Exhibit 10.9
PAYMENT AND THE
EXERCISE OF REMEDIES WITH RESPECT TO THIS GUARANTY WILL BE SUBJECT
TO THE TERMS AND PROVISIONS SET FORTH IN THE SUBORDINATION
PROVISIONS SET FORTH IN SECTION 8 HEREIN, AND PAYMENT WITH
RESPECT TO THIS GUARANTY IS SUBORDINATE IN RIGHT OF PAYMENT TO
SENIOR DEBT (AS DEFINED BELOW).
SUBORDINATED GUARANTY
This SUBORDINATED GUARANTY (as amended,
restated, supplemented or otherwise modified from time to time,
this “ Guaranty ”), dated as of
February 22, 2008, is made by the persons listed on the
signature pages hereof under the caption “ Subsidiary
Guarantors ” and the Additional Guarantors (as defined in
Section 16(b)) (such persons so listed and the Additional
Guarantors being, collectively, the “ Guarantors
” and, individually, each a “ Guarantor ”)
in favor of the Holder (as defined below).
PRELIMINARY STATEMENT. Aldabra 2 Acquisition
Corp., a Delaware corporation (to be renamed as Boise Inc.) (the
“ Borrower ”), has issued and delivered a
Promissory Note, dated the date hereof (as amended, restated,
supplemented or otherwise modified from time to time, the “
Note ”) in favor of Boise Cascade, L.L.C., a Delaware
limited liability company (“ BC LLC ”; BC LLC,
together with its registered assigns or transferees, collectively,
the “ Holder ”). Capitalized terms used,
but not otherwise defined, herein shall have the meanings given to
such terms in the Note. Each Guarantor will derive
substantial direct and indirect benefits from the transactions
contemplated by the Note. It is a requirement of the Note
that each Guarantor shall have executed and delivered this
Guaranty.
NOW, THEREFORE, in consideration of the
premises and in order to induce BC LLC to accept the Note, each
Guarantor, jointly and severally with each other Guarantor, hereby
agrees as follows:
1.
Guaranty of Obligations . Subject to the provisions of
Section 2 of this Guaranty, Guarantors jointly and severally
hereby irrevocably and unconditionally guarantee to Holder the due
and punctual payment in full of all obligations of every nature of
the Borrower under the Note, whether for principal, interest
(including interest which, but for the filing of a petition in
bankruptcy with respect to the Borrower would have accrued thereon,
whether or not a claim is allowed against the Borrower for such
interest in the related bankruptcy proceeding), fees, expenses,
indemnification or otherwise, in each case when the same shall
become due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including amounts
that would become due but for the operation of the automatic stay
under Section 362(a) of the Bankruptcy Code, 11 U.S.C.
§ 362(a)) (collectively, the “ Guaranteed
Obligations ”).
2.
Contribution by Guarantors . All Guarantors desire to
allocate among themselves (collectively, the “
Contributing Guarantors ”), in a fair and equitable
manner, their obligations arising under this Guaranty.
Accordingly, in the event any payment or distribution is made on
any date by a Guarantor (a “ Funding Guarantor
”) under this Guaranty such that its Aggregate Payments
exceeds its Fair Share as of such date, such Funding Guarantor
shall be entitled to a contribution from each of the other
Contributing Guarantors in an amount sufficient to cause each
Contributing Guarantor’s Aggregate Payments to equal its Fair
Share as of such date. “ Fair Share ”
means, with respect to a Contributing Guarantor as of any date of
determination, an amount equal to (a) the ratio of
(i) the Fair Share Contribution Amount with respect to such
Contributing Guarantor to (ii) the aggregate of the Fair Share
Contribution Amounts with respect to all Contributing Guarantors
multiplied by (b) the aggregate amount paid or distributed on
or before such date by all Funding Guarantors under this Guaranty
in respect of the
obligations Guaranteed. “ Fair
Share Contribution Amount ” means, with respect to a
Contributing Guarantor as of any date of determination, the maximum
aggregate amount of the obligations of such Contributing Guarantor
under this Guaranty that would not render its obligations hereunder
or thereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of Title 11 of the United States
Code (together with any successor statutes, the “
Bankruptcy Code ”) or any comparable applicable
provisions of state law; provided , that solely for purposes
of calculating the “Fair Share Contribution Amount”
with respect to any Contributing Guarantor for purposes of this
Section 2, any assets or liabilities of such Contributing
Guarantor arising by virtue of any rights to subrogation,
reimbursement or indemnification or any rights to or obligations of
contribution hereunder shall not be considered as assets or
liabilities of such Contributing Guarantor. “
Aggregate Payments ” means, with respect to a
Contributing Guarantor as of any date of determination, an amount
equal to (1) the aggregate amount of all payments and
distributions made on or before such date by such Contributing
Guarantor in respect of this Guaranty (including in respect of this
Section 2), minus (2) the aggregate amount of all
payments received on or before such date by such Contributing
Guarantor from the other Contributing Guarantors as contributions
under this Section 2. The amounts payable as
contributions hereunder shall be determined as of the date on which
the related payment or distribution is made by the applicable
Funding Guarantor. The allocation among Contributing
Guarantors of their obligations as set forth in this Section 2
shall not be construed in any way to limit the liability of any
Contributing Guarantor hereunder. Each Guarantor is a third
party beneficiary to the contribution agreement set forth in this
Section 2.
3.
Payment by Guarantors . Subject to Section 2,
Guarantors hereby jointly and severally agree, in furtherance of
the foregoing and not in limitation of any other right which Holder
may have at law or in equity against any Guarantor by virtue
hereof, that upon the failure of Borrower to pay any of the
Guaranteed Obligations when and as the same shall become due,
whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would
become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code, Guarantors
will upon demand pay, or cause to be paid, in cash, to Holder, an
amount equal to the sum of the unpaid principal amount of all
Guaranteed Obligations then due as aforesaid, accrued and unpaid
interest on such Guaranteed Obligations (including interest which,
but for Borrower’s becoming the subject of a case under the
Bankruptcy Code, would have accrued on such Guaranteed Obligations,
whether or not a claim is allowed against Borrower for such
interest in the related bankruptcy case) and all other Guaranteed
Obligations then owed to Holder as aforesaid.
4.
Liability of Guarantors Absolute . Each Guarantor
agrees that its obligations hereunder are irrevocable, absolute,
independent and unconditional and shall not be affected by any
circumstance which constitutes a legal or equitable discharge of a
guarantor or surety other than payment in full of the Guaranteed
Obligations (other than contingent obligations for which no claim
has been made). In furtherance of the foregoing and without
limiting the generality thereof, each Guarantor agrees as
follows:
(a)
this Guaranty is a guaranty of payment when due and not of
collectability;
(b)
this Guaranty is a primary obligation of each Guarantor and not
merely a contract of surety;
(c) Holder may enforce this
Guaranty upon the occurrence of an Event of Default notwithstanding
the existence of any dispute between Borrower and Holder with
respect to the existence of such Event of Default;
(d)
the obligations of each Guarantor hereunder are independent of the
obligations of Borrower and the obligations of any other guarantor
(including any other Guarantor) of the obligations of Borrower, and
a separate action or actions may be brought and prosecuted against
such Guarantor
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whether or not any action is brought against
Borrower or any of such other guarantors and whether or not
Borrower is joined in any such action or actions;
(e)
payment by any Guarantor of a portion, but not all, of the
Guaranteed Obligations shall in no way limit, affect, modify or
abridge any Guarantor’s liability for any portion of the
Guaranteed Obligations which has not been paid; without limiting
the generality of the foregoing, if Holder is awarded a judgment in
any suit brought to enforce any Guarantor’s covenant to pay a
portion of the Guaranteed Obligations, such judgment shall not be
deemed to release such Guarantor from its covenant to pay the
portion of the Guaranteed Obligations that is not the subject of
such suit, and such judgment shall not, except to the extent
satisfied by such Guarantor, limit, affect, modify or abridge any
other Guarantor’s liability hereunder in respect of the
Guaranteed Obligations;
(f)
Holder, upon such terms as it deems appropriate, without notice or
demand and without affecting the validity or enforceability hereof
or giving rise to any reduction, limitation, impairment, discharge
or termination of any Guarantor’s liability hereunder, from
time to time may (i) renew, extend, accelerate, increase the
rate of interest on, or otherwise change the time, place, manner or
terms of payment of the Guaranteed Obligations; (ii) settle,
compromise, release or discharge, or accept or refuse any offer of
performance with respect to, or substitutions for, the Guaranteed
Obligations or any agreement relating thereto and/or subordinate
the payment of the same to the payment of any other obligations;
(iii) request and accept other guaranties of the Guaranteed
Obligations and take and hold security for the payment hereof or
the Guaranteed Obligations; (iv) release, surrender, exchange,
substitute, compromise, settle, rescind, waive, alter, subordinate
or modify, with or without consideration, any security for payment
of the Guaranteed Obligations, any other guaranties of the
Guaranteed Obligations, or any other obligation of any Person
(including any other Guarantor) with respect to the Guaranteed
Obligations; (v) enforce and apply any security now or
hereafter held by or for the benefit of Holder in respect hereof or
the Guaranteed Obligations and direct the order or manner of sale
thereof, or exercise any other right or remedy that Holder may have
against any such security, in each case as Holder in its discretion
may determine consistent herewith and with any applicable security
agreement, including foreclosure on any such security pursuant to
one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable, and even though
such action operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of any
Guarantor against Borrower or any security for the Guaranteed
Obligations; and (vi) exercise any other rights available to
it under the Note or any related documents (collectively, the
“ Note Documents ”); and
(g)
this Guaranty and the obligations of Guarantors hereunder shall be
valid and enforceable and shall not be subject to any reduction,
limitation, impairment, discharge or termination for any reason
(other than payment in full of the Guaranteed Obligations (other
than contingent obligations for which no claim has been made)),
including the occurrence of any of the following, whether or not
any Guarantor shall have had notice or knowledge of any of them:
(i) any failure or omission to assert or enforce or agreement
or election not to assert or enforce, or the stay or enjoining, by
order of court, by operation of law or otherwise, of the exercise
or enforcement of, any claim or demand or any right, power or
remedy (whether arising under the Note Documents, at law, in equity
or otherwise) with respect to the Guaranteed Obligations or any
agreement relating thereto, or with respect to any other guaranty
of or security for the payment of the Guaranteed Obligations;
(ii) any rescission, waiver, amendment or modification of, or
any consent to departure from, any of the terms or provisions
(including provisions relating to events of default) hereof, of any
of the Note Documents or any agreement or instrument executed
pursuant thereto, or of any other guaranty or security for the
Guaranteed Obligations, in each case whether or not in accordance
with the terms hereof or of the Note Documents or any agreement
relating to such other guaranty or security; (iii) the
Guaranteed Obligations, or any agreement relating thereto, at any
time being found to be illegal, invalid or unenforceable in any
respect; (iv) the application of payments received from any
source (other than payments received pursuant to the Note Documents
or
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from the proceeds of any security for the
Guaranteed Obligations, except to the extent such security also
serves as collateral for indebtedness other than the Guaranteed
Obligations) to the payment of indebtedness other than the
Guaranteed Obligations, even though Holder might have elected to
apply such payment to any part or all of the Guaranteed
Obligations; (v) Holder’s consent to the change,
reorganization or termination of the corporate structure or
existence of Parent Sub or any of its Subsidiaries and to any
corresponding restructuring of the Guaranteed Obligations;
(vi) any failure to perfect or continue perfection of a
security interest in any collateral which secures any of the
Guaranteed Obligations; (vii) any defenses (other than payment
in full of the Guaranteed Obligations (other than contingent
obligations for which no claim has been made)), set offs or
counterclaims which Borrower may allege or assert against Holder in
respect of the Guaranteed Obligations, including failure of
consideration, breach of warranty, payment, statute of frauds,
statute of limitations, accord and satisfaction and usury; and
(viii) any other act or thing or omission, or delay to do any
other act or thing, which may or might in any manner or to any
extent vary the risk of any Guarantor as an obligor in respect of
the Guaranteed Obligations.
5.
Waivers by Guarantors . Each Guarantor hereby waives,
to the extent permitted by applicable law, for the benefit of
Holder: (a) any right to require Holder, as a condition of
payment or performance by such Guarantor, to (i) proceed
against Borrower, any other guarantor (including any other
Guarantor) of the Guaranteed Obligations or any other Person,
(ii) proceed against or exhaust any security held from
Borrower, any such other guarantor or any other Person,
(iii) proceed against or have resort to any balance of any
deposit account or credit on the books of Holder in favor of
Borrower or any other Person, or (iv) pursue any other remedy
in the power of Holder whatsoever; (b) any defense arising by
reason of the incapacity, lack of authority or any disability or
other defense of Borrower or any other Guarantor including any
defense based on or arising out of the lack of validity or the
unenforceability of the Guaranteed Obligations or any agreement or
instrument relating thereto or by reason of the cessation of the
liability of Borrower or any other Guarantor from any cause other
than payment in full of the Guaranteed Obligations (other than
contingent obligations for which no claim has been made);
(c) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than that of
the principal; (d) any defense based upon Holder’s
errors or omissions in the administration of the Guaranteed
Obligations, except behavior which amounts to gross negligence, bad
faith or willful misconduct; (e) (i) any principles or
provisions of law, statutory or otherwise, which are or might be in
conflict with the terms hereof and any legal or equitable discharge
of such Guarantor’s obligations hereunder, (ii) the
benefit of any statute of limitations affecting such
Guarantor’s liability hereunder or the enforcement hereof,
(iii) any rights to set offs, recoupments and counterclaims,
and (iv) promptness, diligence and any requirement that Holder
protect, secure, perfect or insure any security interest or lien or
any property subject thereto; (f) notices, demands,
presentments, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance hereof,
notices of default hereunder or under any agreement or instrument
related thereto, notices of any renewal, extension or modification
of the Guaranteed Obligations or any agreement related thereto,
notices of any extension of credit to Borrower and notices of any
of the matters referred to in Section 4 and any right to
consent to any thereof; and (g) any defenses or benefits that
may be derived from or afforded by law which limit the liability of
or exonerate guarantors or sureties, or which may conflict with the
terms hereof.
6.
Guarantors’ Rights of Subrogation, Contribution, etc.
Until the Guaranteed Obligations (other than contingent
obligations for which no claim has been made) shall have been paid
in full, each Guarantor hereby waives, to the extent permitted by
applicable law, its right to enforce any claim, right or remedy,
direct or indirect, that such Guarantor now has or may hereafter
have against Borrower or any other Guarantor or any of its assets
in connection with this Guaranty or the performance by such
Guarantor of its obligations hereunder, in each case whether such
claim, right or remedy arises in equity, under contract, by
statute, under common law or otherwise and including (a) any
right of subrogation,
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reimbursement or indemnification that such
Guarantor now has or may hereafter have against Borrower with
respect to the Guaranteed Obligations, (b) any right to
enforce, or to participate in, any claim, right or remedy that
Holder now has or may hereafter have against Borrower, and
(c) any benefit of, and any right to participate in, any
collateral or security now or hereafter held by Holder. In
addition, until the Guaranteed Obligations (other than contingent
obligations for which no claim has been made) shall have been paid
in full, each Guarantor shall withhold exercise of any right of
contribution such Guarantor may have against any other guarantor
(including any other Guarantor) of the Guaranteed Obligations,
including any such right of contribution as contemplated by
Section 2. Each Guarantor further agrees that, to the
extent the waiver or agreement to withhold the exercise of its
rights of subrogation, reimbursement, indemnification and
contribution as set forth herein is found by a court of competent
jurisdiction to be void or voidable for any reason, any rights of
subrogation, reimbursement or indemnification such Guarantor may
have against Borrower or against any collateral or security, and
any rights of contribution such Guarantor may have against any such
other guarantor, shall be junior and subordinate to any rights
Holder may have against Borrower, to all right, title and interest
Holder may have in any such collateral or security, and to any
right Holder may have against such other guarantor. If any
amount shall be paid to any Guarantor on account of any such
subrogation, reimbursement, indemnification or contribution rights
at any time when all Guaranteed Obligations (other than contingent
obligations for which no claim has been made) shall not have been
paid in full, such amount shall be held in trust for Holder and
shall forthwith be paid over to Holder to be credited and applied
against the Guaranteed Obligations, whether matured or unmatured,
in accordance with the terms hereof.
7.
Subordination of Other Obligations . Any Indebtedness
of Borrower or any Guarantor now or hereafter held by any Guarantor
(the “ Obligee Guarantor ”) is hereby
subordinated in right of payment to the Guaranteed Obligations, and
any such Indebtedness collected or received by the Obligee
Guarantor after an Event of Default has occurred and is continuing
shall be held in trust for Holder and shall forthwith be paid over
to Holder to be credited and applied against the Guaranteed
Obligations but without affecting, impairing or limiting in any
manner the liability of the Obligee Guarantor under any other
provision hereof.
8.
Subordination to Senior Debt .
(a)
Holder, by accepting this Guaranty, agrees that this Guaranty and
the obligations of each Guarantor hereunder shall be subordinated
in right of payment to all Senior Debt to the extent and in the
manner provided in this Section 8. “ Senior
Debt ” means all principal of, premium (if any), interest
(including interest which, but for the filing of a petition in
bankruptcy with respect to the Borrower would have accrued thereon,
whether or not a claim is allowed against the Borrower for such
interest in the related bankruptcy proceeding) on, and any and all
other fees, expense reimbursement obligations, and other amounts
due pursuant to the terms of (i) the 1st Lien Loan Agreement
and the “Credit Documents” (as such term or any similar
term is defined in the 1st Lien Loan Agreement) (collectively, the
“ 1st Lien Loan Documents ”) and (ii) the
2nd Lien Loan Agreement and the “Credi
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