolvency Laws, render the Parent Guarantor’s
obligations with respect to the Guaranteed Obligations
unenforceable or avoidable or otherwise subject to recovery under
Applicable Insolvency Laws. To the extent any payment actually made
pursuant to the Guaranteed Obligations exceeds the limitation of
the first sentence of this Section 2.2 and is otherwise
subject to avoidance and recovery in any such proceeding under
Applicable Insolvency Laws, the amount subject to avoidance shall
in all events be limited to the amount by which such actual payment
exceeds such limitation and the Guaranteed Obligations as limited
by the first sentence of this Section 2.2 shall in all
events remain in full force and effect and be fully enforceable
against the Parent Guarantor. The first sentence of this
Section 2.2 is intended solely to preserve the rights
of the Agent hereunder against the Parent Guarantor in such
proceeding to the maximum extent permitted by Applicable Insolvency
Laws and neither the Parent Guarantor, the Borrower, any Subsidiary
Guarantor nor any other Person shall have any right or claim under
such sentence that would not otherwise be available under
Applicable Insolvency Laws in such proceeding.
SECTION 2.3 Agreements Regarding
Subrogation and Reimbursement .
(a) Agreement Regarding
Subrogation . Notwithstanding any payment or payments by the
Parent Guarantor hereunder, or any set-off or application of funds
of the Parent Guarantor by the Agent or any Secured Party, or the
receipt of any amounts by the Agent or any Secured Party with
respect to any of the Guaranteed Obligations, the Parent Guarantor
shall not be entitled to be subrogated to any of the rights of the
Agent or any Secured Party against the Borrower, any of the
Subsidiary Guarantors or any other guarantor of the Guaranteed
Obligations or against any collateral security held by the Agent or
any Secured Party for the payment of the Guaranteed Obligations,
nor shall the Parent Guarantor seek any reimbursement from the
Borrower, any of the Subsidiary Guarantors or any other guarantor
of the Guaranteed Obligations in respect of payments made by the
Parent Guarantor in connection with the Guaranteed Obligations,
until all amounts owing to the Agent and the Secured Parties on
account of the Guaranteed Obligations are paid in full and the
Revolving Loan Commitments are terminated. If any amount shall be
paid to the Parent Guarantor on account of such
subrogation
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rights at any time when all of the Guaranteed
Obligations shall not have been paid in full or the Revolving Loan
Commitments are not terminated, such amount shall be held by the
Parent Guarantor in trust for the Agent, segregated from other
funds of the Parent Guarantor, and shall, forthwith upon receipt by
the Parent Guarantor, be turned over to the Agent in the exact form
received by the Parent Guarantor (duly endorsed by the Parent
Guarantor to the Agent, if required) to be applied against the
Guaranteed Obligations, whether matured or unmatured, in such order
as set forth in the Loan Agreement.
(b) Agreement Regarding
Reimbursement . Notwithstanding anything to the contrary
contained herein, the parties hereto acknowledge and agree that, as
the Borrower is a wholly-owned Subsidiary of the Parent Guarantor
and part of an integrated financial enterprise to which the Parent
Guarantor and each Subsidiary Guarantor is a party, each Subsidiary
Guarantor shall have a right of reimbursement and indemnity from
the Parent Guarantor for any amount paid by such Subsidiary
Guarantor in lieu of a right of contribution between the Subsidiary
Guarantors and the Parent Guarantor.
SECTION 2.4 Nature of Parent
Guaranty .
(a) The Parent Guarantor agrees that
this Parent Guaranty is a continuing, unconditional guaranty of
payment and performance and not of collection, and that its
obligations under this Parent Guaranty shall be primary, absolute
and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity,
regularity, enforceability or any future amendment of, or change
in, the Loan Agreement or any other Loan Document or any other
agreement, document or instrument to which the Parent Guarantor,
the Borrower or any Subsidiary Guarantor is or may become a
party;
(ii) the absence of any action to
enforce this Parent Guaranty, the Loan Agreement or any other Loan
Document or the waiver or consent by the Agent or any Secured Party
with respect to any of the provisions of this Parent Guaranty, the
Loan Agreement or any other Loan Document;
(iii) the existence, value or
condition of, or failure to perfect its Lien against, any security
for or other guaranty of the Guaranteed Obligations or any action,
or the absence of any action, by the Agent or any Secured Party in
respect of such security or guaranty (including, without
limitation, the release of any such security or guaranty);
or
(iv) any other action or
circumstances which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor;
it being agreed by the Parent
Guarantor that, subject to the first sentence of
Section 2.2 , its obligations under this Parent
Guaranty shall not be discharged until the final indefeasible
payment and performance, in full, of all of the Guaranteed
Obligations and the termination of the Revolving Loan
Commitments.
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(b) The Parent Guarantor represents,
warrants and agrees that its obligations under this Parent Guaranty
are not and shall not be subject to any counterclaims, offsets or
defenses of any kind (other than the defense of payment) against
the Agent, any Secured Party, the Borrower or any Subsidiary
Guarantor whether now existing or which may arise in the
future.
(c) The Parent Guarantor hereby
agrees and acknowledges that the Guaranteed Obligations, and any of
them, shall conclusively be deemed to have been created, contracted
or incurred, or renewed, extended, amended or waived, in reliance
upon this Parent Guaranty, and all dealings between the Borrower
and the Parent Guarantor, on the one hand, and the Agent and the
Secured Parties, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon this
Parent Guaranty.
SECTION 2.5 Waivers . To the
extent permitted by law, the Parent Guarantor expressly waives all
of the following rights and defenses (and agrees not to take
advantage of or assert any such right or defense):
(a) any rights it may now or in the
future have under any statute, or at law or in equity, or
otherwise, to compel the Agent or any Lender to proceed in respect
of the Guaranteed Obligations against the Borrower, the Subsidiary
Guarantors or any other Person or against any security for or other
guaranty of the payment and performance of the Guaranteed
Obligations before proceeding against, or as a condition to
proceeding against, the Parent Guarantor;
(b) any defense based upon the
failure of the Agent or any Secured Party to commence an action in
respect of the Guaranteed Obligations against the Parent Guarantor,
the Borrower, any of the Subsidiary Guarantors, any other guarantor
of the Guaranteed Obligations or any other Person or any security
for the payment and performance of the Guaranteed
Obligations;
(c) any right to insist upon, plead
or in any manner whatever claim or take the benefit or advantage
of, any appraisal, valuation, stay, extension, marshalling of
assets or redemption laws, or exemption, whether now or at any time
hereafter in force, which may delay, prevent or otherwise affect
the performance by the Parent Guarantor of its obligations under,
or the enforcement by the Agent or the Secured Parties of this
Parent Guaranty;
(d) any right of diligence,
presentment, demand, protest and notice (except as specifically
required herein) of whatever kind or nature with respect to any of
the Guaranteed Obligations and waives, to the extent permitted by
any Legal Requirement, the benefit of all provisions of law which
are or might be in conflict with the terms of this Parent Guaranty;
and
(e) any and all right to notice of
the creation, renewal, extension or accrual of any of the
Guaranteed Obligations and notice of or proof of reliance by the
Agent or any Secured Party upon, or acceptance of, this Parent
Guaranty.
The Parent Guarantor agrees that any
notice or directive given at any time to the Agent or any Secured
Party which is inconsistent with any of the foregoing waivers shall
be null and void and may be ignored by the Agent or such Secured
Party, and, in addition, may not be pleaded or introduced as
evidence in any litigation relating to this Parent Guaranty for the
reason that such pleading or introduction would be at variance with
the written terms of this Parent Guaranty,
5
unless the Agent and the Majority Lenders have
specifically agreed otherwise in writing. The foregoing waivers are
of the essence of the transaction contemplated by the Loan
Agreement and the other Loan Documents and