Gentlemen. Reference is made to that certain Loan and Security Agreement, dated July __, 1997 (as may be amended, modified or supplemented from time to time, the "Agreement"; capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Agreement), between the Lenders listed in the Agreement (and any amendments or supplements thereto) and you, as Lender and agent for the Lenders (you and the Lenders sometimes referred to herein as, the "Secured Parties"), and the Companies. Each of the undersigned (herein each a "Guarantor" and collectively the "Guarantors") hereby unconditionally jointly and severally guarantees and agrees to be liable for the prompt, full and indefeasible payment and performance when due of all now existing and future indebtedness, obligations or liabilities of the Companies to the Secured Parties, howsoever arising, whether direct or indirect, absolute or contingent, secured or unsecured, whether arising under the Agreement, the Note or the other documents executed and delivered in connection with the Agreement, as now written or as amended or supplemented hereafter, or by operation of law or otherwise, including, without limitation, all Secured Obligations of the Companies to the Secured Parties. Furthermore each of the Guarantors agrees to pay to you, as agent for the Secured Parties, on demand the amount of all expenses (including reasonable attorney's fees) incurred by you or any of the Secured Parties in collecting or attempting to collect any of the Companies' Obligations to the Secured Parties, whether from the Companies, or from any other obligor, or from the Guarantors, or in realizing upon any collateral; and agrees to pay any interest at the highest lawful rate on all amounts payable to you, as agent for the Secured Parties, or the Secured Parties hereunder, even if such amount cannot be collected from the Companies. (All of the aforementioned obligations, liabilities, expenses and interest are hereinafter collectively called the "Guaranteed Obligations"). To the extent you receive payment, for the benefit of the Secured Parties, on account of the Guaranteed Obligations, which payment is thereafter set aside or required to be repaid by you or the Secured Parties in whole or in part, then, to the extent of any sum not finally retained by you or the Secured Parties (regardless of whether such sum is recovered from you or the Secured Parties by the Companies, its trustee, or any other party acting for, on behalf of or through the Companies or its representative), the Guarantors' obligation to you, as agent for the Secured Parties, and the Secured Parties under this Guaranty, as amended, modified or supplemented, shall remain in full force and effect (or be reinstated) until the Guarantors have made payment in full to you, for the benefit of the Secured Parties, therefor, which payment shall be due upon demand. This Guaranty is executed as an inducement to the Secured Parties to make loans or advances to the Companies or otherwise to extend credit or financial accommodations to the Companies, or to enter into or continue a financing arrangement with the Companies, and is executed in consideration of the Secured Parties doing or having done any of the foregoing. Each of the Guarantors agrees that any of the foregoing shall be done or extended by the Secured Parties, in their sole discretion, and shall be deemed to have been done or extended by the Secured Parties in consideration of and in reliance upon the execution of this Guaranty, but that nothing herein shall obligate the Secured Parties, to do any of the foregoing. Notice of acceptance of this Guaranty, the making of loans or advances, or the extension of credit under the Agreement, the amendment, execution or termination of the Agreement or any other agreements in connection therewith, and presentment, demand, protest, notice of protest, notice of non-payment and all other notices to which the Guarantors may be entitled (whether under this Guaranty or the Agreement), and your reliance on this Guaranty are hereby waived. Each of the Guarantors (a) waives notice of (i) changes in terms or extensions of the time of payment, (ii) the taking and releasing of collateral or guarantees (including the release of any of the Guarantors) and (iii) the settlement, compromise or release of any Guaranteed Obligations, and agrees that, as to each of the Guarantors, the amount of the Guaranteed Obligations shall not be diminished by any any of the foregoing; (b) waives any necessity, whether substantive or procedural, that judgment previously be rendered against the Companies or any other person or that the Companies or any person be joined in such cause, or that separate action be brought against the Companies or any other person; (c) waives any right to assert in any action or proceeding on this Guaranty any offsets, counterclaims or defenses (except payment) including, without limitation, defenses of Statute of Limitations and laches; (d) waives the performance of each and every condition precedent to which the Guarantors might otherwise be entitled by law; and (e) waives each and every right to which it may be entitled by virtue of applicable suretyship law to the full extent that such a law permits or does not forbid such waiver You shall not be required to mitigate damages or take any other action to reduce, collect or enforce the obligations or any Collateral therefore. Each of the Guarantors agrees that neither you, as agent for the Secured Parties, nor the Secured Parties need attempt to collect any Guaranteed Obligations from the other Guarantors or any other obligor or to realize upon any collateral, but may require the Guarantors to make immediate payment of Guaranteed Obligations to you when due or at any time thereafter. Neither you nor the Secured Parties shall be liable for failure to collect Guaranteed Obligations or to realize upon any collateral or security therefor, or any part thereof, or for any delay in so doing, nor shall you or any of the Secured Parties be under any obligation to take any action whatsoever with regard thereto. This Guaranty is absolute, unconditional and continuing, regardless of the validity, regularity or enforceability of any of the Guaranteed Obligations or the fact that a security interest or lien in any collateral or security therefor may not be enforceable by you, for the benefit of the Secured Parties, or may otherwise be subject to equities or defenses or prior claims in favor of others or may be invalid or defective in any way and for any reason, including any action, or failure to act, on your part. The liability of the Guarantors under this Guaranty shall be unaffected by the death of any of the Guarantors. Payment by the Guarantors shall be made to you, for the benefit of the Secured Parties, at your office from time to time on demand as Guaranteed Obligations become due, and one or more successive or concurrent actions may be brought hereon against the Guarantors (or any one or more of them) either in the same action or in separate actions. In the event any claim or action, or action on any judgment, based on this Guaranty, is made or brought against the Guarantors, the Guarantors agree not to assert against you or any of the Secured Parties any set-off or counterclaim which the Companies may have, and, further, the Guarantors agree not to deduct, set-off, or seek to counterclaim for or recoup, any amounts which are or may be owed by you or any of the Secured Parties to the Guarantors, or for any loss of contribution from any other Guarantor. Each of the Guarantors represents, warrants and covenants to you, as agent for the Secured Parties, as an inducement to the Secured Parties to extend credit or provide financial accommodations to the Companies or on the Companies' behalf (i) that as of the date of this Guaranty, the fair saleable value of each of the Guarantor's assets exceeds its respective liabilities; (ii) that each Guarantor is meeting current liabilities as they mature; (iii) that the financial statements of each Guarantor furnished to you are true and correct and include in the footnotes thereto all contingent liabilities of each Guarantor and since the date of said financial statements there has been no material or adverse change in the financial condition, business, operations, assets or prospects of any of the Guarantors; (iv) that there are not now pending any material court or administrative proceedings or undischarged judgments against any of the Guarantors and no federal or state tax liens have been filed or threatened against any of the Guarantors nor is any Guarantor in default or claimed default under any agreement for borrowed money; (v) that each of the Guarantors shall immediately give you written notice of any material adverse change in its financial condition, including but not limited to a litigation commenced, tax liens filed, defaults claimed under its indebtedness for borrowed money or bankruptcy proceedings, that is by or against any Guarantor; (vi) that each of the Guarantors shall at such reasonable times as you request furnish its current financial statements to you and permit you or your representatives to inspect any and all of the Guarantors' offices each of the Guarantors' financial records and properties and make extracts therefrom in order to evaluate the financial condition of each Guarantor; (vii) that none of the Guarantors shall (A) mortgage, assign, pledge, transfer or otherwise permit any lien, charge, security interest, encumbrance or judgment to exist on any of its assets or goods, whether real or personal or mixed, whether now owned or hereafter acquired; (B) incur or create any Indebtedness; (C) assume, guarantee, endorse, or otherwise become liable upon the obligations of any person, firm, entity or corporation, (D) make any advance or loan to or any investment in any firm, entity, person, corporation or joint venture; (E) without your prior written consent, will not contract for, purchase, make expenditures for, lease pursuant to a Lease or otherwise incur obligations with respect to Capital Expenditures; and (viii) that this Guaranty has been duly authorized, executed and delivered by each Guarantor and constitutes the legal, valid and binding obligation of each Guarantor enforceable in accordance with its terms and does not and will not violate or conflict with the Certificate of Incorporation, By-Laws, any agreement by which the Guarantors are bound or any rule of law, regulation or judgment to which any of the Guarantors is subject, nor is any consent or approval, which has not been received, required in connection with the execution, delivery, performance, validity or enforceability of this Guaranty. Each of the Guarantors represents and warrants that it has derived or expects to derive a financial or other benefit commensurate with the liability incurred by each of the Guarantors hereunder, from the obligations incurred and to be incurred by the Companies. All sums at any time to the credit of the Guarantors and any property of the Guarantors on which you, for the benefit of the Secured Parties, at any time have a lien or security interest, or of which you, as agent for the Secured Parties, at any time have possession, shall secure payment and performance of all Guaranteed Obligations and any and all other obligations of the Guarantors to you, as agent for the Secured Parties, however arising. Each of the Guarantors agrees that if any notification of intended disposition of collateral or of any other act by you is required by law and if a specific time period is not stated therein, such notification, if mailed by first class mail at least five days before such disposition or act, postage pre-paid, addressed to the Guarantors at the address set forth for the Companies in the Agreement or at any other address of the Guarantors appearing on your records, shall be deemed reasonably and properly given. The Guarantors shall have no right of subrogation, indemnification or recourse to any Guaranteed Obligations or collateral or guarantees therefor, or to any assets of the Companies. Upon the occurrence of any of the following events:
Appears in 2 contracts
Samples: Loan and Security Agreement (Trism Inc /De/), Loan and Security Agreement (Trism Inc /De/)
Gentlemen. Reference is made to that certain Loan the Bottler’s Agreement entered into among The Coca-Cola Company, The Coca-Cola Export Corporation and Security Agreementyou with an effective date of [INSERT], dated July __, 1997 2010 (as may be amended, modified or supplemented from time to time, the "Agreement"; capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Agreement), between the Lenders listed in the Agreement (and any amendments or supplements thereto) and you, as Lender and agent for the Lenders (you and the Lenders sometimes hereinafter referred to as the “Agreement”). We hereby authorize you to use the trademark COCA-COLA in your corporate name: “[COMPANY NAME]” The authorization granted herein as, the "Secured Parties"), and the Companies. Each will expire automatically upon expiration or termination of the undersigned (herein each a "Guarantor" and collectively the "Guarantors") hereby unconditionally jointly and severally guarantees and agrees to be liable for the prompt, full and indefeasible payment and performance when due of all now existing and future indebtedness, obligations or liabilities of the Companies to the Secured Parties, howsoever arising, whether direct or indirect, absolute or contingent, secured or unsecured, whether arising under the Agreement, the Note or the other documents executed and delivered is revocable by us in connection with the Agreementour absolute discretion, as now written or as amended or supplemented hereafter, or by operation of law or otherwise, including, without limitation, all Secured Obligations of the Companies to the Secured Parties. Furthermore each of the Guarantors agrees to pay to you, as agent for the Secured Parties, on demand the amount of all expenses (including reasonable attorney's fees) incurred by you or any of the Secured Parties in collecting or attempting to collect any of the Companies' Obligations to the Secured Parties, whether from the Companies, or from any other obligor, or from the Guarantors, or in realizing upon any collateral; and agrees to pay any interest at the highest lawful rate on all amounts payable to you, as agent for the Secured Parties, or the Secured Parties hereunder, even if such amount cannot be collected from the Companies. (All of the aforementioned obligations, liabilities, expenses and interest are hereinafter collectively called the "Guaranteed Obligations"). To the extent you receive payment, for the benefit of the Secured Parties, on account of the Guaranteed Obligations, which payment is thereafter set aside or required to be repaid by you or the Secured Parties in whole or in part, then, to the extent of any sum not finally retained by you or the Secured Parties upon ninety (regardless of whether such sum is recovered from you or the Secured Parties by the Companies, its trustee, or any other party acting for, on behalf of or through the Companies or its representative), the Guarantors' obligation to you, as agent for the Secured Parties, and the Secured Parties under this Guaranty, as amended, modified or supplemented, shall remain in full force and effect (or be reinstated90) until the Guarantors have made payment in full to you, for the benefit of the Secured Parties, therefor, which payment shall be due upon demanddays’ written notice. This Guaranty is executed as an inducement to the Secured Parties to make loans or advances to the Companies or otherwise to extend credit or financial accommodations to the Companies, or to enter into or continue a financing arrangement with the Companies, and is executed in consideration of the Secured Parties doing or having done any of the foregoing. Each of the Guarantors agrees that any of the foregoing shall be done or extended by the Secured Parties, in their sole discretion, and shall be deemed to have been done or extended by the Secured Parties in consideration of and in reliance upon the execution of this Guaranty, but that nothing herein shall obligate the Secured Parties, to do any of the foregoing. Notice of acceptance of this Guaranty, the making of loans or advances, or the extension of credit under the Agreement, the amendment, execution Upon expiration or termination of the Agreement or revocation of this Authorization, [COMPANY NAME] shall take any and all affirmative steps to delete “Coca-Cola” from its corporate name and to amend any other agreements reference to “Coca-Cola” in connection therewith, and presentment, demand, protest, notice of protest, notice of non-payment any and all other notices to which the Guarantors may be entitled (whether under this Guaranty statements or the Agreement)documents including government licenses, and your reliance on this Guaranty are hereby waived. Each of the Guarantors (a) waives notice of (i) changes in terms or extensions of the time of payment, (ii) the taking and releasing of collateral or guarantees (including the release of any of the Guarantors) and (iii) the settlement, compromise or release of any Guaranteed Obligations, and agrees that, as to each of the Guarantors, the amount of the Guaranteed Obligations shall not be diminished by any any of the foregoing; (b) waives any necessity, whether substantive or procedural, that judgment previously be rendered against the Companies registrations or any other person or records. Nothing contained herein shall give you any interest in the goodwill derived from the use of the trademark COCA-COLA in your corporate name. It is hereby expressly agreed and understood that there is extended only a permission uncoupled with any interest to use the Companies or any person be joined in such causetrademark COCA-COLA, or and that separate action be brought against we retain the Companies or any other person; (c) waives any sole and exclusive right to assert initiate and defend any or all proceedings and actions relating to such trademark. Sincerely, THE COCA-COLA COMPANY By: Authorized Representative Date: ACCEPTED BY: [COMPANY NAME] By: Authorized Representative Date: EXHIBIT II FORM OF BOTTLER’S AGREEMENT Exhibit II-1 Bottler’s Agreement THIS AGREEMENT, made and entered into with effect from , by and among THE COCA-COLA COMPANY, a corporation organized and existing under the laws of the State of Delaware, United States of America, with principal offices at One Coca-Cola Plaza, N.W., in any action the City of Xxxxxxx, Xxxxx xx Xxxxxxx 00000, Xxxxxx Xxxxxx of America; THE COCA-COLA EXPORT CORPORATION, a corporation organized and existing under the laws of the State of Delaware, United States of America, with principal offices at One Coca-Cola Plaza, N.W., in the City of Xxxxxxx, Xxxxx xx Xxxxxxx 00000, Xxxxxx Xxxxxx of America (The Coca-Cola Company and The Coca-Cola Export Corporation hereinafter collectively or proceeding on this Guaranty any offsets, counterclaims or defenses (except payment) including, without limitation, defenses of Statute of Limitations and laches; (d) waives severally referred to as the performance of each and every condition precedent to which the Guarantors might “Company” unless otherwise be entitled by lawspecified); and , a corporation organized and existing under the laws of , with principal offices at (e) waives each and every right hereinafter referred to which it may be entitled by virtue of applicable suretyship law to as the full extent that such a law permits or does not forbid such waiver You shall not be required to mitigate damages or take any other action to reduce, collect or enforce the obligations or any Collateral therefore. Each of the Guarantors agrees that neither you, as agent for the Secured Parties, nor the Secured Parties need attempt to collect any Guaranteed Obligations from the other Guarantors or any other obligor or to realize upon any collateral, but may require the Guarantors to make immediate payment of Guaranteed Obligations to you when due or at any time thereafter. Neither you nor the Secured Parties shall be liable for failure to collect Guaranteed Obligations or to realize upon any collateral or security therefor, or any part thereof, or for any delay in so doing, nor shall you or any of the Secured Parties be under any obligation to take any action whatsoever with regard thereto. This Guaranty is absolute, unconditional and continuing, regardless of the validity, regularity or enforceability of any of the Guaranteed Obligations or the fact that a security interest or lien in any collateral or security therefor may not be enforceable by you, for the benefit of the Secured Parties, or may otherwise be subject to equities or defenses or prior claims in favor of others or may be invalid or defective in any way and for any reason, including any action, or failure to act, on your part. The liability of the Guarantors under this Guaranty shall be unaffected by the death of any of the Guarantors. Payment by the Guarantors shall be made to you, for the benefit of the Secured Parties, at your office from time to time on demand as Guaranteed Obligations become due, and one or more successive or concurrent actions may be brought hereon against the Guarantors (or any one or more of them) either in the same action or in separate actions. In the event any claim or action, or action on any judgment, based on this Guaranty, is made or brought against the Guarantors, the Guarantors agree not to assert against you or any of the Secured Parties any set-off or counterclaim which the Companies may have, and, further, the Guarantors agree not to deduct, set-off, or seek to counterclaim for or recoup, any amounts which are or may be owed by you or any of the Secured Parties to the Guarantors, or for any loss of contribution from any other Guarantor. Each of the Guarantors represents, warrants and covenants to you, as agent for the Secured Parties, as an inducement to the Secured Parties to extend credit or provide financial accommodations to the Companies or on the Companies' behalf (i) that as of the date of this Guaranty, the fair saleable value of each of the Guarantor's assets exceeds its respective liabilities; (ii) that each Guarantor is meeting current liabilities as they mature; (iii) that the financial statements of each Guarantor furnished to you are true and correct and include in the footnotes thereto all contingent liabilities of each Guarantor and since the date of said financial statements there has been no material or adverse change in the financial condition, business, operations, assets or prospects of any of the Guarantors; (iv) that there are not now pending any material court or administrative proceedings or undischarged judgments against any of the Guarantors and no federal or state tax liens have been filed or threatened against any of the Guarantors nor is any Guarantor in default or claimed default under any agreement for borrowed money; (v) that each of the Guarantors shall immediately give you written notice of any material adverse change in its financial condition, including but not limited to a litigation commenced, tax liens filed, defaults claimed under its indebtedness for borrowed money or bankruptcy proceedings, that is by or against any Guarantor; (vi) that each of the Guarantors shall at such reasonable times as you request furnish its current financial statements to you and permit you or your representatives to inspect any and all of the Guarantors' offices each of the Guarantors' financial records and properties and make extracts therefrom in order to evaluate the financial condition of each Guarantor; (vii) that none of the Guarantors shall (A) mortgage, assign, pledge, transfer or otherwise permit any lien, charge, security interest, encumbrance or judgment to exist on any of its assets or goods, whether real or personal or mixed, whether now owned or hereafter acquired; (B) incur or create any Indebtedness; (C) assume, guarantee, endorse, or otherwise become liable upon the obligations of any person, firm, entity or corporation, (D) make any advance or loan to or any investment in any firm, entity, person, corporation or joint venture; (E) without your prior written consent, will not contract for, purchase, make expenditures for, lease pursuant to a Lease or otherwise incur obligations with respect to Capital Expenditures; and (viii) that this Guaranty has been duly authorized, executed and delivered by each Guarantor and constitutes the legal, valid and binding obligation of each Guarantor enforceable in accordance with its terms and does not and will not violate or conflict with the Certificate of Incorporation, By-Laws, any agreement by which the Guarantors are bound or any rule of law, regulation or judgment to which any of the Guarantors is subject, nor is any consent or approval, which has not been received, required in connection with the execution, delivery, performance, validity or enforceability of this Guaranty. Each of the Guarantors represents and warrants that it has derived or expects to derive a financial or other benefit commensurate with the liability incurred by each of the Guarantors hereunder, from the obligations incurred and to be incurred by the Companies. All sums at any time to the credit of the Guarantors and any property of the Guarantors on which you, for the benefit of the Secured Parties, at any time have a lien or security interest, or of which you, as agent for the Secured Parties, at any time have possession, shall secure payment and performance of all Guaranteed Obligations and any and all other obligations of the Guarantors to you, as agent for the Secured Parties, however arising. Each of the Guarantors agrees that if any notification of intended disposition of collateral or of any other act by you is required by law and if a specific time period is not stated therein, such notification, if mailed by first class mail at least five days before such disposition or act, postage pre-paid, addressed to the Guarantors at the address set forth for the Companies in the Agreement or at any other address of the Guarantors appearing on your records, shall be deemed reasonably and properly given. The Guarantors shall have no right of subrogation, indemnification or recourse to any Guaranteed Obligations or collateral or guarantees therefor, or to any assets of the Companies. Upon the occurrence of any of the following events:“Bottler”).
Appears in 1 contract
Samples: Share Purchase Agreement
Gentlemen. Reference is made to that certain Loan the Bottler’s Agreement entered into among The Coca-Cola Company, The Coca-Cola Export Corporation and Security Agreementyou with an effective date of [INSERT], dated July __, 1997 2010 (as may be amended, modified or supplemented from time to time, the "Agreement"; capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Agreement), between the Lenders listed in the Agreement (and any amendments or supplements thereto) and you, as Lender and agent for the Lenders (you and the Lenders sometimes hereinafter referred to as the “Agreement”). We hereby authorize you to use the trademark COCA-COLA in your corporate name: “[COMPANY NAME]” The authorization granted herein as, the "Secured Parties"), and the Companies. Each will expire automatically upon expiration or termination of the undersigned (herein each a "Guarantor" and collectively the "Guarantors") hereby unconditionally jointly and severally guarantees and agrees to be liable for the prompt, full and indefeasible payment and performance when due of all now existing and future indebtedness, obligations or liabilities of the Companies to the Secured Parties, howsoever arising, whether direct or indirect, absolute or contingent, secured or unsecured, whether arising under the Agreement, the Note or the other documents executed and delivered is revocable by us in connection with the Agreementour absolute discretion, as now written or as amended or supplemented hereafter, or by operation of law or otherwise, including, without limitation, all Secured Obligations of the Companies to the Secured Parties. Furthermore each of the Guarantors agrees to pay to you, as agent for the Secured Parties, on demand the amount of all expenses (including reasonable attorney's fees) incurred by you or any of the Secured Parties in collecting or attempting to collect any of the Companies' Obligations to the Secured Parties, whether from the Companies, or from any other obligor, or from the Guarantors, or in realizing upon any collateral; and agrees to pay any interest at the highest lawful rate on all amounts payable to you, as agent for the Secured Parties, or the Secured Parties hereunder, even if such amount cannot be collected from the Companies. (All of the aforementioned obligations, liabilities, expenses and interest are hereinafter collectively called the "Guaranteed Obligations"). To the extent you receive payment, for the benefit of the Secured Parties, on account of the Guaranteed Obligations, which payment is thereafter set aside or required to be repaid by you or the Secured Parties in whole or in part, then, to the extent of any sum not finally retained by you or the Secured Parties upon ninety (regardless of whether such sum is recovered from you or the Secured Parties by the Companies, its trustee, or any other party acting for, on behalf of or through the Companies or its representative), the Guarantors' obligation to you, as agent for the Secured Parties, and the Secured Parties under this Guaranty, as amended, modified or supplemented, shall remain in full force and effect (or be reinstated90) until the Guarantors have made payment in full to you, for the benefit of the Secured Parties, therefor, which payment shall be due upon demanddays’ written notice. This Guaranty is executed as an inducement to the Secured Parties to make loans or advances to the Companies or otherwise to extend credit or financial accommodations to the Companies, or to enter into or continue a financing arrangement with the Companies, and is executed in consideration of the Secured Parties doing or having done any of the foregoing. Each of the Guarantors agrees that any of the foregoing shall be done or extended by the Secured Parties, in their sole discretion, and shall be deemed to have been done or extended by the Secured Parties in consideration of and in reliance upon the execution of this Guaranty, but that nothing herein shall obligate the Secured Parties, to do any of the foregoing. Notice of acceptance of this Guaranty, the making of loans or advances, or the extension of credit under the Agreement, the amendment, execution Upon expiration or termination of the Agreement or revocation of this Authorization, [COMPANY NAME] shall take any and all affirmative steps to delete “Coca-Cola” from its corporate name and to amend any other agreements reference to “Coca-Cola” in connection therewith, and presentment, demand, protest, notice of protest, notice of non-payment any and all other notices to which the Guarantors may be entitled (whether under this Guaranty statements or the Agreement)documents including government licenses, and your reliance on this Guaranty are hereby waived. Each of the Guarantors (a) waives notice of (i) changes in terms or extensions of the time of payment, (ii) the taking and releasing of collateral or guarantees (including the release of any of the Guarantors) and (iii) the settlement, compromise or release of any Guaranteed Obligations, and agrees that, as to each of the Guarantors, the amount of the Guaranteed Obligations shall not be diminished by any any of the foregoing; (b) waives any necessity, whether substantive or procedural, that judgment previously be rendered against the Companies registrations or any other person or records. Nothing contained herein shall give you any interest in the goodwill derived from the use of the trademark COCA-COLA in your corporate name. It is hereby expressly agreed and understood that there is extended only a permission uncoupled with any interest to use the Companies or any person be joined in such causetrademark COCA-COLA, or and that separate action be brought against we retain the Companies or any other person; (c) waives any sole and exclusive right to assert initiate and defend any or all proceedings and actions relating to such trademark. Sincerely, THE COCA-COLA COMPANY By: Date: ACCEPTED BY: [COMPANY NAME] By: Date: THIS AGREEMENT, made and entered into with effect from , by and among THE COCA-COLA COMPANY, a corporation organized and existing under the laws of the State of Delaware, United States of America, with principal offices at One Coca-Cola Plaza, N.W., in any action the City of Xxxxxxx, Xxxxx xx Xxxxxxx 00000, Xxxxxx Xxxxxx of America; THE COCA-COLA EXPORT CORPORATION, a corporation organized and existing under the laws of the State of Delaware, United States of America, with principal offices at One Coca-Cola Plaza, N.W., in the City of Xxxxxxx, Xxxxx xx Xxxxxxx 00000, Xxxxxx Xxxxxx of America (The Coca-Cola Company and The Coca-Cola Export Corporation hereinafter collectively or proceeding on this Guaranty any offsets, counterclaims or defenses (except payment) including, without limitation, defenses of Statute of Limitations and laches; (d) waives severally referred to as the performance of each and every condition precedent to which the Guarantors might “Company” unless otherwise be entitled by lawspecified); and , a corporation organized and existing under the laws of , with principal offices at (e) waives each and every right hereinafter referred to which it may be entitled by virtue of applicable suretyship law to as the full extent that such a law permits or does not forbid such waiver You shall not be required to mitigate damages or take any other action to reduce, collect or enforce the obligations or any Collateral therefore. Each of the Guarantors agrees that neither you, as agent for the Secured Parties, nor the Secured Parties need attempt to collect any Guaranteed Obligations from the other Guarantors or any other obligor or to realize upon any collateral, but may require the Guarantors to make immediate payment of Guaranteed Obligations to you when due or at any time thereafter. Neither you nor the Secured Parties shall be liable for failure to collect Guaranteed Obligations or to realize upon any collateral or security therefor, or any part thereof, or for any delay in so doing, nor shall you or any of the Secured Parties be under any obligation to take any action whatsoever with regard thereto. This Guaranty is absolute, unconditional and continuing, regardless of the validity, regularity or enforceability of any of the Guaranteed Obligations or the fact that a security interest or lien in any collateral or security therefor may not be enforceable by you, for the benefit of the Secured Parties, or may otherwise be subject to equities or defenses or prior claims in favor of others or may be invalid or defective in any way and for any reason, including any action, or failure to act, on your part. The liability of the Guarantors under this Guaranty shall be unaffected by the death of any of the Guarantors. Payment by the Guarantors shall be made to you, for the benefit of the Secured Parties, at your office from time to time on demand as Guaranteed Obligations become due, and one or more successive or concurrent actions may be brought hereon against the Guarantors (or any one or more of them) either in the same action or in separate actions. In the event any claim or action, or action on any judgment, based on this Guaranty, is made or brought against the Guarantors, the Guarantors agree not to assert against you or any of the Secured Parties any set-off or counterclaim which the Companies may have, and, further, the Guarantors agree not to deduct, set-off, or seek to counterclaim for or recoup, any amounts which are or may be owed by you or any of the Secured Parties to the Guarantors, or for any loss of contribution from any other Guarantor. Each of the Guarantors represents, warrants and covenants to you, as agent for the Secured Parties, as an inducement to the Secured Parties to extend credit or provide financial accommodations to the Companies or on the Companies' behalf (i) that as of the date of this Guaranty, the fair saleable value of each of the Guarantor's assets exceeds its respective liabilities; (ii) that each Guarantor is meeting current liabilities as they mature; (iii) that the financial statements of each Guarantor furnished to you are true and correct and include in the footnotes thereto all contingent liabilities of each Guarantor and since the date of said financial statements there has been no material or adverse change in the financial condition, business, operations, assets or prospects of any of the Guarantors; (iv) that there are not now pending any material court or administrative proceedings or undischarged judgments against any of the Guarantors and no federal or state tax liens have been filed or threatened against any of the Guarantors nor is any Guarantor in default or claimed default under any agreement for borrowed money; (v) that each of the Guarantors shall immediately give you written notice of any material adverse change in its financial condition, including but not limited to a litigation commenced, tax liens filed, defaults claimed under its indebtedness for borrowed money or bankruptcy proceedings, that is by or against any Guarantor; (vi) that each of the Guarantors shall at such reasonable times as you request furnish its current financial statements to you and permit you or your representatives to inspect any and all of the Guarantors' offices each of the Guarantors' financial records and properties and make extracts therefrom in order to evaluate the financial condition of each Guarantor; (vii) that none of the Guarantors shall (A) mortgage, assign, pledge, transfer or otherwise permit any lien, charge, security interest, encumbrance or judgment to exist on any of its assets or goods, whether real or personal or mixed, whether now owned or hereafter acquired; (B) incur or create any Indebtedness; (C) assume, guarantee, endorse, or otherwise become liable upon the obligations of any person, firm, entity or corporation, (D) make any advance or loan to or any investment in any firm, entity, person, corporation or joint venture; (E) without your prior written consent, will not contract for, purchase, make expenditures for, lease pursuant to a Lease or otherwise incur obligations with respect to Capital Expenditures; and (viii) that this Guaranty has been duly authorized, executed and delivered by each Guarantor and constitutes the legal, valid and binding obligation of each Guarantor enforceable in accordance with its terms and does not and will not violate or conflict with the Certificate of Incorporation, By-Laws, any agreement by which the Guarantors are bound or any rule of law, regulation or judgment to which any of the Guarantors is subject, nor is any consent or approval, which has not been received, required in connection with the execution, delivery, performance, validity or enforceability of this Guaranty. Each of the Guarantors represents and warrants that it has derived or expects to derive a financial or other benefit commensurate with the liability incurred by each of the Guarantors hereunder, from the obligations incurred and to be incurred by the Companies. All sums at any time to the credit of the Guarantors and any property of the Guarantors on which you, for the benefit of the Secured Parties, at any time have a lien or security interest, or of which you, as agent for the Secured Parties, at any time have possession, shall secure payment and performance of all Guaranteed Obligations and any and all other obligations of the Guarantors to you, as agent for the Secured Parties, however arising. Each of the Guarantors agrees that if any notification of intended disposition of collateral or of any other act by you is required by law and if a specific time period is not stated therein, such notification, if mailed by first class mail at least five days before such disposition or act, postage pre-paid, addressed to the Guarantors at the address set forth for the Companies in the Agreement or at any other address of the Guarantors appearing on your records, shall be deemed reasonably and properly given. The Guarantors shall have no right of subrogation, indemnification or recourse to any Guaranteed Obligations or collateral or guarantees therefor, or to any assets of the Companies. Upon the occurrence of any of the following events:“Bottler”).
Appears in 1 contract
Samples: Share Purchase Agreement (Coca Cola Enterprises Inc)
Gentlemen. Reference is made to that certain Loan and Security Agreement, dated July __, 1997 (as may be amended, modified or supplemented from time to time, the "Agreement"; capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Agreement), between the Lenders listed in the Agreement (and any amendments or supplements thereto) and you, as Lender and agent The undersigned hereby subscribes for the Lenders (you and the Lenders sometimes referred to herein as, the "Secured Parties"), and the Companies. Each of the undersigned (herein each a "Guarantor" and collectively the "Guarantors") hereby unconditionally jointly and severally guarantees and agrees to be liable purchase 4,666,667 Warrants ("Insider Warrants") at $0.45 per Insider Warrant, of Renaissance Acquisition Corp. (the "Corporation") for the prompt, full an aggregate purchase price of $2,100,000.15 ("Purchase Price"). The purchase and indefeasible payment and performance when due of all now existing and future indebtedness, obligations or liabilities issuance of the Companies Insider Warrants shall occur simultaneously with the consummation of the Corporation's initial public offering of securities ("IPO") which is being underwritten by Ladenburg Xxxxxxxx & Co. Inc. ("Ladenburg"). The Insider Warrants will be sold to the Secured Parties, howsoever arising, whether direct or indirect, absolute or contingent, secured or unsecured, whether arising under undersigned on a private placement basis and not part of the Agreement, IPO. At least 24 hours prior to the Note or effective date of the other documents executed and delivered registration statement filed in connection with the AgreementIPO ("Registration Statement"), as now written or as amended or supplemented hereafterthe undersigned shall deliver the Purchase Price to Xxxxxxxx Xxxxxx ("GM") to hold in a non-interest bearing account until the Corporation consummates the IPO. Simultaneously with the consummation of the IPO, or by operation of law or otherwise, includingGM shall deposit the Purchase Price, without limitationinterest or deduction, all Secured Obligations of into the Companies to trust fund ("Trust Fund") established by the Secured Parties. Furthermore each of the Guarantors agrees to pay to you, as agent for the Secured Parties, on demand the amount of all expenses (including reasonable attorney's fees) incurred by you or any of the Secured Parties in collecting or attempting to collect any of the Companies' Obligations to the Secured Parties, whether from the Companies, or from any other obligor, or from the Guarantors, or in realizing upon any collateral; and agrees to pay any interest at the highest lawful rate on all amounts payable to you, as agent for the Secured Parties, or the Secured Parties hereunder, even if such amount cannot be collected from the Companies. (All of the aforementioned obligations, liabilities, expenses and interest are hereinafter collectively called the "Guaranteed Obligations"). To the extent you receive payment, Corporation for the benefit of the Secured PartiesCorporation's public stockholders as described in the Corporation's Registration Statement, on account pursuant to the terms of the Guaranteed Obligations, which payment is thereafter set aside or required an Investment Management Trust Agreement to be repaid by you or entered into between the Secured Parties in whole or in part, then, to the extent of any sum not finally retained by you or the Secured Parties (regardless of whether such sum is recovered from you or the Secured Parties by the Companies, its trustee, or any other party acting for, on behalf of or through the Companies or its representative), the Guarantors' obligation to you, as agent for the Secured Parties, Corporation and the Secured Parties under this Guaranty, as amended, modified or supplemented, shall remain in full force and effect (or be reinstated) until the Guarantors have made payment in full to you, for the benefit of the Secured Parties, therefor, which payment shall be due upon demand. This Guaranty is executed as an inducement to the Secured Parties to make loans or advances to the Companies or otherwise to extend credit or financial accommodations to the Companies, or to enter into or continue a financing arrangement with the Companies, and is executed in consideration of the Secured Parties doing or having done any of the foregoing. Each of the Guarantors agrees that any of the foregoing shall be done or extended by the Secured Parties, in their sole discretion, and shall be deemed to have been done or extended by the Secured Parties in consideration of and in reliance upon the execution of this Guaranty, but that nothing herein shall obligate the Secured Parties, to do any of the foregoing. Notice of acceptance of this Guaranty, the making of loans or advances, or the extension of credit under the Agreement, the amendment, execution or termination of the Agreement or any other agreements in connection therewith, and presentment, demand, protest, notice of protest, notice of non-payment and all other notices to which the Guarantors may be entitled (whether under this Guaranty or the Agreement), and your reliance on this Guaranty are hereby waived. Each of the Guarantors (a) waives notice of (i) changes in terms or extensions of the time of payment, (ii) the taking and releasing of collateral or guarantees (including the release of any of the Guarantors) and (iii) the settlement, compromise or release of any Guaranteed Obligations, and agrees that, as to each of the Guarantors, the amount of the Guaranteed Obligations shall not be diminished by any any of the foregoing; (b) waives any necessity, whether substantive or procedural, that judgment previously be rendered against the Companies or any other person or that the Companies or any person be joined in such cause, or that separate action be brought against the Companies or any other person; (c) waives any right to assert in any action or proceeding on this Guaranty any offsets, counterclaims or defenses (except payment) including, without limitation, defenses of Statute of Limitations and laches; (d) waives the performance of each and every condition precedent to which the Guarantors might otherwise be entitled by law; and (e) waives each and every right to which it may be entitled by virtue of applicable suretyship law to the full extent that such a law permits or does not forbid such waiver You shall not be required to mitigate damages or take any other action to reduce, collect or enforce the obligations or any Collateral therefore. Each of the Guarantors agrees that neither you, as agent for the Secured Parties, nor the Secured Parties need attempt to collect any Guaranteed Obligations from the other Guarantors or any other obligor or to realize upon any collateral, but may require the Guarantors to make immediate payment of Guaranteed Obligations to you when due or at any time thereafter. Neither you nor the Secured Parties shall be liable for failure to collect Guaranteed Obligations or to realize upon any collateral or security therefor, or any part thereof, or for any delay in so doing, nor shall you or any of the Secured Parties be under any obligation to take any action whatsoever with regard thereto. This Guaranty is absolute, unconditional and continuing, regardless of the validity, regularity or enforceability of any of the Guaranteed Obligations or the fact that a security interest or lien in any collateral or security therefor may not be enforceable by you, for the benefit of the Secured Parties, or may otherwise be subject to equities or defenses or prior claims in favor of others or may be invalid or defective in any way and for any reason, including any action, or failure to act, on your part. The liability of the Guarantors under this Guaranty shall be unaffected by the death of any of the Guarantors. Payment by the Guarantors shall be made to you, for the benefit of the Secured Parties, at your office from time to time on demand as Guaranteed Obligations become due, and one or more successive or concurrent actions may be brought hereon against the Guarantors (or any one or more of them) either in the same action or in separate actionsContinental Stock Transfer & Trust Company. In the event any claim or action, or action on any judgment, based on this Guaranty, that the IPO is made or brought against the Guarantors, the Guarantors agree not to assert against you or any consummated within 14 days of the Secured Parties any set-off or counterclaim which Purchase Price being delivered to GM, GM shall return the Companies may have, and, further, the Guarantors agree not to deduct, set-off, or seek to counterclaim for or recoup, any amounts which are or may be owed by you or any of the Secured Parties Purchase Price to the Guarantorsundersigned, without interest or for any loss of contribution from any other Guarantordeduction. Each of the Guarantors represents, warrants and covenants to you, as agent for the Secured Parties, as an inducement to the Secured Parties to extend credit or provide financial accommodations to the Companies or on the Companies' behalf (i) that as of the date of this Guaranty, the fair saleable value of each of the Guarantor's assets exceeds its respective liabilities; (ii) that each Guarantor is meeting current liabilities as they mature; (iii) that the financial statements of each Guarantor furnished to you are true and correct and include in the footnotes thereto all contingent liabilities of each Guarantor and since the date of said financial statements there has been no material or adverse change in the financial condition, business, operations, assets or prospects of any of the Guarantors; (iv) that there are not now pending any material court or administrative proceedings or undischarged judgments against any of the Guarantors and no federal or state tax liens have been filed or threatened against any of the Guarantors nor is any Guarantor in default or claimed default under any agreement for borrowed money; (v) that each of the Guarantors shall immediately give you written notice of any material adverse change in its financial condition, including but not limited to a litigation commenced, tax liens filed, defaults claimed under its indebtedness for borrowed money or bankruptcy proceedings, that is by or against any Guarantor; (vi) that each of the Guarantors shall at such reasonable times as you request furnish its current financial statements to you and permit you or your representatives to inspect any and all of the Guarantors' offices each of the Guarantors' financial records and properties and make extracts therefrom in order to evaluate the financial condition of each Guarantor; (vii) that none of the Guarantors shall (A) mortgage, assign, pledge, transfer or otherwise permit any lien, charge, security interest, encumbrance or judgment to exist on any of its assets or goods, whether real or personal or mixed, whether now owned or hereafter acquired; (B) incur or create any Indebtedness; (C) assume, guarantee, endorse, or otherwise become liable upon the obligations of any person, firm, entity or corporation, (D) make any advance or loan to or any investment in any firm, entity, person, corporation or joint venture; (E) without your prior written consent, will not contract for, purchase, make expenditures for, lease pursuant to a Lease or otherwise incur obligations with respect to Capital Expenditures; and (viii) that this Guaranty has been duly authorized, executed and delivered by each Guarantor and constitutes the legal, valid and binding obligation of each Guarantor enforceable in accordance with its terms and does not and will not violate or conflict with the Certificate of Incorporation, By-Laws, any agreement by which the Guarantors are bound or any rule of law, regulation or judgment to which any of the Guarantors is subject, nor is any consent or approval, which has not been received, required in connection with the execution, delivery, performance, validity or enforceability of this Guaranty. Each of the Guarantors The undersigned represents and warrants that it has derived been advised that the Insider Warrants have not been registered under the Securities Act; that it is acquiring the Insider Warrants for its account for investment purposes only; that it has no present intention of selling or expects to derive otherwise disposing of the Insider Warrants in violation of the securities laws of the United States; that it is an "accredited investor" as defined by Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the "Securities Act"); and that it is familiar with the proposed business, management, financial condition and affairs of the Corporation. Moreover, the undersigned agrees that it shall not sell or transfer the Insider Warrants until 30 days after the Corporation consummates a financial merger, capital stock exchange, asset acquisition or other benefit commensurate similar business combination with an operating business ("Business Combination") and acknowledges that the liability incurred by each of the Guarantors hereunder, from the obligations incurred and to Insider Warrants will be incurred by the Companies. All sums at any time to the credit of the Guarantors and any property of the Guarantors on which you, for the benefit of the Secured Parties, at any time have a lien or security interest, or of which you, as agent for the Secured Parties, at any time have possession, shall secure payment and performance of all Guaranteed Obligations and any and all other obligations of the Guarantors to you, as agent for the Secured Parties, however arising. Each of the Guarantors agrees that if any notification of intended disposition of collateral or of any other act by you is required by law and if a specific held in escrow during such time period is not stated therein, and the certificates for such notification, if mailed by first class mail at least five days before Insider Warrants shall contain a legend indicating such disposition or act, postage pre-paid, addressed to the Guarantors at the address set forth for the Companies in the Agreement or at any other address of the Guarantors appearing restriction on your records, shall be deemed reasonably and properly given. The Guarantors shall have no right of subrogation, indemnification or recourse to any Guaranteed Obligations or collateral or guarantees therefor, or to any assets of the Companies. Upon the occurrence of any of the following events:transferability.
Appears in 1 contract
Samples: Subscription Agreement (Renaissance Acquisition Corp.)
Gentlemen. Reference is made In consideration for your agreement to that certain Loan and Security Agreement, enter into a Financing Agreement dated July as of June __, 1997 2000 (as may be amendedthe "Financing Agreement"), modified or supplemented by and among Gilat-to-Home Inc., a Delaware corporation (the "Borrower"), certain financial institutions party thereto from time to timetime (the "Lenders") and Bank Leumi USA, as agent for the Lenders (in such capacity, the "AgreementAgent"; ) (capitalized terms used but herein and not defined herein shall have the meanings assigned to such terms same meaning herein as set forth in the Financing Agreement), between the Lenders listed in the Agreement Gilat Satellite Networks, Ltd. (and any amendments or supplements thereto"Gilat") and you, as Lender and agent for the Lenders Spacenet Inc. (you and the Lenders sometimes referred to herein as, the "Secured Parties"), and the Companies. Each of the undersigned (herein each a "Guarantor" and collectively the "GuarantorsSpacenet") hereby unconditionally represent and warrant jointly and severally guarantees and agrees to be liable for the prompt, full and indefeasible payment and performance when due of all now existing and future indebtedness, obligations or liabilities of the Companies to the Secured Parties, howsoever arising, whether direct or indirect, absolute or contingent, secured or unsecured, whether arising under the Agreement, the Note or the other documents executed and delivered in connection with the Agreement, as now written or as amended or supplemented hereafter, or by operation of law or otherwise, including, without limitation, all Secured Obligations of the Companies to the Secured Parties. Furthermore each of the Guarantors agrees to pay to you, as agent for the Secured Parties, on demand the amount of all expenses (including reasonable attorney's fees) incurred by you or any of the Secured Parties in collecting or attempting to collect any of the Companies' Obligations to the Secured Parties, whether from the Companies, or from any other obligor, or from the Guarantors, or in realizing upon any collateral; and agrees to pay any interest at the highest lawful rate on all amounts payable to you, as agent for the Secured Parties, or the Secured Parties hereunder, even if such amount cannot be collected from the Companies. (All of the aforementioned obligations, liabilities, expenses and interest are hereinafter collectively called the "Guaranteed Obligations"). To the extent you receive payment, for the benefit of the Secured Parties, on account of the Guaranteed Obligations, which payment is thereafter set aside or required to be repaid by you or the Secured Parties in whole or in part, then, to the extent of any sum not finally retained by you or the Secured Parties (regardless of whether such sum is recovered from you or the Secured Parties by the Companies, its trustee, or any other party acting for, on behalf of or through the Companies or its representative), the Guarantors' obligation to you, as agent for the Secured Parties, and the Secured Parties under this Guaranty, as amended, modified or supplemented, shall remain in full force and effect (or be reinstated) until the Guarantors have made payment in full to you, for the benefit of the Secured Parties, therefor, which payment shall be due upon demand. This Guaranty is executed as an inducement to the Secured Parties to make loans or advances to the Companies or otherwise to extend credit or financial accommodations to the Companies, or to enter into or continue a financing arrangement with the Companies, and is executed in consideration of the Secured Parties doing or having done any of the foregoing. Each of the Guarantors agrees that any of the foregoing shall be done or extended by the Secured Parties, in their sole discretion, and shall be deemed to have been done or extended by the Secured Parties in consideration of and in reliance upon the execution of this Guaranty, but that nothing herein shall obligate the Secured Parties, to do any of the foregoing. Notice of acceptance of this Guaranty, the making of loans or advances, or the extension of credit under the Agreement, the amendment, execution or termination of the Agreement or any other agreements in connection therewith, and presentment, demand, protest, notice of protest, notice of non-payment and all other notices to which the Guarantors may be entitled (whether under this Guaranty or the Agreement), and your reliance on this Guaranty are hereby waived. Each of the Guarantors (a) waives notice of (i) changes in terms or extensions of the time of payment, (ii) the taking and releasing of collateral or guarantees (including the release of any of the Guarantors) and (iii) the settlement, compromise or release of any Guaranteed Obligations, and agrees that, as to each of the Guarantors, the amount of the Guaranteed Obligations shall not be diminished by any any of the foregoing; (b) waives any necessity, whether substantive or procedural, that judgment previously be rendered against the Companies or any other person or that the Companies or any person be joined in such cause, or that separate action be brought against the Companies or any other person; (c) waives any right to assert in any action or proceeding on this Guaranty any offsets, counterclaims or defenses (except payment) including, without limitation, defenses of Statute of Limitations and laches; (d) waives the performance of each and every condition precedent to which the Guarantors might otherwise be entitled by law; and (e) waives each and every right to which it may be entitled by virtue of applicable suretyship law to the full extent that such a law permits or does not forbid such waiver You shall not be required to mitigate damages or take any other action to reduce, collect or enforce the obligations or any Collateral therefore. Each of the Guarantors agrees that neither you, as agent for the Secured Parties, nor the Secured Parties need attempt to collect any Guaranteed Obligations from the other Guarantors or any other obligor or to realize upon any collateral, but may require the Guarantors to make immediate payment of Guaranteed Obligations to you when due or at any time thereafter. Neither you nor the Secured Parties shall be liable for failure to collect Guaranteed Obligations or to realize upon any collateral or security therefor, or any part thereof, or for any delay in so doing, nor shall you or any of the Secured Parties be under any obligation to take any action whatsoever with regard thereto. This Guaranty is absolute, unconditional and continuing, regardless of the validity, regularity or enforceability of any of the Guaranteed Obligations or the fact that a security interest or lien in any collateral or security therefor may not be enforceable by you, for the benefit of the Secured Parties, or may otherwise be subject to equities or defenses or prior claims in favor of others the Lenders and the Agent, that the equipment and technology manufactured by either Gilat or may be invalid or defective in Spacenet and supplied to the Borrower pursuant to any way and for any reason, including any action, or failure to actagreement between Borrower, on your part. The liability of the Guarantors under this Guaranty shall be unaffected by the death of any of the Guarantors. Payment by the Guarantors shall be made to you, for the benefit of the Secured Parties, at your office from time to time on demand as Guaranteed Obligations become dueone hand, and one Gilat or more successive or concurrent actions may be brought hereon against the Guarantors (or any one or more of them) either in the same action or in separate actions. In the event any claim or actionSpacenet, or action on any judgment, based on this Guaranty, is made or brought against the Guarantors, the Guarantors agree not to assert against you or any of the Secured Parties any set-off or counterclaim which the Companies may have, and, further, the Guarantors agree not to deduct, set-off, or seek to counterclaim for or recoup, any amounts which are or may be owed by you or any of the Secured Parties to the Guarantors, or for any loss of contribution from any other Guarantor. Each of the Guarantors represents, warrants and covenants to you, as agent for the Secured Parties, as an inducement to the Secured Parties to extend credit or provide financial accommodations to the Companies or on the Companies' behalf (i) that other hand, in effect as of the date of this Guarantythe Financing Agreement, together with any amendments or other modifications thereto that are more favorable to the fair saleable value Borrower unless the adoption of each such amendments or modifications has been approved by a vote of all or a majority of the GuarantorBorrower's assets exceeds its respective liabilities; directors not appointed by either Gilat or Spacenet (ii) that each Guarantor is meeting current liabilities the "Agreements"), shall perform in conformity with the specifications set forth in such Agreements. Gilat and Spacenet hereby agree to jointly and severally indemnify the Agent and Lenders for any and all losses suffered by the Agent and the Lenders as they mature; (iii) that a result of the financial statements of each Guarantor furnished to you are true and correct and include in the footnotes thereto all contingent liabilities of each Guarantor and since the date of said financial statements there has been no material or adverse change in the financial condition, business, operations, assets or prospects breach of any of the Guarantors; (iv) that there are not now pending any material court or administrative proceedings or undischarged judgments against any Agreements if such losses arise solely from the failure of the Guarantors equipment or technology manufactured and no federal supplied to the Borrower by either Gilat or state tax liens have been filed Spacenet pursuant to any Agreement to perform in conformity with the specifications set forth in such Agreement, as determined by a court of competent jurisdiction in an action brought by the Borrower (or threatened against any other person entitled to assert the rights of the Guarantors nor is any Guarantor Borrower in default a bankruptcy or claimed default under any agreement for borrowed money; (v) that each insolvency proceeding of the Guarantors shall immediately give you written notice Borrower) against Gilat and/or Spacenet. Such right of indemnification may be asserted directly by the Agent or the Lenders against Gilat and/or Spacenet if any material adverse change court referred to in its financial conditionthe preceding sentence makes a determination, including but not limited to a litigation commenced, tax liens filed, defaults claimed under its indebtedness for borrowed money or bankruptcy proceedingsGilat and/or Spacent admits in writing, that is the equipment or technology manufactured and supplied to the Borrower by either Gilat or against Spacenet pursuant to any Guarantor; (vi) that each of Agreement failed to perform in conformity with the Guarantors specifications set forth in such Agreement. Any such court determination or written admission shall at such reasonable times as you request furnish its current financial statements to you be binding upon Gilat and permit you or your representatives to inspect any and all of the Guarantors' offices each of the Guarantors' financial records and properties and make extracts therefrom in order to evaluate the financial condition of each Guarantor; (vii) that none of the Guarantors shall (A) mortgage, assign, pledge, transfer or otherwise permit any lien, charge, security interest, encumbrance or judgment to exist on any of its assets or goods, whether real or personal or mixed, whether now owned or hereafter acquired; (B) incur or create any Indebtedness; (C) assume, guarantee, endorse, or otherwise become liable upon the obligations of any person, firm, entity or corporation, (D) make any advance or loan to or any investment Spacenet in any firm, entity, person, corporation or joint venture; (E) without your prior written consent, will not contract for, purchase, make expenditures for, lease pursuant to a Lease or otherwise incur obligations with respect to Capital Expenditures; and (viii) that this Guaranty has been duly authorized, executed and delivered by each Guarantor and constitutes the legal, valid and binding obligation of each Guarantor enforceable in accordance with its terms and does not and will not violate or conflict with the Certificate of Incorporation, By-Laws, any agreement by which the Guarantors are bound or any rule of law, regulation or judgment to which any of the Guarantors is subject, nor is any consent or approval, which has not been received, required in connection with the execution, delivery, performance, validity or enforceability of this Guaranty. Each of the Guarantors represents and warrants that it has derived or expects to derive a financial or other benefit commensurate with the liability incurred by each of the Guarantors hereunder, from the obligations incurred and to be incurred proceeding brought by the Companies. All sums at any time Agent or the Lenders against Gilat and/or Spacenet to assert the right of indemnification granted to the credit of Agent and the Guarantors and any property of Lenders hereunder. However, no independent right is hereby granted by Spacenet, Gilat or the Guarantors on which you, for the benefit of the Secured Parties, at any time have a lien or security interest, or of which you, as agent for the Secured Parties, at any time have possession, shall secure payment and performance of all Guaranteed Obligations and any and all other obligations of the Guarantors to you, as agent for the Secured Parties, however arising. Each of the Guarantors agrees that if any notification of intended disposition of collateral or of any other act by you is required by law and if a specific time period is not stated therein, such notification, if mailed by first class mail at least five days before such disposition or act, postage pre-paid, addressed Borrower to the Guarantors at Agent or Lenders to enforce the address set forth for the Companies in the Agreement or at any other address of the Guarantors appearing on your records, shall be deemed reasonably and properly given. The Guarantors shall have no right of subrogation, indemnification or recourse to any Guaranteed Obligations or collateral or guarantees therefor, or to any assets of the Companies. Upon the occurrence terms of any of the following events:Agreements against Gilat or Spacenet. In the event the Board of Directors becomes comprised of a majority of individuals who are appointed to the Board by either Spacenet or Gilat, Borrower agrees to institute and diligently and in good faith prosecute an action against Gilat or Spacenet for breach of any of the Agreements arising solely from the failure of the equipment or technology manufactured and supplied to the Borrower by either Gilat or Spacenet in the event that the directors not appointed by Gilat and Spacenet decide to institute such an action against Gilat or Spacenet. Notwithstanding anything to the contrary contained herein, this letter shall not in any way affect the rights of the Agent and the Lenders against the Borrower under the Loan Documents or the rights of the Agent and the Lenders against the Borrower or any other person under applicable law. This letter shall (a) terminate upon the repayment in full of all Obligations under the Financing Agreement and the other Loan Documents and (b) be governed by the laws of the State of New York. Gilat Satellite Networks, Ltd. By: ----------------------------- Name: Title: Gilat-to-Home Inc. Spacenet Inc. By: By: ------------------------ ------------------------------ Name: Name: Title: Title: Exhibit L Form of Debt Conversion Letter
Appears in 1 contract
Gentlemen. Reference The undersigned hereby subscribes for and agrees to purchase Warrants ("Insider Warrants") at $1.00 per Insider Warrant, of Cherry Tree Acquisition Corp. (the "Corporation") for an aggregate purchase price of $ ("Purchase Price"). The purchase and issuance of the Insider Warrants shall occur simultaneously with the consummation of the Corporation's initial public offering ("IPO") of Units, each consisting of one share of common stock and one Public Warrant, which is made being underwritten by Lazard Capital Markets LLC ("Lazard"). The Insider Warrants will be sold to that certain Loan the undersigned on a private placement basis and Security Agreement, dated July __, 1997 (not as may be amended, modified or supplemented from time to timepart of the IPO. Except as set forth herein, the "Agreement"; capitalized terms used but not defined herein Insider Warrants shall have the meanings assigned same terms as the Public Warrants At least 24 hours prior to such terms in the Agreement), between the Lenders listed in the Agreement (and any amendments or supplements thereto) and you, as Lender and agent for the Lenders (you and the Lenders sometimes referred to herein as, the "Secured Parties"), and the Companies. Each effective date of the undersigned (herein each a "Guarantor" and collectively the "Guarantors") hereby unconditionally jointly and severally guarantees and agrees to be liable for the prompt, full and indefeasible payment and performance when due of all now existing and future indebtedness, obligations or liabilities of the Companies to the Secured Parties, howsoever arising, whether direct or indirect, absolute or contingent, secured or unsecured, whether arising under the Agreement, the Note or the other documents executed and delivered registration statement filed in connection with the AgreementIPO ("Registration Statement"), as now written or as amended or supplemented hereafterthe undersigned shall deliver the Purchase Price to Xxxxxxxx Xxxxxx ("GM") to hold in a non-interest bearing account until the Corporation consummates the IPO. Simultaneously with the consummation of the IPO, or by operation of law or otherwise, includingGM shall deposit the Purchase Price, without limitationinterest or deduction, all Secured Obligations of into the Companies to trust fund ("Trust Fund") established by the Secured Parties. Furthermore each of the Guarantors agrees to pay to you, as agent for the Secured Parties, on demand the amount of all expenses (including reasonable attorney's fees) incurred by you or any of the Secured Parties in collecting or attempting to collect any of the Companies' Obligations to the Secured Parties, whether from the Companies, or from any other obligor, or from the Guarantors, or in realizing upon any collateral; and agrees to pay any interest at the highest lawful rate on all amounts payable to you, as agent for the Secured Parties, or the Secured Parties hereunder, even if such amount cannot be collected from the Companies. (All of the aforementioned obligations, liabilities, expenses and interest are hereinafter collectively called the "Guaranteed Obligations"). To the extent you receive payment, Corporation for the benefit of the Secured PartiesCorporation's public stockholders as described in the Corporation's Registration Statement, on account pursuant to the terms of the Guaranteed Obligations, which payment is thereafter set aside or required an Investment Management Trust Agreement to be repaid by you or entered into between the Secured Parties in whole or in part, then, to the extent of any sum not finally retained by you or the Secured Parties (regardless of whether such sum is recovered from you or the Secured Parties by the Companies, its trustee, or any other party acting for, on behalf of or through the Companies or its representative), the Guarantors' obligation to you, as agent for the Secured Parties, Corporation and the Secured Parties under this Guaranty, as amended, modified or supplemented, shall remain in full force and effect (or be reinstated) until the Guarantors have made payment in full to you, for the benefit of the Secured Parties, therefor, which payment shall be due upon demand. This Guaranty is executed as an inducement to the Secured Parties to make loans or advances to the Companies or otherwise to extend credit or financial accommodations to the Companies, or to enter into or continue a financing arrangement with the Companies, and is executed in consideration of the Secured Parties doing or having done any of the foregoing. Each of the Guarantors agrees that any of the foregoing shall be done or extended by the Secured Parties, in their sole discretion, and shall be deemed to have been done or extended by the Secured Parties in consideration of and in reliance upon the execution of this Guaranty, but that nothing herein shall obligate the Secured Parties, to do any of the foregoing. Notice of acceptance of this Guaranty, the making of loans or advances, or the extension of credit under the Agreement, the amendment, execution or termination of the Agreement or any other agreements in connection therewith, and presentment, demand, protest, notice of protest, notice of non-payment and all other notices to which the Guarantors may be entitled (whether under this Guaranty or the Agreement), and your reliance on this Guaranty are hereby waived. Each of the Guarantors (a) waives notice of (i) changes in terms or extensions of the time of payment, (ii) the taking and releasing of collateral or guarantees (including the release of any of the Guarantors) and (iii) the settlement, compromise or release of any Guaranteed Obligations, and agrees that, as to each of the Guarantors, the amount of the Guaranteed Obligations shall not be diminished by any any of the foregoing; (b) waives any necessity, whether substantive or procedural, that judgment previously be rendered against the Companies or any other person or that the Companies or any person be joined in such cause, or that separate action be brought against the Companies or any other person; (c) waives any right to assert in any action or proceeding on this Guaranty any offsets, counterclaims or defenses (except payment) including, without limitation, defenses of Statute of Limitations and laches; (d) waives the performance of each and every condition precedent to which the Guarantors might otherwise be entitled by law; and (e) waives each and every right to which it may be entitled by virtue of applicable suretyship law to the full extent that such a law permits or does not forbid such waiver You shall not be required to mitigate damages or take any other action to reduce, collect or enforce the obligations or any Collateral therefore. Each of the Guarantors agrees that neither you, as agent for the Secured Parties, nor the Secured Parties need attempt to collect any Guaranteed Obligations from the other Guarantors or any other obligor or to realize upon any collateral, but may require the Guarantors to make immediate payment of Guaranteed Obligations to you when due or at any time thereafter. Neither you nor the Secured Parties shall be liable for failure to collect Guaranteed Obligations or to realize upon any collateral or security therefor, or any part thereof, or for any delay in so doing, nor shall you or any of the Secured Parties be under any obligation to take any action whatsoever with regard thereto. This Guaranty is absolute, unconditional and continuing, regardless of the validity, regularity or enforceability of any of the Guaranteed Obligations or the fact that a security interest or lien in any collateral or security therefor may not be enforceable by you, for the benefit of the Secured Parties, or may otherwise be subject to equities or defenses or prior claims in favor of others or may be invalid or defective in any way and for any reason, including any action, or failure to act, on your part. The liability of the Guarantors under this Guaranty shall be unaffected by the death of any of the Guarantors. Payment by the Guarantors shall be made to you, for the benefit of the Secured Parties, at your office from time to time on demand as Guaranteed Obligations become due, and one or more successive or concurrent actions may be brought hereon against the Guarantors (or any one or more of them) either in the same action or in separate actionsContinental Stock Transfer & Trust Company. In the event any claim or action, or action on any judgment, based on this Guaranty, that the IPO is made or brought against the Guarantors, the Guarantors agree not to assert against you or any consummated within 14 days of the Secured Parties any set-off or counterclaim which Purchase Price being delivered to GM, GM shall return the Companies may have, and, further, the Guarantors agree not to deduct, set-off, or seek to counterclaim for or recoup, any amounts which are or may be owed by you or any of the Secured Parties Purchase Price to the Guarantorsundersigned, without interest or for any loss of contribution from any other Guarantordeduction. Each of the Guarantors represents, warrants and covenants to you, as agent for the Secured Parties, as an inducement to the Secured Parties to extend credit or provide financial accommodations to the Companies or on the Companies' behalf (i) that as of the date of this Guaranty, the fair saleable value of each of the Guarantor's assets exceeds its respective liabilities; (ii) that each Guarantor is meeting current liabilities as they mature; (iii) that the financial statements of each Guarantor furnished to you are true and correct and include in the footnotes thereto all contingent liabilities of each Guarantor and since the date of said financial statements there has been no material or adverse change in the financial condition, business, operations, assets or prospects of any of the Guarantors; (iv) that there are not now pending any material court or administrative proceedings or undischarged judgments against any of the Guarantors and no federal or state tax liens have been filed or threatened against any of the Guarantors nor is any Guarantor in default or claimed default under any agreement for borrowed money; (v) that each of the Guarantors shall immediately give you written notice of any material adverse change in its financial condition, including but not limited to a litigation commenced, tax liens filed, defaults claimed under its indebtedness for borrowed money or bankruptcy proceedings, that is by or against any Guarantor; (vi) that each of the Guarantors shall at such reasonable times as you request furnish its current financial statements to you and permit you or your representatives to inspect any and all of the Guarantors' offices each of the Guarantors' financial records and properties and make extracts therefrom in order to evaluate the financial condition of each Guarantor; (vii) that none of the Guarantors shall (A) mortgage, assign, pledge, transfer or otherwise permit any lien, charge, security interest, encumbrance or judgment to exist on any of its assets or goods, whether real or personal or mixed, whether now owned or hereafter acquired; (B) incur or create any Indebtedness; (C) assume, guarantee, endorse, or otherwise become liable upon the obligations of any person, firm, entity or corporation, (D) make any advance or loan to or any investment in any firm, entity, person, corporation or joint venture; (E) without your prior written consent, will not contract for, purchase, make expenditures for, lease pursuant to a Lease or otherwise incur obligations with respect to Capital Expenditures; and (viii) that this Guaranty has been duly authorized, executed and delivered by each Guarantor and constitutes the legal, valid and binding obligation of each Guarantor enforceable in accordance with its terms and does not and will not violate or conflict with the Certificate of Incorporation, By-Laws, any agreement by which the Guarantors are bound or any rule of law, regulation or judgment to which any of the Guarantors is subject, nor is any consent or approval, which has not been received, required in connection with the execution, delivery, performance, validity or enforceability of this Guaranty. Each of the Guarantors The undersigned represents and warrants that it has derived been advised that the Insider Warrants have not been registered under the Securities Act; that it is acquiring the Insider Warrants for its account for investment purposes only; that it has no present intention of selling or expects to derive otherwise disposing of the Insider Warrants in violation of the securities laws of the United States; that it is an "accredited investor" as defined by Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the "Securities Act"); and that it is familiar with the proposed business, management, financial condition and affairs of the Corporation. Moreover, the undersigned agrees that it shall not sell or transfer the Insider Warrants until 90 days after the Corporation consummates a financial merger, capital stock exchange, asset acquisition or other benefit commensurate similar business combination with an operating business ("Business Combination") and acknowledges that the liability incurred certificates for such Insider Warrants shall contain a legend indicating such restriction on transferability. The Corporation hereby acknowledges and agrees that (i) the Insider Warrants will be nonredeemable and (ii) the Insider Warrants may be exercised by each surrendering such Insider Warrants for that number of shares of Common Stock equal to the quotient obtained by dividing (x) the product of the Guarantors hereundernumber of shares of Common Stock underlying the Insider Warrants, from the obligations incurred and to be incurred multiplied by the Companiesdifference between the Warrant exercise price and the "Fair Market Value" (defined below) by (y) the Fair Market Value, in each case so long as the Insider Warrants are held by the undersigned or its permitted transferees. All sums at any time to the credit of the Guarantors and any property of the Guarantors on which you, for the benefit of the Secured Parties, at any time have a lien or security interest, or of which you, as agent for the Secured Parties, at any time have possession, shall secure payment and performance of all Guaranteed Obligations and any and all other obligations of the Guarantors to you, as agent for the Secured Parties, however arising. Each of the Guarantors agrees that if any notification of intended disposition of collateral or of any other act by you is required by law and if a specific time period is not stated therein, such notification, if mailed by first class mail at least five days before such disposition or act, postage pre-paid, addressed to the Guarantors at the address set forth for the Companies in the Agreement or at any other address of the Guarantors appearing on your records, shall be deemed reasonably and properly given. The Guarantors shall have no right of subrogation, indemnification or recourse to any Guaranteed Obligations or collateral or guarantees therefor, or to any assets of the Companies. Upon the occurrence of any of the following events:The
Appears in 1 contract
Samples: Subscription Agreement (Cherry Tree Acquisition Corp.)
Gentlemen. Reference is made to that the financing arrangements between The CIT Group/Credit Finance, Inc. ("Lender") and Borrower, pursuant to which Lender may extend loans, advances and other financial accommodations to Borrower as set forth in a certain Loan and Security Agreement, dated July __on or about the date hereof, 1997 between Borrower and Lender (as may be amended, modified or supplemented from time to time, the "Loan Agreement"; capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Agreement), between the Lenders listed in the Agreement (and any amendments or supplements thereto) and you, as Lender and agent for the Lenders (you and the Lenders sometimes referred to herein as, the "Secured Parties"), and various other agreements, documents and instruments now or at any time executed and/or delivered in connection therewith or otherwise related thereto, including, but not limited to, this Guaranty and Suretyship Agreement ("Guaranty") (all of the Companiesforegoing, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, being collectively referred to herein as the "Financing Agreement"). Each of Due to the close business and financial relationships between Borrower and the undersigned (herein each a "Guarantor" "), in consideration of the benefits which will accrue to Guarantor, and collectively as an inducement for and in consideration of Lender at any time providing or extending loans, advances and other financial accommodations to Borrower, whether pursuant to the "Guarantors") hereby unconditionally jointly Financing Agreements or otherwise, Guarantor hereby, irrevocably and severally unconditionally, guarantees and agrees to be liable (a) for the prompt, prompt indefeasible and full and indefeasible payment and performance when due of all revolving loans, term loans, letters of credit, bankers' acceptances, merchandise purchase guaranties or other guaranties or indemnities for Borrower's account and all other obligations, liabilities and indebtedness of every kind, nature or description owing by Borrower to Lender and/or its affiliates, including principal, interest, charges, fees and expenses, however evidenced, whether as principal, surety, endorser, guarantor or otherwise, whether arising under any of the Financing Agreements or otherwise, whether now existing and future indebtednessor hereafter arising, obligations whether arising before, during or liabilities after the initial or any renewal term of the Companies Financing Agreements or after the commencement of any case with respect to Borrower under the Secured Parties, howsoever arisingUnited States Bankruptcy Code or any similar statute, whether direct or indirect, absolute or contingent, joint or several, due or not due, primary or secondary, liquidated or unliquidated, secured or unsecured, original, renewed or extended, and whether arising under the Agreementdirectly or howsoever acquired by Lender including from any other entity outright, the Note or the other documents executed and delivered in connection with the Agreement, as now written conditionally or as amended collateral security, by assignment, merger with any other entity, participations or supplemented hereafterinterests of Lender in the obligations of Borrower to others, or by assumption, operation of law law, subrogation or otherwise, including, without limitation, all Secured Obligations of the Companies to the Secured Parties. Furthermore each of the Guarantors agrees otherwise and (b) to pay to you, as agent for the Secured Parties, Lender on demand the amount of all expenses (including reasonable attorney's fees) incurred by you or any of the Secured Parties in collecting or attempting to collect any of the Companies' Obligations to the Secured Parties, whether from the Companies, or from any other obligor, or from the Guarantors, or in realizing upon any collateral; and agrees to pay any interest at the highest lawful rate on all amounts payable to you, as agent for the Secured Parties, or the Secured Parties hereunder, even if such amount cannot be collected from the Companies. (All of the aforementioned obligations, liabilities, expenses and interest are hereinafter collectively called the "Guaranteed Obligations"). To the extent you receive payment, for the benefit of the Secured Parties, on account of the Guaranteed Obligations, which payment is thereafter set aside or required to be repaid by you or the Secured Parties in whole or in part, then, to the extent of any sum not finally retained by you or the Secured Parties (regardless of whether such sum is recovered from you or the Secured Parties by the Companies, its trustee, or any other party acting for, on behalf of or through the Companies or its representative), the Guarantors' obligation to you, as agent for the Secured Parties, and the Secured Parties under this Guaranty, as amended, modified or supplemented, shall remain in full force and effect (or be reinstated) until the Guarantors have made payment in full to you, for the benefit of the Secured Parties, therefor, which payment shall be due upon demand. This Guaranty is executed as an inducement to the Secured Parties to make loans or advances to the Companies or otherwise to extend credit or financial accommodations to the Companies, or to enter into or continue a financing arrangement with the Companies, and is executed in consideration of the Secured Parties doing or having done any of the foregoing. Each of the Guarantors agrees that any of the foregoing shall be done or extended by the Secured Parties, in their sole discretion, and shall be deemed to have been done or extended by the Secured Parties in consideration of and in reliance upon the execution of this Guaranty, but that nothing herein shall obligate the Secured Parties, to do any of the foregoing. Notice of acceptance of this Guaranty, the making of loans or advances, or the extension of credit under the Agreement, the amendment, execution or termination of the Agreement or any other agreements in connection therewith, and presentment, demand, protest, notice of protest, notice of non-payment and all other notices to which the Guarantors may be entitled (whether under this Guaranty or the Agreement), and your reliance on this Guaranty are hereby waived. Each of the Guarantors (a) waives notice of (i) changes in terms or extensions of the time of payment, (ii) the taking and releasing of collateral or guarantees (including the release of any of the Guarantors) and (iii) the settlement, compromise or release of any Guaranteed Obligations, and agrees that, as to each of the Guarantors, the amount of the Guaranteed Obligations shall not be diminished by any any of the foregoing; (b) waives any necessity, whether substantive or procedural, that judgment previously be rendered against the Companies or any other person or that the Companies or any person be joined in such cause, or that separate action be brought against the Companies or any other person; (c) waives any right to assert in any action or proceeding on this Guaranty any offsets, counterclaims or defenses (except payment) including, without limitation, defenses attorneys' fees and legal expenses) incurred by Lender in connection with the preparation, execution, delivery, recording, administration, collection, liquidation, enforcement and defense of Statute of Limitations Borrower's obligations, liabilities and laches; (d) waives the performance of each and every condition precedent indebtedness as aforesaid to which the Guarantors might otherwise be entitled by law; and (e) waives each and every right to which it may be entitled by virtue of applicable suretyship law to the full extent that such a law permits or does not forbid such waiver You shall not be required to mitigate damages or take any other action to reduceLender, collect or enforce the obligations or any Collateral therefore. Each of the Guarantors agrees that neither you, as agent for the Secured Parties, nor the Secured Parties need attempt to collect any Guaranteed Obligations from the other Guarantors or any other obligor or to realize upon any collateral, but may require the Guarantors to make immediate payment of Guaranteed Obligations to you when due or at any time thereafter. Neither you nor the Secured Parties shall be liable for failure to collect Guaranteed Obligations or to realize upon any collateral or security therefor, or any part thereof, or for any delay in so doing, nor shall you or any of the Secured Parties be under any obligation to take any action whatsoever with regard thereto. This Guaranty is absolute, unconditional and continuing, regardless of the validity, regularity or enforceability of any of the Guaranteed Obligations or the fact that a security interest or lien Lender's rights in any collateral or security therefor may not be enforceable by you, for the benefit of the Secured Parties, under this Guaranty and all other Financing Agreements or may otherwise be subject to equities or defenses or prior claims in favor of others or may be invalid or defective in any way and for any reason, including any action, or failure to act, on your part. The liability of the Guarantors under this Guaranty shall be unaffected by the death of any of the Guarantors. Payment by the Guarantors shall be made to you, for the benefit of the Secured Parties, at your office from time to time on demand as Guaranteed Obligations become due, and one or more successive or concurrent actions may be brought hereon against the Guarantors (or any one or more of them) either in the same action or in separate actions. In the event any claim or action, or action on any judgment, based on this Guaranty, is made or brought against the Guarantors, the Guarantors agree not to assert against you or any of the Secured Parties any set-off or counterclaim which the Companies may have, and, further, the Guarantors agree not to deduct, set-off, or seek to counterclaim for or recoup, any amounts which are or may be owed by you or any of the Secured Parties to the Guarantors, or for any loss of contribution from any other Guarantor. Each of the Guarantors represents, warrants and covenants to you, as agent for the Secured Parties, as an inducement to the Secured Parties to extend credit or provide financial accommodations to the Companies or on the Companies' behalf (i) that as of the date of this Guaranty, the fair saleable value of each of the Guarantor's assets exceeds its respective liabilities; (ii) that each Guarantor is meeting current liabilities as they mature; (iii) that the financial statements of each Guarantor furnished to you are true and correct and include in the footnotes thereto all contingent liabilities of each Guarantor and since the date of said financial statements there has been no material or adverse change in the financial condition, business, operations, assets or prospects of any of the Guarantors; (iv) that there are not now pending any material court or administrative proceedings or undischarged judgments against any of the Guarantors and no federal or state tax liens have been filed or threatened against any of the Guarantors nor is any Guarantor in default or claimed default under any agreement for borrowed money; (v) that each of the Guarantors shall immediately give you written notice of any material adverse change in its financial condition, including but not limited to a litigation commenced, tax liens filed, defaults claimed under its indebtedness for borrowed money or bankruptcy proceedings, that is involving claims by or against Lender directly or indirectly arising out of or related to the relationship between Borrower and Lender, Guarantor and Lender, or any Guarantor; other Obligor (vias hereinafter defined) that each and Lender, whether such expenses are incurred before, during or after the initial or any renewal term of the Guarantors shall at such reasonable times as you request furnish its current financial statements to you and permit you Financing Agreements or your representatives to inspect any and all of after the Guarantors' offices each of the Guarantors' financial records and properties and make extracts therefrom in order to evaluate the financial condition of each Guarantor; (vii) that none of the Guarantors shall (A) mortgage, assign, pledge, transfer or otherwise permit any lien, charge, security interest, encumbrance or judgment to exist on any of its assets or goods, whether real or personal or mixed, whether now owned or hereafter acquired; (B) incur or create any Indebtedness; (C) assume, guarantee, endorse, or otherwise become liable upon the obligations commencement of any person, firm, entity or corporation, (D) make any advance or loan to or any investment in any firm, entity, person, corporation or joint venture; (E) without your prior written consent, will not contract for, purchase, make expenditures for, lease pursuant to a Lease or otherwise incur obligations case with respect to Capital Expenditures; and (viii) that this Guaranty has been duly authorizedBorrower, executed and delivered by each Guarantor and constitutes the legal, valid and binding obligation of each Guarantor enforceable in accordance with its terms and does not and will not violate or conflict with the Certificate of Incorporation, By-Laws, any agreement by which the Guarantors are bound or any rule of law, regulation other Obligor under the United States Bankruptcy Code or judgment to which any of the Guarantors is subject, nor is any consent or approval, which has not been received, required in connection with the execution, delivery, performance, validity or enforceability of this Guaranty. Each of the Guarantors represents and warrants that it has derived or expects to derive a financial or other benefit commensurate with the liability incurred by each of the Guarantors hereunder, from the obligations incurred and to be incurred by the Companies. All sums at any time to the credit of the Guarantors and any property of the Guarantors on which you, for the benefit of the Secured Parties, at any time have a lien or security interest, or similar statute (all of which you, being collectively referred to herein as agent for the Secured Parties, at any time have possession, shall secure payment and performance of all "Guaranteed Obligations and any and all other obligations of the Guarantors to you, as agent for the Secured Parties, however arising. Each of the Guarantors agrees that if any notification of intended disposition of collateral or of any other act by you is required by law and if a specific time period is not stated therein, such notification, if mailed by first class mail at least five days before such disposition or act, postage pre-paid, addressed to the Guarantors at the address set forth for the Companies in the Agreement or at any other address of the Guarantors appearing on your records, shall be deemed reasonably and properly given. The Guarantors shall have no right of subrogation, indemnification or recourse to any Guaranteed Obligations or collateral or guarantees therefor, or to any assets of the Companies. Upon the occurrence of any of the following events:Obligations.).
Appears in 1 contract
Gentlemen. Reference is made to that certain Loan and Security AgreementIn consideration of your executing a shipbuilding contract (hereinafter called the “CONTRACT”) dated March , dated July __, 1997 2014 with NAVIG8 CRUDE TANKERS INC or its nominees (as may be amended, modified or supplemented from time to time, hereinafter called the "Agreement"; capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Agreement), between the Lenders listed in the Agreement (and any amendments or supplements thereto“BUYER”) and you, as Lender and agent providing for the Lenders design, construction, equipment, launch and delivery of one (you and 1) 300,000 DWT Class Crude Oil Carrier having the Lenders sometimes referred to herein as, BUILDER’s Hull No. NTP0138 (hereinafter called the "Secured Parties"“VESSEL”), and the Companies. Each providing, among other things, for payment of the undersigned contract price amounting to United States Dollars Ninety Six Million Three Hundred Sixty Thousand Five Hundred only (herein each US$ 96,360,500) for the VESSEL, prior to and upon delivery of the VESSEL, the undersigned, as a "Guarantor" primary obligor and collectively the "Guarantors") not as a merely surety, hereby unconditionally jointly and severally irrevocably guarantees to you or your successors, the due and agrees to be liable for faithful performance by the prompt, full and indefeasible payment and performance when due BUYER of all now existing and future indebtedness, its obligations or liabilities of the Companies to the Secured Parties, howsoever arising, whether direct or indirect, absolute or contingent, secured or unsecured, whether arising under the AgreementCONTRACT and any supplements, the Note amendments, changes or the other documents executed and delivered in connection with the Agreement, as now written or as amended or supplemented hereafter, or by operation of law or otherwise, including, without limitation, all Secured Obligations of the Companies to the Secured Parties. Furthermore each of the Guarantors agrees to pay to you, as agent for the Secured Parties, on demand the amount of all expenses (including reasonable attorney's fees) incurred by you or any of the Secured Parties in collecting or attempting to collect any of the Companies' Obligations to the Secured Parties, whether from the Companies, or from any other obligor, or from the Guarantors, or in realizing upon any collateral; and agrees to pay any interest at the highest lawful rate on all amounts payable to you, as agent for the Secured Parties, or the Secured Parties hereunder, even if such amount cannot be collected from the Companies. (All of the aforementioned obligations, liabilities, expenses and interest are modifications hereinafter collectively called the "Guaranteed Obligations"). To the extent you receive payment, for the benefit of the Secured Parties, on account of the Guaranteed Obligations, which payment is thereafter set aside or required to be repaid by you or the Secured Parties in whole or in part, then, to the extent of any sum not finally retained by you or the Secured Parties (regardless of whether such sum is recovered from you or the Secured Parties by the Companies, its trustee, or any other party acting for, on behalf of or through the Companies or its representative), the Guarantors' obligation to you, as agent for the Secured Parties, and the Secured Parties under this Guaranty, as amended, modified or supplemented, shall remain in full force and effect (or be reinstated) until the Guarantors have made payment in full to you, for the benefit of the Secured Parties, therefor, which payment shall be due upon demand. This Guaranty is executed as an inducement to the Secured Parties to make loans or advances to the Companies or otherwise to extend credit or financial accommodations to the Companies, or to enter into or continue a financing arrangement with the Companies, and is executed in consideration of the Secured Parties doing or having done any of the foregoing. Each of the Guarantors agrees that any of the foregoing shall be done or extended by the Secured Parties, in their sole discretion, and shall be deemed to have been done or extended by the Secured Parties in consideration of and in reliance upon the execution of this Guaranty, but that nothing herein shall obligate the Secured Parties, to do any of the foregoing. Notice of acceptance of this Guaranty, the making of loans or advances, or the extension of credit under the Agreement, the amendment, execution or termination of the Agreement or any other agreements in connection therewith, and presentment, demand, protest, notice of protest, notice of non-payment and all other notices to which the Guarantors may be entitled (whether under this Guaranty or the Agreement), and your reliance on this Guaranty are hereby waived. Each of the Guarantors (a) waives notice of (i) changes in terms or extensions of the time of payment, (ii) the taking and releasing of collateral or guarantees (including the release of any of the Guarantors) and (iii) the settlement, compromise or release of any Guaranteed Obligations, and agrees that, as to each of the Guarantors, the amount of the Guaranteed Obligations shall not be diminished by any any of the foregoing; (b) waives any necessity, whether substantive or procedural, that judgment previously be rendered against the Companies or any other person or that the Companies or any person be joined in such cause, or that separate action be brought against the Companies or any other person; (c) waives any right to assert in any action or proceeding on this Guaranty any offsets, counterclaims or defenses (except payment) including, without limitation, defenses of Statute of Limitations and laches; (d) waives the performance of each and every condition precedent to which the Guarantors might otherwise be entitled by law; and (e) waives each and every right to which it may be entitled by virtue of applicable suretyship law to the full extent that such a law permits or does not forbid such waiver You shall not be required to mitigate damages or take any other action to reduce, collect or enforce the obligations or any Collateral therefore. Each of the Guarantors agrees that neither you, as agent for the Secured Parties, nor the Secured Parties need attempt to collect any Guaranteed Obligations from the other Guarantors or any other obligor or to realize upon any collateral, but may require the Guarantors to make immediate payment of Guaranteed Obligations to you when due or at any time thereafter. Neither you nor the Secured Parties shall be liable for failure to collect Guaranteed Obligations or to realize upon any collateral or security therefor, or any part thereof, or for any delay in so doing, nor shall you or any of the Secured Parties be under any obligation to take any action whatsoever with regard thereto. This Guaranty is absolute, unconditional and continuing, regardless of the validity, regularity or enforceability of any of the Guaranteed Obligations or the fact that a security interest or lien in any collateral or security therefor may not be enforceable by you, for the benefit of the Secured Parties, or may otherwise be subject to equities or defenses or prior claims in favor of others or may be invalid or defective in any way and for any reason, including any action, or failure to act, on your part. The liability of the Guarantors under this Guaranty shall be unaffected by the death of any of the Guarantors. Payment by the Guarantors shall be made to you, for the benefit of the Secured Parties, at your office from time to time on demand as Guaranteed Obligations become due, and one or more successive or concurrent actions may be brought hereon against the Guarantors (or any one or more of them) either in the same action or in separate actions. In the event any claim or action, or action on any judgment, based on this Guaranty, is made or brought against the Guarantors, the Guarantors agree not to assert against you or any of the Secured Parties any set-off or counterclaim which the Companies may have, and, further, the Guarantors agree not to deduct, set-off, or seek to counterclaim for or recoup, any amounts which are or may be owed by you or any of the Secured Parties to the Guarantors, or for any loss of contribution from any other Guarantor. Each of the Guarantors represents, warrants and covenants to you, as agent for the Secured Parties, as an inducement to the Secured Parties to extend credit or provide financial accommodations to the Companies or on the Companies' behalf (i) that as of the date of this Guaranty, the fair saleable value of each of the Guarantor's assets exceeds its respective liabilities; (ii) that each Guarantor is meeting current liabilities as they mature; (iii) that the financial statements of each Guarantor furnished to you are true and correct and include in the footnotes thereto all contingent liabilities of each Guarantor and since the date of said financial statements there has been no material or adverse change in the financial condition, business, operations, assets or prospects of any of the Guarantors; (iv) that there are not now pending any material court or administrative proceedings or undischarged judgments against any of the Guarantors and no federal or state tax liens have been filed or threatened against any of the Guarantors nor is any Guarantor in default or claimed default under any agreement for borrowed money; (v) that each of the Guarantors shall immediately give you written notice of any material adverse change in its financial condition, including but not limited to a litigation commenced, tax liens filed, defaults claimed under its indebtedness for borrowed money or bankruptcy proceedings, that is by or against any Guarantor; (vi) that each the prompt payment of the Guarantors shall at such reasonable times as you request furnish its current financial statements contract price, when due (whether on account of principal, interest or otherwise) by the BUYER to you and permit you or your representatives to inspect successors under the CONTRACT, notwithstanding any and all obligation of the Guarantors' offices each BUYER being or becoming unenforceable by defect in or want of its powers, (hereby expressly waiving notice of any such supplement, amendment, change or modification as may be agreed to by the BUYER) and confirms that this guarantee shall be fully applicable to the CONTRACT whether so supplemented, amended, changed or modified and if it shall be assigned by the BUYER in accordance with the terms of the Guarantors' financial records and properties and make extracts therefrom in order to evaluate CONTRACT. This guarantee will expire on the financial condition of each Guarantor; (vii) that none payment of the Guarantors shall (A) mortgageDELIVERY installment of the VESSEL as defined in the CONTRACT. The undersigned hereby certifies, assignrepresents and warrants that all acts, pledge, transfer or otherwise permit any lien, charge, security interest, encumbrance or judgment conditions and things required to exist on any be done and performed and to have occurred precedent to the creation and issuance of its assets or goods, whether real or personal or mixed, whether now owned or hereafter acquired; (B) incur or create any Indebtedness; (C) assume, this guarantee, endorse, or otherwise become liable upon and to constitute the obligations of any person, firm, entity or corporation, (D) make any advance or loan to or any investment in any firm, entity, person, corporation or joint venture; (E) without your prior written consent, will not contract for, purchase, make expenditures for, lease pursuant to a Lease or otherwise incur obligations with respect to Capital Expenditures; and (viii) that this Guaranty has been duly authorized, executed and delivered by each Guarantor and constitutes guarantee the legal, valid and legally binding obligation of each Guarantor the undersigned enforceable in accordance with its terms have been done and does not performed and will not violate or conflict have occurred in due and strict compliance with the Certificate of Incorporation, By-Laws, any agreement by which the Guarantors are bound or any rule of law, regulation or judgment to which any of the Guarantors is subject, nor is any consent or approval, which has not been received, required in connection with the execution, delivery, performance, validity or enforceability of this Guarantyapplicable laws. Each of the Guarantors represents and warrants that it has derived or expects to derive a financial or other benefit commensurate with the liability incurred by each of the Guarantors hereunder, from the obligations incurred and to be incurred The payment by the Companies. All sums at any time to the credit of the Guarantors and any property of the Guarantors on which you, for the benefit of the Secured Parties, at any time have a lien or security interest, or of which you, as agent for the Secured Parties, at any time have possession, shall secure payment and performance of all Guaranteed Obligations and any and all other obligations of the Guarantors to you, as agent for the Secured Parties, however arising. Each of the Guarantors agrees that if any notification of intended disposition of collateral or of any other act by you is required by law and if a specific time period is not stated therein, such notification, if mailed by first class mail at least five days before such disposition or act, postage pre-paid, addressed to the Guarantors at the address set forth for the Companies in the Agreement or at any other address of the Guarantors appearing on your records, undersigned under this guarantee shall be deemed reasonably and properly given. The Guarantors shall have no right of subrogation, indemnification or recourse to any Guaranteed Obligations or collateral or guarantees therefor, or to any assets of the Companies. Upon the occurrence of any of the following events:made forthwith within thirty
Appears in 1 contract
Gentlemen. Reference is made to that You have requested our opinion concerning certain Loan and Security Agreement, dated July __, 1997 federal income tax consequences of the reorganization of Acquired Fund (as may be amended, modified or supplemented from time to time, the "Agreement"; capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Agreement“Reorganization”), between which will consist of: (i) the Lenders listed in the Agreement (and any amendments or supplements thereto) and you, as Lender and agent for the Lenders (you and the Lenders sometimes referred to herein as, the "Secured Parties"), and the Companies. Each of the undersigned (herein each a "Guarantor" and collectively the "Guarantors") hereby unconditionally jointly and severally guarantees and agrees to be liable for the prompt, full and indefeasible payment and performance when due of all now existing and future indebtedness, obligations or liabilities of the Companies to the Secured Parties, howsoever arising, whether direct or indirect, absolute or contingent, secured or unsecured, whether arising under the Agreement, the Note or the other documents executed and delivered in connection with the Agreement, as now written or as amended or supplemented hereafter, or acquisition by operation of law or otherwise, including, without limitation, all Secured Obligations of the Companies to the Secured Parties. Furthermore each of the Guarantors agrees to pay to you, as agent for the Secured Parties, on demand the amount of all expenses (including reasonable attorney's fees) incurred by you or any of the Secured Parties in collecting or attempting to collect any of the Companies' Obligations to the Secured Parties, whether from the Companies, or from any other obligor, or from the Guarantors, or in realizing upon any collateral; and agrees to pay any interest at the highest lawful rate on all amounts payable to you, as agent for the Secured Parties, or the Secured Parties hereunder, even if such amount cannot be collected from the Companies. (All of the aforementioned obligations, liabilities, expenses and interest are hereinafter collectively called the "Guaranteed Obligations"). To the extent you receive payment, for the benefit of the Secured Parties, on account of the Guaranteed Obligations, which payment is thereafter set aside or required to be repaid by you or the Secured Parties in whole or in part, then, to the extent of any sum not finally retained by you or the Secured Parties (regardless of whether such sum is recovered from you or the Secured Parties by the Companies, its trustee, or any other party acting forAcquiring Trust, on behalf of or through Acquiring Fund, of substantially all of the Companies or its representative)property, the Guarantors' obligation to youassets and goodwill of Acquired Fund in exchange solely for full and fractional Class A, as agent for the Secured PartiesClass B, and the Secured Parties under this GuarantyClass C shares of beneficial interest, as amendedwith no par value, modified or supplemented, shall remain in full force and effect of Acquiring Fund (or be reinstated“Acquiring Fund Shares”) until the Guarantors have made payment in full to you, for the benefit of the Secured Parties, therefor, which payment shall be due upon demand. This Guaranty is executed as an inducement to the Secured Parties to make loans or advances to the Companies or otherwise to extend credit or financial accommodations to the Companies, or to enter into or continue a financing arrangement with the Companies, and is executed in consideration of the Secured Parties doing or having done any of the foregoing. Each of the Guarantors agrees that any of the foregoing shall be done or extended by the Secured Parties, in their sole discretion, and shall be deemed to have been done or extended by the Secured Parties in consideration of and in reliance upon the execution of this Guaranty, but that nothing herein shall obligate the Secured Parties, to do any of the foregoing. Notice of acceptance of this Guaranty, the making of loans or advances, or the extension of credit under the Agreement, the amendment, execution or termination of the Agreement or any other agreements in connection therewith, and presentment, demand, protest, notice of protest, notice of non-payment and all other notices to which the Guarantors may be entitled (whether under this Guaranty or the Agreement), and your reliance on this Guaranty are hereby waived. Each of the Guarantors (a) waives notice of (i) changes in terms or extensions of the time of payment, voting securities; (ii) the taking distribution of Acquiring Fund Shares to the holders of Class A, Class B, and releasing Class C shares of collateral or guarantees beneficial interest of Acquired Fund (including the release “Acquired Fund Shares”), respectively, according to their respective interests in Acquired Fund in complete liquidation of any of the Guarantors) Acquired Fund; and (iii) the settlementdissolution of Acquired Fund as soon as is practicable after the closing (the “Closing”), compromise or release all upon and subject to the terms and conditions of any Guaranteed Obligationsthe Agreement. In rendering our opinion, we have reviewed and relied upon: (a) the Agreement, made as of the first day of December, 2008, by Acquiring Trust, on behalf of Acquiring Fund, and agrees thatAcquired Trust, as to each on behalf of the Guarantors, the amount of the Guaranteed Obligations shall not be diminished by any any of the foregoingAcquired Fund; (b) waives any necessitythe proxy materials provided to shareholders of Acquired Fund in connection with a Special Meeting of Shareholders of Acquired Fund held on November 12, whether substantive or procedural, that judgment previously be rendered against the Companies or any other person or that the Companies or any person be joined in such cause, or that separate action be brought against the Companies or any other person2008; (c) waives any right certain representations concerning the Reorganization made to assert us by Acquiring Trust, on behalf of Acquiring Fund, and Acquired Trust, on behalf of Acquired Fund, in any action or proceeding on this Guaranty any offsetsa letter dated December 3, counterclaims or defenses 2008 (except payment) including, without limitation, defenses of Statute of Limitations and lachesthe “Representation Letter”); (d) waives the performance of each all other documents, financial and every condition precedent to which the Guarantors might otherwise be entitled by lawother reports and corporate minutes we deemed relevant or appropriate; and (e) waives each such statutes, regulations, rulings and every right to which it may be entitled by virtue decisions as we deemed material in rendering this opinion. All terms used herein, unless otherwise defined, are used as defined in the Agreement. For purposes of applicable suretyship law to this opinion, we have assumed that Acquired Fund, on the full extent that such a law permits or does not forbid such waiver You shall not be required to mitigate damages or take any other action to reduce, collect or enforce the obligations or any Collateral therefore. Each Closing of the Guarantors agrees that neither youReorganization, satisfies, and immediately following the Closing, Acquiring Fund will continue to satisfy, the requirements of Subchapter M of the Internal Revenue Code of 1986, as agent for amended (the Secured Parties, nor the Secured Parties need attempt to collect any Guaranteed Obligations from the other Guarantors or any other obligor or to realize upon any collateral, but may require the Guarantors to make immediate payment of Guaranteed Obligations to you when due or at any time thereafter. Neither you nor the Secured Parties shall be liable for failure to collect Guaranteed Obligations or to realize upon any collateral or security therefor, or any part thereof, or for any delay in so doing, nor shall you or any of the Secured Parties be under any obligation to take any action whatsoever with regard thereto. This Guaranty is absolute, unconditional and continuing, regardless of the validity, regularity or enforceability of any of the Guaranteed Obligations or the fact that a security interest or lien in any collateral or security therefor may not be enforceable by you“Code”), for qualification as a regulated investment company. Based on the benefit of the Secured Parties, or may otherwise be subject to equities or defenses or prior claims in favor of others or may be invalid or defective in any way and for any reason, including any action, or failure to act, on your part. The liability of the Guarantors under this Guaranty shall be unaffected by the death of any of the Guarantors. Payment by the Guarantors shall be made to you, for the benefit of the Secured Parties, at your office from time to time on demand as Guaranteed Obligations become dueforegoing, and one or more successive or concurrent actions may be brought hereon against provided the Guarantors (or any one or more of them) either in the same action or in separate actions. In the event any claim or action, or action on any judgment, based on this Guaranty, Reorganization is made or brought against the Guarantors, the Guarantors agree not to assert against you or any of the Secured Parties any set-off or counterclaim which the Companies may have, and, further, the Guarantors agree not to deduct, set-off, or seek to counterclaim for or recoup, any amounts which are or may be owed by you or any of the Secured Parties to the Guarantors, or for any loss of contribution from any other Guarantor. Each of the Guarantors represents, warrants and covenants to you, as agent for the Secured Parties, as an inducement to the Secured Parties to extend credit or provide financial accommodations to the Companies or on the Companies' behalf (i) that as of the date of this Guaranty, the fair saleable value of each of the Guarantor's assets exceeds its respective liabilities; (ii) that each Guarantor is meeting current liabilities as they mature; (iii) that the financial statements of each Guarantor furnished to you are true and correct and include in the footnotes thereto all contingent liabilities of each Guarantor and since the date of said financial statements there has been no material or adverse change in the financial condition, business, operations, assets or prospects of any of the Guarantors; (iv) that there are not now pending any material court or administrative proceedings or undischarged judgments against any of the Guarantors and no federal or state tax liens have been filed or threatened against any of the Guarantors nor is any Guarantor in default or claimed default under any agreement for borrowed money; (v) that each of the Guarantors shall immediately give you written notice of any material adverse change in its financial condition, including but not limited to a litigation commenced, tax liens filed, defaults claimed under its indebtedness for borrowed money or bankruptcy proceedings, that is by or against any Guarantor; (vi) that each of the Guarantors shall at such reasonable times as you request furnish its current financial statements to you and permit you or your representatives to inspect any and all of the Guarantors' offices each of the Guarantors' financial records and properties and make extracts therefrom in order to evaluate the financial condition of each Guarantor; (vii) that none of the Guarantors shall (A) mortgage, assign, pledge, transfer or otherwise permit any lien, charge, security interest, encumbrance or judgment to exist on any of its assets or goods, whether real or personal or mixed, whether now owned or hereafter acquired; (B) incur or create any Indebtedness; (C) assume, guarantee, endorse, or otherwise become liable upon the obligations of any person, firm, entity or corporation, (D) make any advance or loan to or any investment in any firm, entity, person, corporation or joint venture; (E) without your prior written consent, will not contract for, purchase, make expenditures for, lease pursuant to a Lease or otherwise incur obligations with respect to Capital Expenditures; and (viii) that this Guaranty has been duly authorized, executed and delivered by each Guarantor and constitutes the legal, valid and binding obligation of each Guarantor enforceable carried out in accordance with its terms and does not and will not violate or conflict with the Certificate of Incorporation, By-Laws, any agreement by which the Guarantors are bound or any rule of law, regulation or judgment to which any applicable laws of the Guarantors is subjectState of Delaware, nor is any consent or approval, which has not been received, required in connection with the execution, delivery, performance, validity or enforceability of this Guaranty. Each terms of the Guarantors represents Agreement and warrants that it has derived or expects to derive a financial or other benefit commensurate with the liability incurred by each of the Guarantors hereunder, from the obligations incurred and to be incurred by the Companies. All sums at any time to the credit of the Guarantors and any property of the Guarantors on which you, for the benefit of the Secured Parties, at any time have a lien or security interest, or of which you, as agent for the Secured Parties, at any time have possession, shall secure payment and performance of all Guaranteed Obligations and any and all other obligations of the Guarantors to you, as agent for the Secured Parties, however arising. Each of the Guarantors agrees that if any notification of intended disposition of collateral or of any other act by you is required by law and if a specific time period is not stated therein, such notification, if mailed by first class mail at least five days before such disposition or act, postage pre-paid, addressed to the Guarantors at the address set forth for the Companies statements in the Agreement or at any other address Representation Letter with regard to matters of the Guarantors appearing on your recordsfact, shall be deemed reasonably and properly given. The Guarantors shall have no right of subrogation, indemnification or recourse to any Guaranteed Obligations or collateral or guarantees therefor, or to any assets of the Companies. Upon the occurrence of any of the following eventsit is our opinion that:
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Franklin Custodian Funds)
Gentlemen. Reference is made For the purpose of rendering this opinion, I have examined the proceedings taken by Northern States Power Company, a Minnesota corporation, herein called the "Company," with respect to that certain Loan the issue and Security sale by the Company of $ principal amount of Senior Notes, Series due , % herein called the "Notes." In connection therewith I have participated in the preparation of the proceedings for the issuance and sale of the Notes including the Underwriting Agreement dated , between you and the Company relating to your purchase of the Notes, herein called the "Agreement, ," and have either participated in the preparation of or examined the (i) Indenture dated July ________ and the Supplemental Indenture dated as ________ __, 1997 ____, creating the Notes, all from the Company to Norwest Bank Minnesota, National Association, as trustee (as may be amended, modified or supplemented from time to time, the "Agreement"; capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Agreement), between the Lenders listed in the Agreement (and any amendments or supplements thereto) and you, as Lender and agent for the Lenders (you and the Lenders sometimes referred to herein as, the "Secured PartiesSenior Note Trustee"), (which Indenture and Supplemental Indenture are collectively referred to as the "Senior Note Indenture") and (ii) Trust Indenture dated as of February 1, 1937 and the Companies. Each Supplemental Trust Indenture thereto and the Supplemental Trust Indenture dated as of ____________________, creating the undersigned (herein each a "Guarantor" Bonds, all from the Company to Xxxxxx Trust and collectively the "Guarantors") hereby unconditionally jointly and severally guarantees and agrees to be liable for the prompt, full and indefeasible payment and performance when due of all now existing and future indebtedness, obligations or liabilities of the Companies to the Secured Parties, howsoever arising, whether direct or indirect, absolute or contingent, secured or unsecured, whether arising under the Agreement, the Note or the other documents executed and delivered in connection with the AgreementSavings Bank, as now written or as amended or supplemented hereafter, or by operation of law or otherwise, including, without limitation, all Secured Obligations of the Companies to the Secured Parties. Furthermore each of the Guarantors agrees to pay to you, as agent for the Secured Parties, on demand the amount of all expenses trustee (including reasonable attorney's fees) incurred by you or any of the Secured Parties in collecting or attempting to collect any of the Companies' Obligations to the Secured Parties, whether from the Companies, or from any other obligor, or from the Guarantors, or in realizing upon any collateral; which Trust Indenture and agrees to pay any interest at the highest lawful rate on all amounts payable to you, as agent for the Secured Parties, or the Secured Parties hereunder, even if such amount cannot be collected from the Companies. (All of the aforementioned obligations, liabilities, expenses and interest are hereinafter Supplemental Trust Indenture herein collectively called the "Guaranteed ObligationsFirst Mortgage Indenture"). To I also have participated in the extent you receive payment, for the benefit of the Secured Parties, on account of the Guaranteed Obligations, which payment is thereafter set aside or required to be repaid by you or the Secured Parties in whole or in part, then, to the extent of any sum not finally retained by you or the Secured Parties (regardless of whether such sum is recovered from you or the Secured Parties by the Companies, its trustee, or any other party acting for, on behalf preparation of or through examined the Companies or its representativeregistration statement and any amendments thereto and the accompanying prospectuses and any supplements thereto, as filed under the Securities Act of 1933, as amended (the "Act"), the Guarantors' obligation to you, as agent for the Secured Parties, and the Secured Parties under this Guaranty, as amended, modified or supplemented, shall remain in full force and effect (or be reinstated) until the Guarantors have made payment in full to you, for the benefit of the Secured Parties, therefor, which payment shall be due upon demand. This Guaranty is executed as an inducement to the Secured Parties to make loans or advances to the Companies or otherwise to extend credit or financial accommodations to the Companies, or to enter into or continue a financing arrangement with the Companies, and is executed in consideration of the Secured Parties doing or having done any of the foregoing. Each of the Guarantors agrees that any of the foregoing shall be done or extended by the Secured Parties, in their sole discretion, and shall be deemed to have been done or extended by the Secured Parties in consideration of and in reliance upon the execution of this Guaranty, but that nothing herein shall obligate the Secured Parties, to do any of the foregoing. Notice of acceptance of this Guaranty, the making of loans or advances, or the extension of credit under the Agreement, the amendment, execution or termination of the Agreement or any other agreements in connection therewith, and presentment, demand, protest, notice of protest, notice of non-payment and all other notices to which the Guarantors may be entitled (whether under this Guaranty or the Agreement), and your reliance on this Guaranty are hereby waived. Each of the Guarantors (a) waives notice of (i) changes in terms or extensions of the time of payment, (ii) the taking and releasing of collateral or guarantees (including the release of any of the Guarantors) and (iii) the settlement, compromise or release of any Guaranteed Obligations, and agrees that, as to each of the Guarantors, the amount of the Guaranteed Obligations shall not be diminished by any any of the foregoing; (b) waives any necessity, whether substantive or procedural, that judgment previously be rendered against the Companies or any other person or that the Companies or any person be joined in such cause, or that separate action be brought against the Companies or any other person; (c) waives any right to assert in any action or proceeding on this Guaranty any offsets, counterclaims or defenses (except payment) including, without limitation, defenses of Statute of Limitations and laches; (d) waives the performance of each and every condition precedent to which the Guarantors might otherwise be entitled by law; and (e) waives each and every right to which it may be entitled by virtue of applicable suretyship law to the full extent that such a law permits or does not forbid such waiver You shall not be required to mitigate damages or take any other action to reduce, collect or enforce the obligations or any Collateral therefore. Each of the Guarantors agrees that neither you, as agent for the Secured Parties, nor the Secured Parties need attempt to collect any Guaranteed Obligations from the other Guarantors or any other obligor or to realize upon any collateral, but may require the Guarantors to make immediate payment of Guaranteed Obligations to you when due or at any time thereafter. Neither you nor the Secured Parties shall be liable for failure to collect Guaranteed Obligations or to realize upon any collateral or security therefor, or any part thereof, or for any delay in so doing, nor shall you or any of the Secured Parties be under any obligation to take any action whatsoever with regard thereto. This Guaranty is absolute, unconditional and continuing, regardless of the validity, regularity or enforceability of any of the Guaranteed Obligations or the fact that a security interest or lien in any collateral or security therefor may not be enforceable by you, for the benefit of the Secured Parties, or may otherwise be subject to equities or defenses or prior claims in favor of others or may be invalid or defective in any way and for any reason, including any action, or failure to act, on your part. The liability of the Guarantors under this Guaranty shall be unaffected by the death of any of the Guarantors. Payment by the Guarantors shall be made to you, for the benefit of the Secured Parties, at your office from time to time on demand as Guaranteed Obligations become due, and one or more successive or concurrent actions may be brought hereon against the Guarantors (or any one or more of them) either in the same action or in separate actions. In the event any claim or action, or action on any judgment, based on this Guaranty, is made or brought against the Guarantors, the Guarantors agree not to assert against you or any of the Secured Parties any set-off or counterclaim which the Companies may have, and, further, the Guarantors agree not to deduct, set-off, or seek to counterclaim for or recoup, any amounts which are or may be owed by you or any of the Secured Parties to the Guarantors, or for any loss of contribution from any other Guarantor. Each of the Guarantors represents, warrants and covenants to you, as agent for the Secured Parties, as an inducement to the Secured Parties to extend credit or provide financial accommodations to the Companies or on the Companies' behalf (i) that as of the date of this Guaranty, the fair saleable value of each of the Guarantor's assets exceeds its respective liabilities; (ii) that each Guarantor is meeting current liabilities as they mature; (iii) that the financial statements of each Guarantor furnished to you are true and correct and include in the footnotes thereto all contingent liabilities of each Guarantor and since the date of said financial statements there has been no material or adverse change in the financial condition, business, operations, assets or prospects of any of the Guarantors; (iv) that there are not now pending any material court or administrative proceedings or undischarged judgments against any of the Guarantors and no federal or state tax liens have been filed or threatened against any of the Guarantors nor is any Guarantor in default or claimed default under any agreement for borrowed money; (v) that each of the Guarantors shall immediately give you written notice of any material adverse change in its financial condition, including but not limited to a litigation commenced, tax liens filed, defaults claimed under its indebtedness for borrowed money or bankruptcy proceedings, that is by or against any Guarantor; (vi) that each of the Guarantors shall at such reasonable times as you request furnish its current financial statements to you and permit you or your representatives to inspect any and all of the Guarantors' offices each of the Guarantors' financial records and properties and make extracts therefrom in order to evaluate the financial condition of each Guarantor; (vii) that none of the Guarantors shall (A) mortgage, assign, pledge, transfer or otherwise permit any lien, charge, security interest, encumbrance or judgment to exist on any of its assets or goods, whether real or personal or mixed, whether now owned or hereafter acquired; (B) incur or create any Indebtedness; (C) assume, guarantee, endorse, or otherwise become liable upon the obligations of any person, firm, entity or corporation, (D) make any advance or loan to or any investment in any firm, entity, person, corporation or joint venture; (E) without your prior written consent, will not contract for, purchase, make expenditures for, lease pursuant to a Lease or otherwise incur obligations with respect to Capital Expenditures; the Notes. Whenever the terms "Registration Statement" or "Prospectus" are used herein, they shall have the respective meanings set forth in the Agreement. My examination has extended to all statutes, records, instruments, and (viii) that this Guaranty has been duly authorized, executed and delivered by each Guarantor and constitutes documents which I have deemed necessary to examine for the legal, valid and binding obligation of each Guarantor enforceable in accordance with its terms and does not and will not violate or conflict with the Certificate of Incorporation, By-Laws, any agreement by which the Guarantors are bound or any rule of law, regulation or judgment to which any of the Guarantors is subject, nor is any consent or approval, which has not been received, required in connection with the execution, delivery, performance, validity or enforceability purposes of this Guaranty. Each of the Guarantors represents and warrants that it has derived or expects to derive a financial or other benefit commensurate with the liability incurred by each of the Guarantors hereunder, from the obligations incurred and to be incurred by the Companies. All sums at any time to the credit of the Guarantors and any property of the Guarantors on which you, for the benefit of the Secured Parties, at any time have a lien or security interest, or of which you, as agent for the Secured Parties, at any time have possession, shall secure payment and performance of all Guaranteed Obligations and any and all other obligations of the Guarantors to you, as agent for the Secured Parties, however arising. Each of the Guarantors agrees that if any notification of intended disposition of collateral or of any other act by you is required by law and if a specific time period is not stated therein, such notification, if mailed by first class mail at least five days before such disposition or act, postage pre-paid, addressed to the Guarantors at the address set forth for the Companies in the Agreement or at any other address of the Guarantors appearing on your records, shall be deemed reasonably and properly given. The Guarantors shall have no right of subrogation, indemnification or recourse to any Guaranteed Obligations or collateral or guarantees therefor, or to any assets of the Companies. Upon the occurrence of any of the following events:opinion.
Appears in 1 contract
Samples: Underwriting Agreement (Northern States Power Co /Mn/)
Gentlemen. Reference is made to that certain Loan and Security Agreement, dated July __, 1997 (as may be amended, modified or supplemented from time to time, the "Agreement"; capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Agreement), between the Lenders listed in the Agreement (and any amendments or supplements thereto) and you, as Lender and agent The undersigned hereby subscribes for the Lenders (you and the Lenders sometimes referred to herein as, the "Secured Parties"), and the Companies. Each of the undersigned (herein each a "Guarantor" and collectively the "Guarantors") hereby unconditionally jointly and severally guarantees and agrees to be liable purchase Warrants (“Insider Warrants”) at $1.10 per Insider Warrant, of Rhapsody Acquisition Corp. (the “Corporation”) for the prompt, full an aggregate purchase price of $ (“Purchase Price”). The purchase and indefeasible payment and performance when due of all now existing and future indebtedness, obligations or liabilities issuance of the Companies Insider Warrants shall occur simultaneously with the consummation of the Corporation’s initial public offering of securities (“IPO”) which is being underwritten by EarlyBirdCapital, Inc. (“EBC”). The Insider Warrants will be sold to the Secured Parties, howsoever arising, whether direct or indirect, absolute or contingent, secured or unsecured, whether arising under undersigned on a private placement basis and not part of the Agreement, IPO. At least 24 hours prior to the Note or effective date of the other documents executed and delivered registration statement filed in connection with the AgreementIPO (“Registration Statement”), as now written or as amended or supplemented hereafterthe undersigned shall deliver the Purchase Price to Xxxxxxxx Xxxxxx to hold in a non-interest bearing account until the Corporation consummates the IPO. Simultaneously with the consummation of the IPO, or by operation of law or otherwise, includingXxxxxxxx Xxxxxx shall deposit the Purchase Price, without limitationinterest or deduction, all Secured Obligations of into the Companies to trust fund (“Trust Fund”) established by the Secured Parties. Furthermore each of the Guarantors agrees to pay to you, as agent for the Secured Parties, on demand the amount of all expenses (including reasonable attorney's fees) incurred by you or any of the Secured Parties in collecting or attempting to collect any of the Companies' Obligations to the Secured Parties, whether from the Companies, or from any other obligor, or from the Guarantors, or in realizing upon any collateral; and agrees to pay any interest at the highest lawful rate on all amounts payable to you, as agent for the Secured Parties, or the Secured Parties hereunder, even if such amount cannot be collected from the Companies. (All of the aforementioned obligations, liabilities, expenses and interest are hereinafter collectively called the "Guaranteed Obligations"). To the extent you receive payment, Corporation for the benefit of the Secured PartiesCorporation’s public stockholders as described in the Corporation’s Registration Statement, on account pursuant to the terms of the Guaranteed Obligations, which payment is thereafter set aside or required an Investment Management Trust Agreement to be repaid by you or entered into between the Secured Parties in whole or in part, then, to the extent of any sum not finally retained by you or the Secured Parties (regardless of whether such sum is recovered from you or the Secured Parties by the Companies, its trustee, or any other party acting for, on behalf of or through the Companies or its representative), the Guarantors' obligation to you, as agent for the Secured Parties, Corporation and the Secured Parties under this Guaranty, as amended, modified or supplemented, shall remain in full force and effect (or be reinstated) until the Guarantors have made payment in full to you, for the benefit of the Secured Parties, therefor, which payment shall be due upon demand. This Guaranty is executed as an inducement to the Secured Parties to make loans or advances to the Companies or otherwise to extend credit or financial accommodations to the Companies, or to enter into or continue a financing arrangement with the Companies, and is executed in consideration of the Secured Parties doing or having done any of the foregoing. Each of the Guarantors agrees that any of the foregoing shall be done or extended by the Secured Parties, in their sole discretion, and shall be deemed to have been done or extended by the Secured Parties in consideration of and in reliance upon the execution of this Guaranty, but that nothing herein shall obligate the Secured Parties, to do any of the foregoing. Notice of acceptance of this Guaranty, the making of loans or advances, or the extension of credit under the Agreement, the amendment, execution or termination of the Agreement or any other agreements in connection therewith, and presentment, demand, protest, notice of protest, notice of non-payment and all other notices to which the Guarantors may be entitled (whether under this Guaranty or the Agreement), and your reliance on this Guaranty are hereby waived. Each of the Guarantors (a) waives notice of (i) changes in terms or extensions of the time of payment, (ii) the taking and releasing of collateral or guarantees (including the release of any of the Guarantors) and (iii) the settlement, compromise or release of any Guaranteed Obligations, and agrees that, as to each of the Guarantors, the amount of the Guaranteed Obligations shall not be diminished by any any of the foregoing; (b) waives any necessity, whether substantive or procedural, that judgment previously be rendered against the Companies or any other person or that the Companies or any person be joined in such cause, or that separate action be brought against the Companies or any other person; (c) waives any right to assert in any action or proceeding on this Guaranty any offsets, counterclaims or defenses (except payment) including, without limitation, defenses of Statute of Limitations and laches; (d) waives the performance of each and every condition precedent to which the Guarantors might otherwise be entitled by law; and (e) waives each and every right to which it may be entitled by virtue of applicable suretyship law to the full extent that such a law permits or does not forbid such waiver You shall not be required to mitigate damages or take any other action to reduce, collect or enforce the obligations or any Collateral therefore. Each of the Guarantors agrees that neither you, as agent for the Secured Parties, nor the Secured Parties need attempt to collect any Guaranteed Obligations from the other Guarantors or any other obligor or to realize upon any collateral, but may require the Guarantors to make immediate payment of Guaranteed Obligations to you when due or at any time thereafter. Neither you nor the Secured Parties shall be liable for failure to collect Guaranteed Obligations or to realize upon any collateral or security therefor, or any part thereof, or for any delay in so doing, nor shall you or any of the Secured Parties be under any obligation to take any action whatsoever with regard thereto. This Guaranty is absolute, unconditional and continuing, regardless of the validity, regularity or enforceability of any of the Guaranteed Obligations or the fact that a security interest or lien in any collateral or security therefor may not be enforceable by you, for the benefit of the Secured Parties, or may otherwise be subject to equities or defenses or prior claims in favor of others or may be invalid or defective in any way and for any reason, including any action, or failure to act, on your part. The liability of the Guarantors under this Guaranty shall be unaffected by the death of any of the Guarantors. Payment by the Guarantors shall be made to you, for the benefit of the Secured Parties, at your office from time to time on demand as Guaranteed Obligations become due, and one or more successive or concurrent actions may be brought hereon against the Guarantors (or any one or more of them) either in the same action or in separate actionsContinental Stock Transfer & Trust Company. In the event any claim or action, or action on any judgment, based on this Guaranty, that the IPO is made or brought against the Guarantors, the Guarantors agree not to assert against you or any consummated within 14 days of the Secured Parties any set-off or counterclaim which Purchase Price being delivered to Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx shall return the Companies may have, and, further, the Guarantors agree not to deduct, set-off, or seek to counterclaim for or recoup, any amounts which are or may be owed by you or any of the Secured Parties Purchase Price to the Guarantorsundersigned, without interest or for any loss of contribution from any other Guarantordeduction. Each of the Guarantors represents, warrants and covenants to you, as agent for the Secured Parties, as an inducement to the Secured Parties to extend credit or provide financial accommodations to the Companies or on the Companies' behalf (i) that as of the date of this Guaranty, the fair saleable value of each of the Guarantor's assets exceeds its respective liabilities; (ii) that each Guarantor is meeting current liabilities as they mature; (iii) that the financial statements of each Guarantor furnished to you are true and correct and include in the footnotes thereto all contingent liabilities of each Guarantor and since the date of said financial statements there has been no material or adverse change in the financial condition, business, operations, assets or prospects of any of the Guarantors; (iv) that there are not now pending any material court or administrative proceedings or undischarged judgments against any of the Guarantors and no federal or state tax liens have been filed or threatened against any of the Guarantors nor is any Guarantor in default or claimed default under any agreement for borrowed money; (v) that each of the Guarantors shall immediately give you written notice of any material adverse change in its financial condition, including but not limited to a litigation commenced, tax liens filed, defaults claimed under its indebtedness for borrowed money or bankruptcy proceedings, that is by or against any Guarantor; (vi) that each of the Guarantors shall at such reasonable times as you request furnish its current financial statements to you and permit you or your representatives to inspect any and all of the Guarantors' offices each of the Guarantors' financial records and properties and make extracts therefrom in order to evaluate the financial condition of each Guarantor; (vii) that none of the Guarantors shall (A) mortgage, assign, pledge, transfer or otherwise permit any lien, charge, security interest, encumbrance or judgment to exist on any of its assets or goods, whether real or personal or mixed, whether now owned or hereafter acquired; (B) incur or create any Indebtedness; (C) assume, guarantee, endorse, or otherwise become liable upon the obligations of any person, firm, entity or corporation, (D) make any advance or loan to or any investment in any firm, entity, person, corporation or joint venture; (E) without your prior written consent, will not contract for, purchase, make expenditures for, lease pursuant to a Lease or otherwise incur obligations with respect to Capital Expenditures; and (viii) that this Guaranty has been duly authorized, executed and delivered by each Guarantor and constitutes the legal, valid and binding obligation of each Guarantor enforceable in accordance with its terms and does not and will not violate or conflict with the Certificate of Incorporation, By-Laws, any agreement by which the Guarantors are bound or any rule of law, regulation or judgment to which any of the Guarantors is subject, nor is any consent or approval, which has not been received, required in connection with the execution, delivery, performance, validity or enforceability of this Guaranty. Each of the Guarantors The undersigned represents and warrants that it he has derived been advised that the Insider Warrants have not been registered under the Securities Act; that he is acquiring the Insider Warrants for his account for investment purposes only; that he has no present intention of selling or expects to derive otherwise disposing of the Insider Warrants in violation of the securities laws of the United States; that he is an “accredited investor” as defined by Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”); and that he is familiar with the proposed business, management, financial condition and affairs of the Corporation. Moreover, the undersigned agrees that he shall not sell or transfer the Insider Warrants until after the Corporation consummates a financial merger, capital stock exchange, asset acquisition or other benefit commensurate similar business combination with an operating business (“Business Combination”) and acknowledges that the liability incurred by each of the Guarantors hereunder, from the obligations incurred and to be incurred by the Companies. All sums at any time to the credit of the Guarantors and any property of the Guarantors certificates for such Insider Warrants shall contain a legend indicating such restriction on which you, for the benefit of the Secured Parties, at any time have a lien or security interest, or of which you, as agent for the Secured Parties, at any time have possession, shall secure payment and performance of all Guaranteed Obligations and any and all other obligations of the Guarantors to you, as agent for the Secured Parties, however arising. Each of the Guarantors agrees that if any notification of intended disposition of collateral or of any other act by you is required by law and if a specific time period is not stated therein, such notification, if mailed by first class mail at least five days before such disposition or act, postage pre-paid, addressed to the Guarantors at the address set forth for the Companies in the Agreement or at any other address of the Guarantors appearing on your records, shall be deemed reasonably and properly given. The Guarantors shall have no right of subrogation, indemnification or recourse to any Guaranteed Obligations or collateral or guarantees therefor, or to any assets of the Companies. Upon the occurrence of any of the following events:transferability.
Appears in 1 contract
Samples: Subscription Agreement (Rhapsody Acquisition Corp.)
Gentlemen. Reference is made to that certain Loan Financing Agreement between the Companies, the Agent and Security Agreementthe Lenders party thereto, dated July __March 12, 1997 (1999, as the same may be amended, modified or supplemented amended from time to time, time (the "Agreement"; capitalized ). Capitalized terms used but not herein and defined herein in the Financing Agreement shall have the same meanings assigned to such terms in the Agreement), between the Lenders listed in the Agreement (and any amendments or supplements thereto) and you, as Lender and agent for the Lenders (you and the Lenders sometimes referred to herein as, the "Secured Parties"), and the Companies. Each of the specified therein unless otherwise specifically defined herein.. The undersigned (herein each a the "Guarantor" and collectively the "Guarantors") hereby unconditionally jointly and severally guarantees and agrees to be liable for the prompt, full and indefeasible payment and performance when due of all now existing and future indebtedness, obligations or liabilities of the Companies or any one of them to you, as Agent on behalf of the Secured PartiesLenders, howsoever arising, whether direct or indirect, absolute or contingent, secured or unsecured, whether arising under the Agreement, the Note or the other documents executed and delivered in connection with the Agreement, Agreement as now written or as amended or supplemented hereafter, or by operation of law or otherwise, including, without limitation, all Secured Obligations (as defined in the Agreement) of the Companies or any one of them to you (and the Secured PartiesLenders). Furthermore each of Further the Guarantors Guarantor agrees to pay to you, as agent for on behalf of the Secured PartiesLenders, on demand the amount of all expenses (including reasonable attorney's fees) incurred by you or any of the Secured Parties in collecting or attempting to collect any of the Companies' Obligations obligations to the Secured Partiesyou, whether from the CompaniesCompanies or any one of them, or from any other obligor, or from the GuarantorsGuarantor, or in realizing upon any collateral; and agrees to pay any interest at the lesser of the Default Rate of Interest specified in the Agreement or the highest lawful rate on all amounts payable to you, as agent for the Secured Parties, or the Secured Parties you hereunder, even if such amount cannot be collected from the CompaniesCompanies or any one of them. (All of the aforementioned obligations, liabilities, expenses and interest are hereinafter collectively called the "Guaranteed Obligations"). To the extent you receive payment, for the benefit of the Secured Parties, payment on account of the Guaranteed ObligationsObligations guaranteed hereby, which payment is thereafter set aside or required to be repaid by you (or the Secured Parties any Lender) in whole or in part, then, to the extent of any sum not finally retained by you or the Secured Parties (regardless of whether such sum is recovered from you or the Secured Parties by the CompaniesCompanies or any one of them, its or their trustee, or any other party acting for, on behalf of or through any of the Companies or its their representative), the Guarantors' Guarantor's obligation to you, as agent for the Secured Parties, and the Secured Parties you under this Guaranty, as amended, modified or supplemented, shall remain in full force and effect (or be reinstated) until the Guarantors have Guarantor has made payment in full to you, for the benefit of the Secured Parties, you therefor, which payment shall be due upon demand. This Guaranty is executed as an inducement to the Secured Parties you to make loans or advances to the Companies Company or otherwise to extend credit or financial accommodations to the CompaniesCompany, or to enter into or continue a financing arrangement with the CompaniesCompany, and is executed in consideration of the Secured Parties your doing or having done any of the foregoing. Each of the Guarantors The Guarantor agrees that any of the foregoing shall be done or extended by the Secured Parties, you in their your sole discretion, and shall be deemed to have been done or extended by the Secured Parties you in consideration of and in reliance upon the execution of this Guaranty, but that nothing herein shall obligate the Secured Parties, you to do any of the foregoing. Notwithstanding anything herein to the contrary, the Obligations of the Guarantor hereunder are limited to $5,000,000 plus, in the event the Agent has to enforce its rights hereunder, including for payment hereunder, any applicable interest thereon, costs, fees and expenses (including attorneys fees). Notice of acceptance of this Guaranty, the making of loans or advances, or the extension of credit under the Agreement, the amendment, execution or termination of the Agreement or any other agreements in connection therewith, and presentment, demand, protest, notice of protest, notice of non-payment and all other notices to which the Guarantors Guarantor may be entitled (whether under this Guaranty or the Agreement), and your reliance on this Guaranty are hereby waived. Each of the Guarantors (a) The Guarantor also waives notice of (i) of: changes in terms or extensions of the time of payment, (ii) the taking and releasing of collateral or guarantees (including the release of any of the other Guarantors) and (iii) the settlement, compromise or release of any Guaranteed Obligations, and agrees agree that, as to each of the GuarantorsGuarantor, the amount of the Guaranteed Obligations shall not be diminished by any any of the foregoing; (b) waives any necessity, whether substantive or procedural, that judgment previously be rendered against the Companies or any other person or that the Companies or any person be joined in such cause, or that separate action be brought against the Companies or any other person; (c) waives any right to assert in any action or proceeding on this Guaranty any offsets, counterclaims or defenses (except payment) including, without limitation, defenses of Statute of Limitations and laches; (d) waives the performance of each and every condition precedent to which the Guarantors might otherwise be entitled by law; and (e) waives each and every right to which it may be entitled by virtue of applicable suretyship law to the full extent that such a law permits or does not forbid such waiver You shall not be required to mitigate damages or take any other action to reduce, collect or enforce the obligations or any Collateral therefore. Each of the Guarantors The Guarantor also agrees that neither you, as agent for the Secured Parties, nor the Secured Parties you need not attempt to collect any Guaranteed Obligations from the any other Guarantors or any other obligor or to realize upon any collateral, but may require the Guarantors Guarantor to make immediate payment of Guaranteed Obligations to you when due or at any time thereafter. Neither you nor the Secured Parties You shall not be liable for failure to collect Guaranteed Obligations or to realize upon any collateral or security therefor, or any part thereof, or for any delay in so doing, nor shall you or any of the Secured Parties be under any obligation to take any action whatsoever with regard thereto. This Guaranty is absolute, unconditional and continuing, regardless of the validity, regularity or enforceability of any of the Guaranteed Obligations or the fact that a security interest or lien in any collateral or security therefor may not be enforceable by you, for the benefit of the Secured Parties, you or may otherwise be subject to equities or defenses or prior claims in favor of others or may be invalid or defective in any way and for any reason, including any action, or failure to act, on your part. The liability of the Guarantors Guarantor under this Guaranty shall be unaffected by the death of any of the other Guarantors. Payment by the Guarantors Guarantor shall be made to you, for the benefit of the Secured Parties, you at your office from time to time on demand as Guaranteed Obligations become due, and one or more successive or concurrent actions may be brought hereon against the Guarantors Guarantor (or any one or more of them) either in the same action or in separate actions. In the event any claim or action, or action on any judgment, based on this Guaranty, is made or brought against the GuarantorsGuarantor, the Guarantors agree Guarantor agrees not to assert against you or any of the Secured Parties any set-off or counterclaim which the Companies Company may have, and, further, the Guarantors agree Guarantor agrees not to deduct, set-off, or seek to counterclaim for or recoup, any amounts which are or may be owed by you or any of the Secured Parties to the GuarantorsGuarantor, or for any loss of contribution from any other Guarantorguarantor. Each Furthermore, in any litigation based on the Guaranty in which you and the Guarantor shall be adverse parties, the Guarantor hereby waives trial by jury and waive the right to interpose any defense based upon any Statute of Limitations or any claim of laches and waive the performance of each and every condition precedent to which the Guarantor might otherwise be entitled by law. The Guarantor hereby consents to the in personam jurisdiction of the Guarantors representscourts of the State of New York. In the event that you bring any action or suit in any court of record of New York State or the Federal Government to enforce any or all liabilities of the Guarantor hereunder, warrants and covenants to you, as agent for service of process may be made on the Secured Parties, as an inducement Guarantor by mailing a copy of the summons to the Secured Parties to extend credit or provide financial accommodations to Guarantor at the Companies or on the Companies' behalf (i) that as of the date of this Guaranty, the fair saleable value of each of the Guarantor's assets exceeds its respective liabilities; (ii) that each Guarantor is meeting current liabilities as they mature; (iii) that the financial statements of each Guarantor furnished to you are true and correct and include in the footnotes thereto all contingent liabilities of each Guarantor and since the date of said financial statements there has been no material or adverse change in the financial condition, business, operations, assets or prospects of any of the Guarantors; (iv) that there are not now pending any material court or administrative proceedings or undischarged judgments against any of the Guarantors and no federal or state tax liens have been filed or threatened against any of the Guarantors nor is any Guarantor in default or claimed default under any agreement for borrowed money; (v) that each of the Guarantors shall immediately give you written notice of any material adverse change in its financial condition, including but not limited to a litigation commenced, tax liens filed, defaults claimed under its indebtedness for borrowed money or bankruptcy proceedings, that is by or against any Guarantor; (vi) that each of the Guarantors shall at such reasonable times as you request furnish its current financial statements to you and permit you or your representatives to inspect any and all of the Guarantors' offices each of the Guarantors' financial records and properties and make extracts therefrom in order to evaluate the financial condition of each Guarantor; (vii) that none of the Guarantors shall (A) mortgage, assign, pledge, transfer or otherwise permit any lien, charge, security interest, encumbrance or judgment to exist on any of its assets or goods, whether real or personal or mixed, whether now owned or hereafter acquired; (B) incur or create any Indebtedness; (C) assume, guarantee, endorse, or otherwise become liable upon the obligations of any person, firm, entity or corporation, (D) make any advance or loan to or any investment in any firm, entity, person, corporation or joint venture; (E) without your prior written consent, will not contract for, purchase, make expenditures for, lease pursuant to a Lease or otherwise incur obligations with respect to Capital Expenditures; and (viii) that this Guaranty has been duly authorized, executed and delivered by each Guarantor and constitutes the legal, valid and binding obligation of each Guarantor enforceable in accordance with its terms and does not and will not violate or conflict with the Certificate of Incorporation, By-Laws, any agreement by which the Guarantors are bound or any rule of law, regulation or judgment to which any of the Guarantors is subject, nor is any consent or approval, which has not been received, required in connection with the execution, delivery, performance, validity or enforceability of this Guaranty. Each of the Guarantors represents and warrants that it has derived or expects to derive a financial or other benefit commensurate with the liability incurred by each of the Guarantors hereunder, from the obligations incurred and to be incurred by the Companiesaddress below set forth. All sums at any time to the credit of the Guarantors Guarantor and any property of the Guarantors Guarantor on which you, for the benefit of the Secured Parties, you at any time have a lien or security interest, or of which you, as agent for the Secured Parties, you at any time have possession, shall secure payment and performance of all Guaranteed Obligations and any and all other obligations of the Guarantors Guarantor to you, as agent for the Secured Parties, you however arising. Each of the Guarantors agrees that if any notification of intended disposition of collateral or of any other act by you is required by law and if a specific time period is not stated therein, such notification, if mailed by first class mail at least five days before such disposition or act, postage pre-paid, addressed to the Guarantors at the address set forth for the Companies in the Agreement or at any other address of the Guarantors appearing on your records, shall be deemed reasonably and properly given. The Guarantors Guarantor shall have no right of subrogation, indemnification or recourse to any Guaranteed Obligations or collateral or guarantees therefor, or to any assets of the CompaniesCompany. Upon the occurrence of any of the following events:
Appears in 1 contract
Gentlemen. Reference is made to that certain Loan and Security Agreement, dated July __, 1997 (as may be amended, modified or supplemented from time to time, the "Agreement"; capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Agreement), between the Lenders listed in the Agreement (and any amendments or supplements thereto) and you, as Lender and agent The undersigned hereby subscribes for the Lenders (you and the Lenders sometimes referred to herein as, the "Secured Parties"), and the Companies. Each of the undersigned (herein each a "Guarantor" and collectively the "Guarantors") hereby unconditionally jointly and severally guarantees and agrees to be liable purchase 2,833,333 Warrants ("Insider Warrants") at $0.60 per Insider Warrant, of Renaissance Acquisition Corp. (the "Corporation") for the prompt, full an aggregate purchase price of $1,699,999.80 ("Purchase Price"). The purchase and indefeasible payment and performance when due of all now existing and future indebtedness, obligations or liabilities issuance of the Companies Insider Warrants shall occur simultaneously with the consummation of the Corporation's initial public offering of securities ("IPO") which is being underwritten by Ladenburg Xxxxxxxx & Co. Inc. ("Ladenburg"). The Insider Warrants will be sold to the Secured Parties, howsoever arising, whether direct or indirect, absolute or contingent, secured or unsecured, whether arising under undersigned on a private placement basis and not part of the Agreement, IPO. At least 24 hours prior to the Note or effective date of the other documents executed and delivered registration statement filed in connection with the AgreementIPO ("Registration Statement"), as now written or as amended or supplemented hereafterthe undersigned shall deliver the Purchase Price to Xxxxxxxx Xxxxxx ("GM") to hold in a non-interest bearing account until the Corporation consummates the IPO. Simultaneously with the consummation of the IPO, or by operation of law or otherwise, includingGM shall deposit the Purchase Price, without limitationinterest or deduction, all Secured Obligations of into the Companies to trust fund ("Trust Fund") established by the Secured Parties. Furthermore each of the Guarantors agrees to pay to you, as agent for the Secured Parties, on demand the amount of all expenses (including reasonable attorney's fees) incurred by you or any of the Secured Parties in collecting or attempting to collect any of the Companies' Obligations to the Secured Parties, whether from the Companies, or from any other obligor, or from the Guarantors, or in realizing upon any collateral; and agrees to pay any interest at the highest lawful rate on all amounts payable to you, as agent for the Secured Parties, or the Secured Parties hereunder, even if such amount cannot be collected from the Companies. (All of the aforementioned obligations, liabilities, expenses and interest are hereinafter collectively called the "Guaranteed Obligations"). To the extent you receive payment, Corporation for the benefit of the Secured PartiesCorporation's public stockholders as described in the Corporation's Registration Statement, on account pursuant to the terms of the Guaranteed Obligations, which payment is thereafter set aside or required an Investment Management Trust Agreement to be repaid by you or entered into between the Secured Parties in whole or in part, then, to the extent of any sum not finally retained by you or the Secured Parties (regardless of whether such sum is recovered from you or the Secured Parties by the Companies, its trustee, or any other party acting for, on behalf of or through the Companies or its representative), the Guarantors' obligation to you, as agent for the Secured Parties, Corporation and the Secured Parties under this Guaranty, as amended, modified or supplemented, shall remain in full force and effect (or be reinstated) until the Guarantors have made payment in full to you, for the benefit of the Secured Parties, therefor, which payment shall be due upon demand. This Guaranty is executed as an inducement to the Secured Parties to make loans or advances to the Companies or otherwise to extend credit or financial accommodations to the Companies, or to enter into or continue a financing arrangement with the Companies, and is executed in consideration of the Secured Parties doing or having done any of the foregoing. Each of the Guarantors agrees that any of the foregoing shall be done or extended by the Secured Parties, in their sole discretion, and shall be deemed to have been done or extended by the Secured Parties in consideration of and in reliance upon the execution of this Guaranty, but that nothing herein shall obligate the Secured Parties, to do any of the foregoing. Notice of acceptance of this Guaranty, the making of loans or advances, or the extension of credit under the Agreement, the amendment, execution or termination of the Agreement or any other agreements in connection therewith, and presentment, demand, protest, notice of protest, notice of non-payment and all other notices to which the Guarantors may be entitled (whether under this Guaranty or the Agreement), and your reliance on this Guaranty are hereby waived. Each of the Guarantors (a) waives notice of (i) changes in terms or extensions of the time of payment, (ii) the taking and releasing of collateral or guarantees (including the release of any of the Guarantors) and (iii) the settlement, compromise or release of any Guaranteed Obligations, and agrees that, as to each of the Guarantors, the amount of the Guaranteed Obligations shall not be diminished by any any of the foregoing; (b) waives any necessity, whether substantive or procedural, that judgment previously be rendered against the Companies or any other person or that the Companies or any person be joined in such cause, or that separate action be brought against the Companies or any other person; (c) waives any right to assert in any action or proceeding on this Guaranty any offsets, counterclaims or defenses (except payment) including, without limitation, defenses of Statute of Limitations and laches; (d) waives the performance of each and every condition precedent to which the Guarantors might otherwise be entitled by law; and (e) waives each and every right to which it may be entitled by virtue of applicable suretyship law to the full extent that such a law permits or does not forbid such waiver You shall not be required to mitigate damages or take any other action to reduce, collect or enforce the obligations or any Collateral therefore. Each of the Guarantors agrees that neither you, as agent for the Secured Parties, nor the Secured Parties need attempt to collect any Guaranteed Obligations from the other Guarantors or any other obligor or to realize upon any collateral, but may require the Guarantors to make immediate payment of Guaranteed Obligations to you when due or at any time thereafter. Neither you nor the Secured Parties shall be liable for failure to collect Guaranteed Obligations or to realize upon any collateral or security therefor, or any part thereof, or for any delay in so doing, nor shall you or any of the Secured Parties be under any obligation to take any action whatsoever with regard thereto. This Guaranty is absolute, unconditional and continuing, regardless of the validity, regularity or enforceability of any of the Guaranteed Obligations or the fact that a security interest or lien in any collateral or security therefor may not be enforceable by you, for the benefit of the Secured Parties, or may otherwise be subject to equities or defenses or prior claims in favor of others or may be invalid or defective in any way and for any reason, including any action, or failure to act, on your part. The liability of the Guarantors under this Guaranty shall be unaffected by the death of any of the Guarantors. Payment by the Guarantors shall be made to you, for the benefit of the Secured Parties, at your office from time to time on demand as Guaranteed Obligations become due, and one or more successive or concurrent actions may be brought hereon against the Guarantors (or any one or more of them) either in the same action or in separate actionsContinental Stock Transfer & Trust Company. In the event any claim or action, or action on any judgment, based on this Guaranty, that the IPO is made or brought against the Guarantors, the Guarantors agree not to assert against you or any consummated within 14 days of the Secured Parties any set-off or counterclaim which Purchase Price being delivered to GM, GM shall return the Companies may have, and, further, the Guarantors agree not to deduct, set-off, or seek to counterclaim for or recoup, any amounts which are or may be owed by you or any of the Secured Parties Purchase Price to the Guarantorsundersigned, without interest or for any loss of contribution from any other Guarantordeduction. Each of the Guarantors represents, warrants and covenants to you, as agent for the Secured Parties, as an inducement to the Secured Parties to extend credit or provide financial accommodations to the Companies or on the Companies' behalf (i) that as of the date of this Guaranty, the fair saleable value of each of the Guarantor's assets exceeds its respective liabilities; (ii) that each Guarantor is meeting current liabilities as they mature; (iii) that the financial statements of each Guarantor furnished to you are true and correct and include in the footnotes thereto all contingent liabilities of each Guarantor and since the date of said financial statements there has been no material or adverse change in the financial condition, business, operations, assets or prospects of any of the Guarantors; (iv) that there are not now pending any material court or administrative proceedings or undischarged judgments against any of the Guarantors and no federal or state tax liens have been filed or threatened against any of the Guarantors nor is any Guarantor in default or claimed default under any agreement for borrowed money; (v) that each of the Guarantors shall immediately give you written notice of any material adverse change in its financial condition, including but not limited to a litigation commenced, tax liens filed, defaults claimed under its indebtedness for borrowed money or bankruptcy proceedings, that is by or against any Guarantor; (vi) that each of the Guarantors shall at such reasonable times as you request furnish its current financial statements to you and permit you or your representatives to inspect any and all of the Guarantors' offices each of the Guarantors' financial records and properties and make extracts therefrom in order to evaluate the financial condition of each Guarantor; (vii) that none of the Guarantors shall (A) mortgage, assign, pledge, transfer or otherwise permit any lien, charge, security interest, encumbrance or judgment to exist on any of its assets or goods, whether real or personal or mixed, whether now owned or hereafter acquired; (B) incur or create any Indebtedness; (C) assume, guarantee, endorse, or otherwise become liable upon the obligations of any person, firm, entity or corporation, (D) make any advance or loan to or any investment in any firm, entity, person, corporation or joint venture; (E) without your prior written consent, will not contract for, purchase, make expenditures for, lease pursuant to a Lease or otherwise incur obligations with respect to Capital Expenditures; and (viii) that this Guaranty has been duly authorized, executed and delivered by each Guarantor and constitutes the legal, valid and binding obligation of each Guarantor enforceable in accordance with its terms and does not and will not violate or conflict with the Certificate of Incorporation, By-Laws, any agreement by which the Guarantors are bound or any rule of law, regulation or judgment to which any of the Guarantors is subject, nor is any consent or approval, which has not been received, required in connection with the execution, delivery, performance, validity or enforceability of this Guaranty. Each of the Guarantors The undersigned represents and warrants that it has derived been advised that the Insider Warrants have not been registered under the Securities Act; that it is acquiring the Insider Warrants for its account for investment purposes only; that it has no present intention of selling or expects to derive otherwise disposing of the Insider Warrants in violation of the securities laws of the United States; that it is an "accredited investor" as defined by Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the "Securities Act"); and that it is familiar with the proposed business, management, financial condition and affairs of the Corporation. Moreover, the undersigned agrees that it shall not sell or transfer the Insider Warrants until 30 days after the Corporation consummates a financial merger, capital stock exchange, asset acquisition or other benefit commensurate similar business combination with an operating business ("Business Combination") and acknowledges that the Insider Warrants will be held in escrow during such time period and the certificates for such Insider Warrants shall contain a legend indicating such restriction on transferability. The Corporation hereby acknowledges and agrees that, in the event the Company calls its public Warrants for redemption pursuant to that certain Warrant Agreement to be entered into by the Company and Continental Stock Transfer & Trust Company in connection with the liability incurred Company's IPO, the Company shall allow the undersigned or its affiliates to exercise any Insider Warrants by each surrendering such Insider Warrants for that number of shares of Common Stock equal to the quotient obtained by dividing (x) the product of the Guarantors hereundernumber of shares of Common Stock underlying the Insider Warrants, from the obligations incurred and to be incurred multiplied by the Companies. All sums at any time to difference between the credit of Warrant exercise price and the Guarantors and any property of the Guarantors on which you, for the benefit of the Secured Parties, at any time have a lien or security interest, or of which you, as agent for the Secured Parties, at any time have possession, shall secure payment and performance of all Guaranteed Obligations and any and all other obligations of the Guarantors to you, as agent for the Secured Parties, however arising. Each of the Guarantors agrees that if any notification of intended disposition of collateral or of any other act "Fair Market Value" (defined below) by you is required by law and if a specific time period is not stated therein, such notification, if mailed by first class mail at least five days before such disposition or act, postage pre-paid, addressed to the Guarantors at the address set forth for the Companies in the Agreement or at any other address of the Guarantors appearing on your records, shall be deemed reasonably and properly given. The Guarantors shall have no right of subrogation, indemnification or recourse to any Guaranteed Obligations or collateral or guarantees therefor, or to any assets of the Companies. Upon the occurrence of any of the following events:(y) the
Appears in 1 contract
Samples: Subscription Agreement (Renaissance Acquisition Corp.)
Gentlemen. Reference is made This will evidence Lender's agreement to make Borrower that certain loan (the "Loan") in an amount not to exceed SIX HUNDRED THOUSAND AND NO/00 DOLLARS ($600,000), said Loan and Security Agreement, dated July __, 1997 to be secured in part by the foregoing (as may be amended, modified or supplemented from time to timecollectively, the "AgreementCollateral"; capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Agreement), between the Lenders listed in the Agreement (and any amendments or supplements thereto) and you, as Lender and agent for the Lenders (you and the Lenders sometimes referred to herein as, the "Secured Parties"), and the Companies. Each of the undersigned (herein each a "Guarantor" and collectively the "Guarantors") hereby unconditionally jointly and severally guarantees and agrees to be liable for the prompt, full and indefeasible payment and performance when due of all now existing and future indebtedness, obligations or liabilities of the Companies to the Secured Parties, howsoever arising, whether direct or indirect, absolute or contingent, secured or unsecured, whether arising under the Agreement, the Note or the other documents executed and delivered in connection with the Agreement, as now written or as amended or supplemented hereafter, or by operation of law or otherwise, including, without limitation, all Secured Obligations of the Companies to the Secured Parties. Furthermore each of the Guarantors agrees to pay to you, as agent for the Secured Parties, on demand the amount of all expenses (including reasonable attorney's fees) incurred by you or any of the Secured Parties in collecting or attempting to collect any of the Companies' Obligations to the Secured Parties, whether from the Companies, or from any other obligor, or from the Guarantors, or in realizing upon any collateral; and agrees to pay any interest at the highest lawful rate on all amounts payable to you, as agent for the Secured Parties, or the Secured Parties hereunder, even if such amount cannot be collected from the Companies. (All of the aforementioned obligations, liabilities, expenses and interest are hereinafter collectively called the "Guaranteed Obligations"). To the extent you receive payment, for the benefit of the Secured Parties, on account of the Guaranteed Obligations, which payment is thereafter set aside or required to be repaid by you or the Secured Parties in whole or in part, then, to the extent of any sum not finally retained by you or the Secured Parties (regardless of whether such sum is recovered from you or the Secured Parties by the Companies, its trustee, or any other party acting for, on behalf of or through the Companies or its representative), the Guarantors' obligation to you, as agent for the Secured Parties, and the Secured Parties under this Guaranty, as amended, modified or supplemented, shall remain in full force and effect (or be reinstated) until the Guarantors have made payment in full to you, for the benefit of the Secured Parties, therefor, which payment shall be due upon demand. This Guaranty is executed as an inducement to the Secured Parties to make loans or advances to the Companies or otherwise to extend credit or financial accommodations to the Companies, or to enter into or continue a financing arrangement with the Companies, and is executed in consideration of the Secured Parties doing or having done any of the foregoing. Each of the Guarantors agrees that any of the foregoing shall be done or extended by the Secured Parties, in their sole discretion, and shall be deemed to have been done or extended by the Secured Parties in consideration of and in reliance upon the execution of this Guaranty, but that nothing herein shall obligate the Secured Parties, to do any of the foregoing. Notice of acceptance of this Guaranty, the making of loans or advances, or the extension of credit under the Agreement, the amendment, execution or termination of the Agreement or any other agreements in connection therewith, and presentment, demand, protest, notice of protest, notice of non-payment and all other notices to which the Guarantors may be entitled (whether under this Guaranty or the Agreement), and your reliance on this Guaranty are hereby waived. Each of the Guarantors (a) waives notice of ): (i) changes a security interest in terms and to the furniture, fixtures and equipment now owned or extensions hereafter acquired by Borrower and described on Exhibit "A" attached hereto and made a part hereof (the "Equipment") and all proceeds derived therefrom, as evidenced by a Security Agreement of the time of paymenteven date herewith, (ii) by the taking and releasing assignment by RTI INC., a New York corporation ("RTI" or "Guarantor") of collateral or guarantees (including the release of any l00' of the Guarantors) issued and outstanding shares of all classes of stock of Borrower, as evidenced by a Pledge and Security Agreement of even date herewith, and (iii) by a first lien Deed of Trust, Security Agreement and Financing Statement ("Deed of Trust") and Assignment of Rents and Leases and Security Agreement ("Assignment"), both of even date herewith, covering the settlementfollowing described real property together with all permanent improvements thereon or to be constructed thereon, compromise or release to wit: Lots 3 through 20 and 41 through 58, Block 15, WESTWAY UNIT II, an addition to El Paso County, Texas, according to the plat thereof on file in Volume 17, Page 35, Real Property Records, El Paso County, Texas (the "Property") The Loan shall be additionally secured by the absolute and unconditional guaranty agreement of any Guaranteed Obligations, and agrees that, RTI. The Loan shall be evidenced by a Promissory Note in substantially the form attached hereto as to each of the Guarantors, Exhibit "B" in the amount of $600,000.00 (the Guaranteed Obligations shall not "Note"), representing funds to be diminished advanced to reimburse Borrower for acquisition costs associated with the Property, the costs incurred by any any Borrower in the renovation of the foregoing; (b) waives any necessity, whether substantive or procedural, that judgment previously be rendered against Property and the Companies or any other person or that expenses associated with the Companies or any person be joined in such cause, or that separate action be brought against the Companies or any other person; (c) waives any right to assert in any action or proceeding on this Guaranty any offsets, counterclaims or defenses (except payment) including, without limitation, defenses of Statute of Limitations purchase and laches; (d) waives the performance of each and every condition precedent to which the Guarantors might otherwise be entitled by law; and (e) waives each and every right to which it may be entitled by virtue of applicable suretyship law to the full extent that such a law permits or does not forbid such waiver You shall not be required to mitigate damages or take any other action to reduce, collect or enforce the obligations or any Collateral therefore. Each installation of the Guarantors agrees that neither you, as agent for the Secured Parties, nor the Secured Parties need attempt to collect any Guaranteed Obligations from the other Guarantors or any other obligor or to realize upon any collateral, but may require the Guarantors to make immediate payment of Guaranteed Obligations to you when due or at any time thereafter. Neither you nor the Secured Parties shall be liable for failure to collect Guaranteed Obligations or to realize upon any collateral or security therefor, or any part thereof, or for any delay in so doing, nor shall you or any of the Secured Parties be under any obligation to take any action whatsoever with regard thereto. This Guaranty is absolute, unconditional and continuing, regardless of the validity, regularity or enforceability of any of the Guaranteed Obligations or the fact that a security interest or lien in any collateral or security therefor may not be enforceable by you, for the benefit of the Secured Parties, or may otherwise be subject to equities or defenses or prior claims in favor of others or may be invalid or defective in any way and for any reason, including any action, or failure to act, on your part. The liability of the Guarantors under this Guaranty shall be unaffected by the death of any of the Guarantors. Payment by the Guarantors shall be made to you, for the benefit of the Secured Parties, at your office from time to time on demand as Guaranteed Obligations become due, and one or more successive or concurrent actions may be brought hereon against the Guarantors (or any one or more of them) either in the same action or in separate actions. In the event any claim or action, or action on any judgment, based on this Guaranty, is made or brought against the Guarantors, the Guarantors agree not to assert against you or any of the Secured Parties any set-off or counterclaim which the Companies may have, and, further, the Guarantors agree not to deduct, set-off, or seek to counterclaim for or recoup, any amounts which are or may be owed by you or any of the Secured Parties to the Guarantors, or for any loss of contribution from any other Guarantor. Each of the Guarantors represents, warrants and covenants to you, as agent for the Secured Parties, as an inducement to the Secured Parties to extend credit or provide financial accommodations to the Companies or on the Companies' behalf (i) that as of the date of this Guaranty, the fair saleable value of each of the Guarantor's assets exceeds its respective liabilities; (ii) that each Guarantor is meeting current liabilities as they mature; (iii) that the financial statements of each Guarantor furnished to you are true and correct and include in the footnotes thereto all contingent liabilities of each Guarantor and since the date of said financial statements there has been no material or adverse change in the financial condition, business, operations, assets or prospects of any of the Guarantors; (iv) that there are not now pending any material court or administrative proceedings or undischarged judgments against any of the Guarantors and no federal or state tax liens have been filed or threatened against any of the Guarantors nor is any Guarantor in default or claimed default under any agreement for borrowed money; (v) that each of the Guarantors shall immediately give you written notice of any material adverse change in its financial condition, including but not limited to a litigation commenced, tax liens filed, defaults claimed under its indebtedness for borrowed money or bankruptcy proceedings, that is by or against any Guarantor; (vi) that each of the Guarantors shall at such reasonable times as you request furnish its current financial statements to you and permit you or your representatives to inspect any and all of the Guarantors' offices each of the Guarantors' financial records and properties and make extracts therefrom in order to evaluate the financial condition of each Guarantor; (vii) that none of the Guarantors shall (A) mortgage, assign, pledge, transfer or otherwise permit any lien, charge, security interest, encumbrance or judgment to exist on any of its assets or goods, whether real or personal or mixed, whether now owned or hereafter acquired; (B) incur or create any Indebtedness; (C) assume, guarantee, endorse, or otherwise become liable upon the obligations of any person, firm, entity or corporation, (D) make any advance or loan to or any investment in any firm, entity, person, corporation or joint venture; (E) without your prior written consent, will not contract for, purchase, make expenditures for, lease pursuant to a Lease or otherwise incur obligations with respect to Capital Expenditures; and (viii) that this Guaranty has been duly authorized, executed and delivered by each Guarantor and constitutes the legal, valid and binding obligation of each Guarantor enforceable in accordance with its terms and does not and will not violate or conflict with the Certificate of Incorporation, By-Laws, any agreement by which the Guarantors are bound or any rule of law, regulation or judgment to which any of the Guarantors is subject, nor is any consent or approval, which has not been received, required in connection with the execution, delivery, performance, validity or enforceability of this Guaranty. Each of the Guarantors represents and warrants that it has derived or expects to derive a financial or other benefit commensurate with the liability incurred by each of the Guarantors hereunder, from the obligations incurred and to be incurred by the Companies. All sums at any time to the credit of the Guarantors and any property of the Guarantors on which you, for the benefit of the Secured Parties, at any time have a lien or security interest, or of which you, as agent for the Secured Parties, at any time have possession, shall secure payment and performance of all Guaranteed Obligations and any and all other obligations of the Guarantors to you, as agent for the Secured Parties, however arising. Each of the Guarantors agrees that if any notification of intended disposition of collateral or of any other act by you is required by law and if a specific time period is not stated therein, such notification, if mailed by first class mail at least five days before such disposition or act, postage pre-paid, addressed to the Guarantors at the address set forth for the Companies in the Agreement or at any other address of the Guarantors appearing on your records, shall be deemed reasonably and properly given. The Guarantors shall have no right of subrogation, indemnification or recourse to any Guaranteed Obligations or collateral or guarantees therefor, or to any assets of the Companies. Upon the occurrence of any of the following events:Equipment.
Appears in 1 contract
Samples: Loan Agreement (Rti Inc)