Interest and Dividend Coverage Ratio. For the four-quarter period ending on the date of the enclosed consolidated financial statements: EBIT: $__________ to: sum of Interest Expense: $_______ Dividends on Preferred Stock: $_______ $___________ Ratio: ___ to 1.00 (Required: not less than 1.50 to 1.00). EXHIBIT C GUARANTY (Joint and Several) FOR VALUE RECEIVED and in consideration of entry by the Banks (as defined in the Term Loan Agreement referred to below) and JPMORGAN CHASE BANK, N.A., as agent for the Banks (in such capacity, together with it successors and assigns, called the “Agent”) into that certain Term Loan Agreement, dated as of February 5, 2016 (as thereafter amended, modified, extended, renewed, restated or replaced from time to time called the “Term Loan Agreement”) among the Banks, the Agent and OTTER TAIL CORPORATION, a Minnesota corporation (hereinafter called the “Debtor”), the undersigned corporations (the “Guarantors”) hereby JOINTLY AND SEVERALLY unconditionally guarantee the full and prompt payment when due, whether by acceleration or otherwise, and at all times thereafter, of all obligations of the Debtor to the Banks or the Agent under the Term Loan Agreement, each Note issued thereunder, and each other Loan Document (as defined therein), including without limitation all future advances, and all obligations to reimburse the Agent for all of such obligations that arise after the filing of a petition by or against the Debtor under the Bankruptcy Code, even if the obligations do not accrue because of the automatic stay under Bankruptcy Code Section 362 or otherwise (all such obligations being hereinafter collectively called the “Liabilities”), and the Guarantors further jointly and severally agree to pay all expenses (including attorneys’ fees and legal expenses) paid or incurred by the Banks or Agent in endeavoring to collect the Liabilities, or any part thereof, and in enforcing this guaranty. The Guarantors agree that, in the event of the dissolution or insolvency of the Debtor or any Guarantor, or the inability of the Debtor or any Guarantor to pay debts as they mature, or an assignment by the Debtor or any Guarantor for the benefit of creditors, or the institution of any proceeding by or against the Debtor or the Guarantor alleging that the Debtor or any Guarantor is insolvent or unable to pay debts as they mature, and if such event shall occur at a time when any of the Liabilities may not then be due and payable, the Guarantors will pay to the Agent forthwith the full amount which would be payable hereunder by the Guarantors if all Liabilities were then due and payable. In addition to, and without limitation of, any rights of the Agent and the Banks under applicable law, if any Event of Default occurs and is continuing under the Term Loan Agreement, upon written direction by the Agent to such effect any and all deposits (including all account balances, whether provisional or final and whether or not collected or available) and any other Indebtedness (as defined in the Term Loan Agreement) at any time held or owing by the Agent or any Bank to or for the credit or account of any Guarantor may be offset and applied toward the payment of the Liabilities and all obligations of the Guarantors hereunder, whether or not the Liabilities and all obligations of the Guarantors hereunder, or any part thereof, shall then be due. This guaranty shall in all respects be a continuing, absolute and unconditional guaranty, and shall remain in full force and effect (notwithstanding, without limitation, the dissolution of any Guarantor or that at any time or from time to time all Liabilities may have been paid in full). This guaranty is a guaranty of payment and performance and not merely a guaranty of collection. The Guarantors further agree that, if at any time all or any part of any payment theretofore applied by the Agent or the Banks to any of the Liabilities is or must be rescinded or returned by the Agent or the Banks for any reason whatsoever (including, without limitation, the insolvency, bankruptcy or reorganization of the Debtor), such Liabilities shall, for the purposes of this guaranty, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence, notwithstanding such application by the Agent or the Banks, and this guaranty shall continue to be effective or be reinstated, as the case may be, as to such Liabilities, all as though such application by the Agent or the Banks had not been made. The Agent and the Banks may, from time to time, at their sole discretion and without notice to any Guarantor, take any or all of the following actions: (a) be granted a security interest in any property to secure any of the Liabilities or the Guaranty Obligations, (b) retain or obtain the primary or secondary obligation of any obligor or obligors, in addition to the Guarantors, with respect to any of the Liabilities, (c) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Liabilities, or release or compromise any obligation of any nature of any other obligor with respect to any of the Liabilities, (d) release its security interest in, or surrender, release or permit any substitution or exchange for, all or any part of any property securing any of the Liabilities or any obligation hereunder, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such property, and (e) resort to any Guarantor for payment of any of the Liabilities, whether or not the Agent and the Banks (i) shall have resorted to any property securing any of the Liabilities or (ii) shall have proceeded against any other obligor primarily or secondarily obligated with respect to any of the Liabilities including without limitation any other Guarantor (all of the actions referred to in preceding clauses (i) and (ii) being hereby expressly waived by each Guarantor). Any amounts received by the Agent and the Banks from whatsoever source on account of the Liabilities may be applied by it toward the payment of such of the Liabilities, and in such order of application, as the Agent may from time to time elect. Until such time as this guaranty shall have been discontinued and the Agent and the Banks shall have received payment of the full amount of all Liabilities and of all obligations of the Guarantors hereunder, no payment made by or for the account of the Guarantors pursuant to this guaranty shall entitle the Guarantors by subrogation or otherwise to any payment by the Debtor or from or out of any property of the Debtor and the Guarantors shall not exercise any right or remedy against the Debtor or any property of the Debtor by reason of any performance by the Guarantors of this guaranty. The Guarantors hereby expressly waive: (a) notice of the acceptance by the Agent or the Banks of this guaranty, (b) notice of the existence or creation or non-payment of all or any of the Liabilities, (c) presentment, demand, notice of dishonor, protest, and all other notices whatsoever, and (d) all diligence in collection or protection of or realization upon the Liabilities or any part thereof, any obligation hereunder, or any security for, or guaranty of, any of the foregoing. Each Bank may from time to time without notice to the Guarantors, assign or transfer its Percentage (as defined in the Term Loan Agreement) or any or all of the Liabilities or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Liabilities shall be and remain Liabilities for the purposes of this guaranty, and each and every immediate and successive assignee or transferee of any of the Liabilities or of any interest therein shall, to the extent of the interest of such assignee or transferee in the Liabilities, be entitled to the benefits of this guaranty to the same extent as if such assignee or transferee were such Bank. Unless the Agent shall otherwise consent in writing, the Agent shall have the sole right to enforce this guaranty, as Agent as provided in the Term Loan Agreement, for the benefit of the Agent and the Banks (including any transferee, as provided in the prior paragraph). Each Guarantor hereby warrants to the Agent and the Banks that such Guarantor now has, and will continue to have independent means of obtaining information concerning the affairs, financial condition and business of the Debtor. Neither the Agent nor the Bank shall have any duty or responsibility to provide the Guarantors with any credit or other information concerning the affairs, financial condition or business of the Debtor which may come into the Agent’s or the Bank’s possession. No delay on the part of the Agent or any Bank in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by the Agent or any Bank of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy; nor shall any modification or waiver of any of the provisions of this guaranty be binding upon the Agent or any Bank except as expressly set forth in a writing duly signed and delivered on behalf of the Agent and the Required Banks (as defined in the Term Loan Agreement). No action of the Agent or the Banks permitted hereunder shall in any way affect or impair the rights of the Agent or the Banks and the obligations of the Guarantors under this guaranty. For the purposes of this guaranty, Liabilities shall include all obligations of the Debtor to the Agent or the Banks specified as Liabilities, notwithstanding any right or power of the Debtor or anyone else to assert any claim or defense as to the invalidity or unenforceability of any such obligation, and no such claim or defense shall affect or impair the obligations of the Guarantors hereunder, and shall specifically include, without limitation, any and all interest, fees or commissions included in the Liabilities and accruing or payable after the commencement of any bankruptcy or insolvency proceedings, notwithstanding any provision or rule of law which might restrict the rights of the Bank to collect such obligations from the Debtor. The obligations of the Guarantors under this guaranty shall be absolute and unconditional irrespective of any circumstance whatsoever which might constitute a legal or equitable discharge or defense of any Guarantor. The Guarantors hereby acknowledge that there are no conditions to the effectiveness of this guaranty. This guaranty shall be binding upon each Guarantor, and upon the successors and assigns of each Guarantor. Wherever possible, each provision of this guaranty shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this guaranty. To the extent that any Guarantor shall make a payment under this guaranty (a “Guarantor Payment”) which, taking into account all other Guarantor Payments then previously or concurrently made by any other Guarantor, exceeds the amount which otherwise would have been paid by or attributable to such Guarantor if each Guarantor had paid the aggregate Liabilities satisfied by such Guarantor Payment in the same proportion as such Guarantor’s “Allocable Amount” (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Guarantors as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment in full in cash of the Guarantor Payment and the Liabilities (other than unliquidated obligations that have not yet arisen), and the Term Loan Agreement has terminated, such Guarantor shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Guarantor for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment. As of any date of determination, the “Allocable Amount” of any Guarantor shall be equal to the excess of the fair saleable value of the property of such Guarantor over the total liabilities of such Guarantor (including the maximum amount reasonably expected to become due in respect of contingent liabilities, calculated, without duplication, assuming each other Guarantor that is also liable for such contingent liability pays its ratable share thereof), giving effect to all payments made by other Guarantors as of such date in a manner to maximize the amount of such contributions. The preceding paragraph is intended only to define the relative rights of the Guarantors, and nothing set forth in such paragraph is intended to or shall impair the obligations of the Guarantors, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this guaranty. The rights of the indemnifying Guarantors against other Guarantors under the preceding paragraph shall be exercisable upon the full and indefeasible payment of the Liabilities in cash and the termination of the Term Loan Agreement. The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Guarantor or Guarantors to which such contribution and indemnification is owing. THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS GUARANTY SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS OF THE UNITED STATES APPLICABLE TO NATIONAL BANKS. THE AGENT AND THE BANKS (BY ACCEPTING THIS GUARANTY) AND THE GUARANTORS HEREBY EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS GUARANTY OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. AT THE OPTION OF THE AGENT, THIS GUARANTY MAY BE ENFORCED IN ANY FEDERAL COURT SITTING IN MINNESOTA; AND THE GUARANTORS CONSENT TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVE ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT ANY GUARANTOR COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS GUARANTY, THE AGENT, AT ITS OPTION, SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES ABOVE DESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE. SIGNED AND DELIVERED as of February 5, 2016. Varistar Corporation BTD Manufacturing, Inc. Northern Pipe Products, Inc. Vinyltech Corporation By: Title: EXHIBIT C Opinion of Counsel [Attached] 71 EXHIBIT D Assignment and Assumption ASSIGNMENT AND ASSUMPTION AGREEMENT This Agreement, dated as of the date set forth in Item I (each reference to an “Item” herein shall be deemed to refer to such Item on Schedule I hereto), is made by the party named in Item II, (the “Assignor”) to the entity named in Item III (the “Assignee”).

Appears in 1 contract

Samples: Term Loan Agreement (Otter Tail Corp)

Interest and Dividend Coverage Ratio. For the four-quarter period ending on the date of the enclosed consolidated financial statements: EBIT: ~~$__________~~ $ to: sum of Interest Expense: $~~____~~___ Dividends on Preferred Stock: $__~~____~~_ ~~$___________~~ $ Ratio: ___ to 1.00 (Required: not less than 1.50 to 1.00). ~~EXHIBIT~~ OTTER TAIL CORPORATION By: Title: [chief financial officer] Exhibit C GUARANTY ~~(Joint and Several)~~ FOR VALUE RECEIVED and in consideration of entry by the Banks (as defined in the ~~Term Loan Agreement referred to below~~Credit Agreement) and ~~JPMORGAN CHASE BANK, N.A.~~U.S. BANK NATIONAL ASSOCIATION, as agent for the Banks (in such capacity, together with it successors and assigns, called the “Agent”) into that certain ~~Term Loan~~ Credit Agreement, dated as of ~~February 5~~April 26, ~~2016~~ 2006 (as thereafter amended, modified, extended, renewed, restated or replaced from time to time called the “~~Term Loan~~ Credit Agreement”) among the Banks, the Agent and OTTER TAIL CORPORATION, a Minnesota corporation (hereinafter called the “Debtor”), ~~the undersigned corporations~~ VARISTAR CORPORATION, a Minnesota corporation (the “~~Guarantors~~Guarantor”) hereby ~~JOINTLY AND SEVERALLY~~ unconditionally ~~guarantee~~ guarantees the full and prompt payment when due, whether by acceleration or otherwise, and at all times thereafter, of all obligations of the Debtor to the Banks or the Agent under the ~~Term Loan~~ Credit Agreement, each Note issued thereunder, and each other Loan Document (as defined therein), including without limitation all future advances, and all obligations to reimburse the Agent for drawings under all Letters of Credit, and all of such obligations that arise after the filing of a petition by or against the Debtor under the Bankruptcy Code, even if the obligations do not accrue because of the automatic stay under Bankruptcy Code Section 362 or otherwise (all such obligations being hereinafter collectively called the “Liabilities”), and the ~~Guarantors~~ Guarantor further ~~jointly and severally agree~~ agrees to pay all expenses (including attorneys’ fees and legal expenses) paid or incurred by the Banks or Agent in endeavoring to collect the Liabilities, or any part thereof, and in enforcing this guaranty. The ~~Guarantors agree~~ Guarantor agrees that, in the event of the dissolution or insolvency of the Debtor or ~~any~~ the Guarantor, or the inability of the Debtor or ~~any~~ the Guarantor to pay debts as they mature, or an assignment by the Debtor or ~~any~~ the Guarantor for the benefit of creditors, or the institution of any proceeding by or against the Debtor or the Guarantor alleging that the Debtor or ~~any~~ the Guarantor is insolvent or unable to pay debts as they mature, and if such event shall occur at a time when any of the Liabilities may not then be due and payable, the ~~Guarantors~~ Guarantor will pay to the Agent forthwith the full amount which would be payable hereunder by the ~~Guarantors~~ Guarantor if all Liabilities were then due and payable. In addition to, and without limitation of, any rights of the Agent and the Banks under applicable law, if any Event of Default occurs and is continuing under the Term Loan Agreement, upon written direction by the Agent to such effect any and all deposits (including all account balances, whether provisional or final and whether or not collected or available) and any other Indebtedness (as defined in the Term Loan Agreement) at any time held or owing by the Agent or any Bank to or As additional security for the ~~credit or account~~ payment of ~~any Guarantor may be offset and applied toward the payment~~ all of the Liabilities and all obligations of the ~~Guarantors hereunder~~Guarantor hereunder (collectively, the “Guaranty Obligations”), the Guarantor grants to the Agent for the benefit of itself and the Banks a security interest in, a lien on, and an express contractual right to set off against, each deposit account and all deposit account balances, cash and any other property of the Guarantor now or hereafter maintained with, or in the possession of, the Agent. Upon the occurrence of any default hereunder (as described in the immediately preceding paragraph), the Agent may: (a) refuse to allow withdrawals from any such deposit account; (b) apply the amount of such deposit account balances and the other assets of the Guarantor described above to the Guaranty Obligations; and (c) offset any other obligation of the Agent against the Guaranty Obligations; all whether or not the ~~Liabilities~~ Guaranty Obligations are then due or have been accelerated and all ~~obligations~~ without any advance or contemporaneous notice or demand of any kind to the ~~Guarantors hereunder~~Guarantor, ~~or any part thereof, shall then be due~~such notice and demand being expressly waived. This guaranty shall in all respects be a continuing, absolute and unconditional guaranty, and shall remain in full force and effect (notwithstanding, without limitation, the dissolution of ~~any~~ the Guarantor or that at any time or from time to time all Liabilities may have been paid in full). ~~This guaranty is a guaranty of payment and performance and not merely a guaranty of collection.~~ The ~~Guarantors~~ Guarantor further ~~agree~~ agrees that, if at any time all or any part of any payment theretofore applied by the Agent or the Banks to any of the Liabilities is or must be rescinded or returned by the Agent or the Banks for any reason whatsoever (including, without limitation, the insolvency, bankruptcy or reorganization of the Debtor), such Liabilities shall, for the purposes of this guaranty, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence, notwithstanding such application by the Agent or the Banks, and this guaranty shall continue to be effective or be reinstated, as the case may be, as to such Liabilities, all as though such application by the Agent or the Banks had not been made. The Agent and the Banks may, from time to time, at their sole discretion and without notice to ~~any~~ the Guarantor, take any or all of the following actions: (a) be granted a security interest in any property to secure any of the Liabilities or the Guaranty Obligations, (b) retain or obtain the primary or secondary obligation of any obligor or obligors, in addition to the ~~Guarantors~~Guarantor, with respect to any of the Liabilities, (c) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Liabilities, or release or compromise any obligation of any nature of any other obligor with respect to any of the Liabilities, (d) release its security interest in, or surrender, release or permit any substitution or exchange for, all or any part of any property securing any of the Liabilities or any obligation hereunder, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such property, and (e) resort to ~~any~~ the Guarantor for payment of any of the Liabilities, whether or not the Agent and the Banks (i) shall have resorted to any property securing any of the Liabilities or (ii) shall have proceeded against any other obligor primarily or secondarily obligated with respect to any of the Liabilities ~~including without limitation any other Guarantor~~ (all of the actions referred to in preceding clauses (i) and (ii) being hereby expressly waived by ~~each~~ the Guarantor). Any amounts received by the Agent and the Banks from whatsoever source on account of the Liabilities may be applied by it toward the payment of such of the Liabilities, and in such order of application, as the Agent may from time to time elect. Until such time as this guaranty shall have been discontinued and the Agent and the Banks shall have received payment of the full amount of all Liabilities and of all obligations of the ~~Guarantors~~ Guarantor hereunder, no payment made by or for the account of the ~~Guarantors~~ Guarantor pursuant to this guaranty shall entitle the ~~Guarantors~~ Guarantor by subrogation or otherwise to any payment by the Debtor or from or out of any property of the Debtor and the ~~Guarantors~~ Guarantor shall not exercise any right or remedy against the Debtor or any property of the Debtor by reason of any performance by the ~~Guarantors~~ Guarantor of this guaranty. The ~~Guarantors~~ Guarantor hereby expressly ~~waive~~waives: (a) notice of the acceptance by the Agent or the Banks of this guaranty, (b) notice of the existence or creation or non-payment of all or any of the Liabilities, (c) presentment, demand, notice of dishonor, protest, and all other notices whatsoever, and (d) all diligence in collection or protection of or realization upon the Liabilities or any part thereof, any obligation hereunder, or any security for, or guaranty of, any of the foregoing. Each Bank may from time to time without notice to the ~~Guarantors~~Guarantor, assign or transfer its Percentage (as defined in the ~~Term Loan~~ Credit Agreement) or any or all of the Liabilities or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Liabilities shall be and remain Liabilities for the purposes of this guaranty, and each and every immediate and successive assignee or transferee of any of the Liabilities or of any interest therein shall, to the extent of the interest of such assignee or transferee in the Liabilities, be entitled to the benefits of this guaranty to the same extent as if such assignee or transferee were such Bank. Unless the Agent shall otherwise consent in writing, the Agent shall have the sole right to enforce this ~~guaranty~~Guaranty, as Agent as provided in the ~~Term Loan~~ Credit Agreement, for the benefit of the Agent and the Banks (including any transferee, as provided in the prior paragraph). ~~Each~~ The Guarantor hereby warrants to the Agent and the Banks that ~~such~~ the Guarantor now has, and will continue to have independent means of obtaining information concerning the affairs, financial condition and business of the Debtor. Neither the Agent nor the Bank shall have any duty or responsibility to provide the ~~Guarantors~~ Guarantor with any credit or other information concerning the affairs, financial condition or business of the Debtor which may come into the Agent’s or the Bank’s possession. No delay on the part of the Agent or any Bank in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by the Agent or any Bank of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy; nor shall any modification or waiver of any of the provisions of this guaranty be binding upon the Agent or any Bank except as expressly set forth in a writing duly signed and delivered on behalf of the Agent and the Required Banks (as defined in the ~~Term Loan~~ Credit Agreement). No action of the Agent or the Banks permitted hereunder shall in any way affect or impair the rights of the Agent or the Banks and the obligations of the ~~Guarantors~~ Guarantor under this guaranty. For the purposes of this guaranty, Liabilities shall include all obligations of the Debtor to the Agent or the Banks specified as Liabilities, notwithstanding any right or power of the Debtor or anyone else to assert any claim or defense as to the invalidity or unenforceability of any such obligation, and no such claim or defense shall affect or impair the obligations of the ~~Guarantors~~ Guarantor hereunder, and shall specifically include, without limitation, any and all interest, fees or commissions included in the Liabilities and accruing or payable after the commencement of any bankruptcy or insolvency proceedings, notwithstanding any provision or rule of law which might restrict the rights of the Bank to collect such obligations from the Debtor. The obligations of the ~~Guarantors~~ Guarantor under this guaranty shall be absolute and unconditional irrespective of any circumstance whatsoever which might constitute a legal or equitable discharge or defense of ~~any~~ the Guarantor. The ~~Guarantors~~ Guarantor hereby acknowledge that there are no conditions to the effectiveness of this guaranty. This guaranty shall be binding upon ~~each~~ the Guarantor, and upon the successors and assigns of ~~each~~ the Guarantor. Wherever possible, each provision of this guaranty shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this guaranty. To the extent that any Guarantor shall make a payment under this guaranty (a “Guarantor Payment”) which, taking into account all other Guarantor Payments then previously or concurrently made by any other Guarantor, exceeds the amount which otherwise would have been paid by or attributable to such Guarantor if each Guarantor had paid the aggregate Liabilities satisfied by such Guarantor Payment in the same proportion as such Guarantor’s “Allocable Amount” (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Guarantors as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment in full in cash of the Guarantor Payment and the Liabilities (other than unliquidated obligations that have not yet arisen), and the Term Loan Agreement has terminated, such Guarantor shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Guarantor for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment. As of any date of determination, the “Allocable Amount” of any Guarantor shall be equal to the excess of the fair saleable value of the property of such Guarantor over the total liabilities of such Guarantor (including the maximum amount reasonably expected to become due in respect of contingent liabilities, calculated, without duplication, assuming each other Guarantor that is also liable for such contingent liability pays its ratable share thereof), giving effect to all payments made by other Guarantors as of such date in a manner to maximize the amount of such contributions. The preceding paragraph is intended only to define the relative rights of the Guarantors, and nothing set forth in such paragraph is intended to or shall impair the obligations of the Guarantors, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this guaranty. The rights of the indemnifying Guarantors against other Guarantors under the preceding paragraph shall be exercisable upon the full and indefeasible payment of the Liabilities in cash and the termination of the Term Loan Agreement. The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Guarantor or Guarantors to which such contribution and indemnification is owing. THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS GUARANTY SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS OF THE UNITED STATES APPLICABLE TO NATIONAL BANKS. THE AGENT AND THE BANKS (BY ACCEPTING THIS GUARANTY) AND THE ~~GUARANTORS~~ GUARANTOR HEREBY EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS GUARANTY OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. AT THE OPTION OF THE AGENT, THIS GUARANTY MAY BE ENFORCED IN ANY FEDERAL COURT SITTING IN MINNEAPOLIS OR ST. PXXX, MINNESOTA; AND THE ~~GUARANTORS CONSENT~~ GUARANTOR CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND ~~WAIVE~~ WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT ~~ANY~~ THE GUARANTOR COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS GUARANTY, THE AGENT, AT ITS OPTION, SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES ABOVE DESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE. SIGNED AND DELIVERED as of ~~February 5~~April 26, ~~2016~~2006. ~~Varistar Corporation BTD Manufacturing, Inc. Northern Pipe Products, Inc. Vinyltech Corporation~~ VARISTAR CORPORATION By: Title: ~~EXHIBIT C~~ Exhibit D Opinion of Counsel April 26, 2005 To: The Banks party to the Credit Agreement described herein [~~Attached~~address to each bank] ~~71 EXHIBIT D Assignment~~ Ladies and ~~Assumption ASSIGNMENT AND ASSUMPTION AGREEMENT This~~ Gentlemen: I have acted as counsel to Otter Tail Corporation, a Minnesota corporation (the “Company”), in connection with the transactions contemplated by that certain Credit Agreement, dated as of April 26, 2006, entered into among the ~~date set forth in Item I (each reference to an “Item” herein shall be deemed to refer to such Item on Schedule I hereto)~~Company, ~~is made by~~ the ~~party named in Item II~~Banks, as defined therein, and U.S. Bank National Association, as Agent (the “~~Assignor~~Credit Agreement”) ), and to ~~the entity named in Item III~~ Varistar Corporation (the “~~Assignee~~Guarantor”) in connection with that certain Guaranty dated as of April 26, 2006, entered into by the Guarantor (the “Guaranty”).. This opinion is being delivered to you pursuant to Section 6.1(e) of the Credit Agreement. Capitalized terms used herein, except as otherwise specifically defined herein, are used with the same meaning as defined in the Credit Agreement. In connection with this opinion, I have examined the following documents:

Appears in 1 contract

Samples: Credit Agreement (Otter Tail Corp)

Interest and Dividend Coverage Ratio. For the four-quarter period ending on the date of the enclosed consolidated financial statements: EBIT: ~~$__________~~ $ to: sum of Interest Expense: ~~$_______~~ $ Dividends on Preferred Stock:: ~~$_______ $___________~~ $ $ Ratio: ___ _to 1.00 (Required: not less than 1.50 to 1.00). ~~EXHIBIT~~ OTTER TAIL CORPORATION By: Title: [chief financial officer] Exhibit C ~~GUARANTY (Joint and Several)~~ Guaranty Guaranty FOR VALUE RECEIVED and in consideration of entry by the Banks (as defined in the ~~Term Loan Agreement referred to below~~Credit Agreement) and ~~JPMORGAN CHASE BANK, N.A.~~U.S. BANK NATIONAL ASSOCIATION, as agent for the Banks (in such capacity, together with it successors and assigns, called the “Agent”) into that certain ~~Term Loan~~ Credit Agreement, dated as of ~~February 5~~April 27, ~~2016~~ 2005 (as thereafter amended, modified, extended, renewed, restated or replaced from time to time called the “~~Term Loan~~ Credit Agreement”) among the Banks, the Agent and OTTER TAIL CORPORATION, a Minnesota corporation (hereinafter called the “Debtor”), ~~the undersigned corporations~~ VARISTAR CORPORATION, a Minnesota corporation (the “~~Guarantors~~Guarantor”) hereby ~~JOINTLY AND SEVERALLY~~ unconditionally ~~guarantee~~ guarantees the full and prompt payment when due, whether by acceleration or otherwise, and at all times thereafter, of all obligations of the Debtor to the Banks or the Agent under the ~~Term Loan~~ Credit Agreement, each Note issued thereunder, and each other Loan Document (as defined therein), including without limitation all future advances, and all obligations to reimburse the Agent for drawings under all Letters of Credit, and all of such obligations that arise after the filing of a petition by or against the Debtor under the Bankruptcy Code, even if the obligations do not accrue because of the automatic stay under Bankruptcy Code Section 362 or otherwise (all such obligations being hereinafter collectively called the “Liabilities”), and the ~~Guarantors~~ Guarantor further ~~jointly and severally agree~~ agrees to pay all expenses (including attorneys’ fees and legal expenses) paid or incurred by the Banks or Agent in endeavoring to collect the Liabilities, or any part thereof, and in enforcing this guaranty. The ~~Guarantors agree~~ Guarantor agrees that, in the event of the dissolution or insolvency of the Debtor or ~~any~~ the Guarantor, or the inability of the Debtor or ~~any~~ the Guarantor to pay debts as they mature, or an assignment by the Debtor or ~~any~~ the Guarantor for the benefit of creditors, or the institution of any proceeding by or against the Debtor or the Guarantor alleging that the Debtor or ~~any~~ the Guarantor is insolvent or unable to pay debts as they mature, and if such event shall occur at a time when any of the Liabilities may not then be due and payable, the ~~Guarantors~~ Guarantor will pay to the Agent forthwith the full amount which would be payable hereunder by the ~~Guarantors~~ Guarantor if all Liabilities were then due and payable. In addition to, and without limitation of, any rights of the Agent and the Banks under applicable law, if any Event of Default occurs and is continuing under the Term Loan Agreement, upon written direction by the Agent to such effect any and all deposits (including all account balances, whether provisional or final and whether or not collected or available) and any other Indebtedness (as defined in the Term Loan Agreement) at any time held or owing by the Agent or any Bank to or As additional security for the ~~credit or account~~ payment of ~~any Guarantor may be offset and applied toward the payment~~ all of the Liabilities and all obligations of the ~~Guarantors hereunder~~Guarantor hereunder (collectively, the “Guaranty Obligations”), the Guarantor grants to the Agent for the benefit of itself and the Banks a security interest in, a lien on, and an express contractual right to set off against, each deposit account and all deposit account balances, cash and any other property of the Guarantor now or hereafter maintained with, or in the possession of, the Agent. Upon the occurrence of any default hereunder (as described in the immediately preceding paragraph), the Agent may: (a) refuse to allow withdrawals from any such deposit account; (b) apply the amount of such deposit account balances and the other assets of the Guarantor described above to the Guaranty Obligations; and (c) offset any other obligation of the Agent against the Guaranty Obligations; all whether or not the ~~Liabilities~~ Guaranty Obligations are then due or have been accelerated and all ~~obligations~~ without any advance or contemporaneous notice or demand of any kind to the ~~Guarantors hereunder~~Guarantor, ~~or any part thereof, shall then be due~~such notice and demand being expressly waived. This guaranty shall in all respects be a continuing, absolute and unconditional guaranty, and shall remain in full force and effect (notwithstanding, without limitation, the dissolution of ~~any~~ the Guarantor or that at any time or from time to time all Liabilities may have been paid in full). ~~This guaranty is a guaranty of payment and performance and not merely a guaranty of collection.~~ The ~~Guarantors~~ Guarantor further ~~agree~~ agrees that, if at any time all or any part of any payment theretofore applied by the Agent or the Banks to any of the Liabilities is or must be rescinded or returned by the Agent or the Banks for any reason whatsoever (including, without limitation, the insolvency, bankruptcy or reorganization of the Debtor), such Liabilities shall, for the purposes of this guaranty, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence, notwithstanding such application by the Agent or the Banks, and this guaranty shall continue to be effective or be reinstated, as the case may be, as to such Liabilities, all as though such application by the Agent or the Banks had not been made. The Agent and the Banks may, from time to time, at their sole discretion and without notice to ~~any~~ the Guarantor, take any or all of the following actions: (a) be granted a security interest in any property to secure any of the Liabilities or the Guaranty Obligations, (b) retain or obtain the primary or secondary obligation of any obligor or obligors, in addition to the ~~Guarantors~~Guarantor, with respect to any of the Liabilities, (c) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Liabilities, or release or compromise any obligation of any nature of any other obligor with respect to any of the Liabilities, (d) release its security interest in, or surrender, release or permit any substitution or exchange for, all or any part of any property securing any of the Liabilities or any obligation hereunder, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such property, and (e) resort to ~~any~~ the Guarantor for payment of any of the Liabilities, whether or not the Agent and the Banks (i) shall have resorted to any property securing any of the Liabilities or (ii) shall have proceeded against any other obligor primarily or secondarily obligated with respect to any of the Liabilities ~~including without limitation any other Guarantor~~ (all of the actions referred to in preceding clauses (i) and (ii) being hereby expressly waived by ~~each~~ the Guarantor). Any amounts received by the Agent and the Banks from whatsoever source on account of the Liabilities may be applied by it toward the payment of such of the Liabilities, and in such order of application, as the Agent may from time to time elect. Until such time as this guaranty shall have been discontinued and the Agent and the Banks shall have received payment of the full amount of all Liabilities and of all obligations of the ~~Guarantors~~ Guarantor hereunder, no payment made by or for the account of the ~~Guarantors~~ Guarantor pursuant to this guaranty shall entitle the ~~Guarantors~~ Guarantor by subrogation or otherwise to any payment by the Debtor or from or out of any property of the Debtor and the ~~Guarantors~~ Guarantor shall not exercise any right or remedy against the Debtor or any property of the Debtor by reason of any performance by the ~~Guarantors~~ Guarantor of this guaranty. The ~~Guarantors~~ Guarantor hereby expressly ~~waive~~waives: (a) notice of the acceptance by the Agent or the Banks of this guaranty, (b) notice of the existence or creation or non-payment of all or any of the Liabilities, (c) presentment, demand, notice of dishonor, protest, and all other notices whatsoever, and (d) all diligence in collection or protection of or realization upon the Liabilities or any part thereof, any obligation hereunder, or any security for, or guaranty of, any of the foregoing. Each Bank may from time to time without notice to the ~~Guarantors~~Guarantor, assign or transfer its Percentage (as defined in the ~~Term Loan~~ Credit Agreement) or any or all of the Liabilities or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Liabilities shall be and remain Liabilities for the purposes of this guaranty, and each and every immediate and successive assignee or transferee of any of the Liabilities or of any interest therein shall, to the extent of the interest of such assignee or transferee in the Liabilities, be entitled to the benefits of this guaranty to the same extent as if such assignee or transferee were such Bank. Unless the Agent shall otherwise consent in writing, the Agent shall have the sole right to enforce this ~~guaranty~~Guaranty, as Agent as provided in the ~~Term Loan~~ Credit Agreement, for the benefit of the Agent and the Banks (including any transferee, as provided in the prior paragraph). ~~Each~~ The Guarantor hereby warrants to the Agent and the Banks that ~~such~~ the Guarantor now has, and will continue to have independent means of obtaining information concerning the affairs, financial condition and business of the Debtor. Neither the Agent nor the Bank shall have any duty or responsibility to provide the ~~Guarantors~~ Guarantor with any credit or other information concerning the affairs, financial condition or business of the Debtor which may come into the Agent’s or the Bank’s possession. No delay on the part of the Agent or any Bank in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by the Agent or any Bank of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy; nor shall any modification or waiver of any of the provisions of this guaranty be binding upon the Agent or any Bank except as expressly set forth in a writing duly signed and delivered on behalf of the Agent and the Required Banks (as defined in the ~~Term Loan~~ Credit Agreement). No action of the Agent or the Banks permitted hereunder shall in any way affect or impair the rights of the Agent or the Banks and the obligations of the ~~Guarantors~~ Guarantor under this guaranty. For the purposes of this guaranty, Liabilities shall include all obligations of the Debtor to the Agent or the Banks specified as Liabilities, notwithstanding any right or power of the Debtor or anyone else to assert any claim or defense as to the invalidity or unenforceability of any such obligation, and no such claim or defense shall affect or impair the obligations of the ~~Guarantors~~ Guarantor hereunder, and shall specifically include, without limitation, any and all interest, fees or commissions included in the Liabilities and accruing or payable after the commencement of any bankruptcy or insolvency proceedings, notwithstanding any provision or rule of law which might restrict the rights of the Bank to collect such obligations from the Debtor. The obligations of the ~~Guarantors~~ Guarantor under this guaranty shall be absolute and unconditional irrespective of any circumstance whatsoever which might constitute a legal or equitable discharge or defense of ~~any~~ the Guarantor. The ~~Guarantors~~ Guarantor hereby acknowledge that there are no conditions to the effectiveness of this guaranty. This guaranty shall be binding upon ~~each~~ the Guarantor, and upon the successors and assigns of ~~each~~ the Guarantor. Wherever possible, each provision of this guaranty shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this guaranty. To the extent that any Guarantor shall make a payment under this guaranty (a “Guarantor Payment”) which, taking into account all other Guarantor Payments then previously or concurrently made by any other Guarantor, exceeds the amount which otherwise would have been paid by or attributable to such Guarantor if each Guarantor had paid the aggregate Liabilities satisfied by such Guarantor Payment in the same proportion as such Guarantor’s “Allocable Amount” (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Guarantors as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment in full in cash of the Guarantor Payment and the Liabilities (other than unliquidated obligations that have not yet arisen), and the Term Loan Agreement has terminated, such Guarantor shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Guarantor for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment. As of any date of determination, the “Allocable Amount” of any Guarantor shall be equal to the excess of the fair saleable value of the property of such Guarantor over the total liabilities of such Guarantor (including the maximum amount reasonably expected to become due in respect of contingent liabilities, calculated, without duplication, assuming each other Guarantor that is also liable for such contingent liability pays its ratable share thereof), giving effect to all payments made by other Guarantors as of such date in a manner to maximize the amount of such contributions. The preceding paragraph is intended only to define the relative rights of the Guarantors, and nothing set forth in such paragraph is intended to or shall impair the obligations of the Guarantors, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this guaranty. The rights of the indemnifying Guarantors against other Guarantors under the preceding paragraph shall be exercisable upon the full and indefeasible payment of the Liabilities in cash and the termination of the Term Loan Agreement. The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Guarantor or Guarantors to which such contribution and indemnification is owing. THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS GUARANTY SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS OF THE UNITED STATES APPLICABLE TO NATIONAL BANKS. THE AGENT AND THE BANKS (BY ACCEPTING THIS GUARANTY) AND THE ~~GUARANTORS~~ GUARANTOR HEREBY EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS GUARANTY OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. AT THE OPTION OF THE AGENT, THIS GUARANTY MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE COURT SITTING IN MINNEAPOLIS OR ST. PXXX, MINNESOTA; AND THE ~~GUARANTORS CONSENT~~ GUARANTOR CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND ~~WAIVE~~ WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT ~~ANY~~ THE GUARANTOR COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS GUARANTY, THE AGENT, AT ITS OPTION, SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES ABOVE DESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE. SIGNED AND DELIVERED as of ~~February 5~~April 27, ~~2016~~2005. ~~Varistar Corporation BTD Manufacturing, Inc. Northern Pipe Products, Inc. Vinyltech Corporation~~ VARISTAR CORPORATION By: /s/ Kxxxx Xxxx Title: ~~EXHIBIT C~~ CFO Exhibit D Opinion of Counsel April __, 2005 To: The Banks party to the Credit Agreement described herein [~~Attached~~address to each bank] ~~71 EXHIBIT D Assignment~~ Ladies and ~~Assumption ASSIGNMENT AND ASSUMPTION AGREEMENT This~~ Gentlemen: I have acted as counsel to Otter Tail Corporation, a Minnesota corporation (the “Company”), in connection with the transactions contemplated by that certain Credit Agreement, dated as of April 27, 2005, entered into among the ~~date set forth in Item I (each reference to an “Item” herein shall be deemed to refer to such Item on Schedule I hereto)~~Company, ~~is made by~~ the ~~party named in Item II~~Banks, as defined therein, and U.S. Bank National Association, as Agent (the “~~Assignor~~Credit Agreement”) ), and to ~~the entity named in Item III~~ Varistar Corporation (the “~~Assignee~~Guarantor”) in connection with that certain Guaranty dated as of April 27, 2005, entered into by the Guarantor (the “Guaranty”).. This opinion is being delivered to you pursuant to Section 6.1(e) of the Credit Agreement. Capitalized terms used herein, except as otherwise specifically defined herein, are used with the same meaning as defined in the Credit Agreement. In connection with this opinion, I have examined the following documents:

Appears in 1 contract

Samples: Credit Agreement (Otter Tail Corp)

Interest and Dividend Coverage Ratio. For the four-quarter period ending on the date of the enclosed consolidated financial statements: EBIT: ~~$__________~~ $ to: sum of Interest Expense: ~~$_______~~ $ Dividends on Preferred Stock: ~~$_______ $___________~~ $ $ Ratio: ~~___~~ to 1.00 (Required: not less than 1.50 to 1.00). ~~EXHIBIT~~ OTTER TAIL CORPORATION By: Title: [chief financial officer] Exhibit C ~~GUARANTY (Joint and Several)~~ Guaranty FOR VALUE RECEIVED and in consideration of entry by the Banks (as defined in the ~~Term Loan Agreement referred to below~~Credit Agreement) and ~~JPMORGAN CHASE BANK~~UBS AG, ~~N.A.~~Stamford Branch, as agent for the Banks (in such capacity, together with it successors and assigns, called the “Agent”) into that certain ~~Term Loan~~ Credit Agreement, dated as of ~~February 5~~August 13, ~~2016~~ 2004 (as thereafter amended, modified, extended, renewed, restated or replaced from time to time called the “~~Term Loan~~ Credit Agreement”) among the Banks, the Agent and OTTER TAIL CORPORATION, a Minnesota corporation (hereinafter called the “Debtor”), ~~the undersigned corporations~~ VARISTAR CORPORATION, a Minnesota corporation (the “~~Guarantors~~Guarantor”) hereby ~~JOINTLY AND SEVERALLY~~ unconditionally ~~guarantee~~ guarantees the full and prompt payment when due, whether by acceleration or otherwise, and at all times thereafter, of all obligations of the Debtor to the Banks or the Agent under the ~~Term Loan~~ Credit Agreement, each Note issued thereunder, and each other Loan Document (as defined therein), including without limitation all future advances, and ~~all obligations to reimburse the Agent for~~ all of such obligations that arise after the filing of a petition by or against the Debtor under the Bankruptcy Code, even if the obligations do not accrue because of the automatic stay under Bankruptcy Code Section 362 or otherwise (all such obligations being hereinafter collectively called the “Liabilities”), and the ~~Guarantors~~ Guarantor further ~~jointly and severally agree~~ agrees to pay all expenses (including attorneys’ fees and legal expenses) paid or incurred by the Banks or Agent in endeavoring to collect the Liabilities, or any part thereof, and in enforcing this guaranty. The ~~Guarantors agree~~ Guarantor agrees that, in the event of the dissolution or insolvency of the Debtor or ~~any~~ the Guarantor, or the inability of the Debtor or ~~any~~ the Guarantor to pay debts as they mature, or an assignment by the Debtor or ~~any~~ the Guarantor for the benefit of creditors, or the institution of any proceeding by or against the Debtor or the Guarantor alleging that the Debtor or ~~any~~ the Guarantor is insolvent or unable to pay debts as they mature, and if such event shall occur at a time when any of the Liabilities may not then be due and payable, the ~~Guarantors~~ Guarantor will pay to the Agent forthwith the full amount which would be payable hereunder by the ~~Guarantors~~ Guarantor if all Liabilities were then due and payable. In addition to, and without limitation of, any rights of the Agent and the Banks under applicable law, if any Event of Default occurs and is continuing under the Term Loan Agreement, upon written direction by the Agent to such effect any and all deposits (including all account balances, whether provisional or final and whether or not collected or available) and any other Indebtedness (as defined in the Term Loan Agreement) at any time held or owing by the Agent or any Bank to or As additional security for the ~~credit or account~~ payment of ~~any Guarantor may be offset and applied toward the payment~~ all of the Liabilities and all obligations of the ~~Guarantors hereunder~~Guarantor hereunder (collectively, the “Guaranty Obligations”), the Guarantor grants to the Agent for the benefit of itself and the Banks a security interest in, a lien on, and an express contractual right to set off against, each deposit account and all deposit account balances, cash and any other property of the Guarantor now or hereafter maintained with, or in the possession of, the Agent. Upon the occurrence of any default hereunder (as described in the immediately preceding paragraph), the Agent may: (a) refuse to allow withdrawals from any such deposit account; (b) apply the amount of such deposit account balances and the other assets of the Guarantor described above to the Guaranty Obligations; and (c) offset any other obligation of the Agent against the Guaranty Obligations; all whether or not the ~~Liabilities~~ Guaranty Obligations are then due or have been accelerated and all ~~obligations~~ without any advance or contemporaneous notice or demand of any kind to the ~~Guarantors hereunder~~Guarantor, ~~or any part thereof, shall then be due~~such notice and demand being expressly waived. This guaranty shall in all respects be a continuing, absolute and unconditional guaranty, and shall remain in full force and effect (notwithstanding, without limitation, the ~~dissolution~~ disso- lution of ~~any~~ the Guarantor or that at any time or from time to time all Liabilities may have been paid in full). ~~This guaranty is a guaranty of payment and performance and not merely a guaranty of collection.~~ The ~~Guarantors~~ Guarantor further ~~agree~~ agrees that, if at any time all or any part of any payment theretofore applied by the Agent or the Banks to any of the Liabilities is or must be rescinded or returned by the Agent or the Banks for any reason whatsoever (including, without limitation, the insolvency, bankruptcy or reorganization of the Debtor), such Liabilities shall, for the purposes of this guaranty, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence, notwithstanding such application by the Agent or the Banks, and this guaranty shall continue to be effective or be reinstated, as the case may be, as to such Liabilities, all as though such application by the Agent or the Banks had not been made. The Agent and the Banks may, from time to time, at their sole discretion and without notice to ~~any~~ the Guarantor, take any or all of the following actions: (a) be granted a security interest in any property to secure any of the Liabilities or the Guaranty Obligations, (b) retain or obtain the primary or secondary obligation of any obligor or obligors, in addition to the ~~Guarantors~~Guarantor, with respect to any of the Liabilities, (c) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Liabilities, or release or compromise any obligation of any nature of any other obligor with respect to any of the Liabilities, (d) release its security interest in, or surrender, release or permit any substitution or exchange for, all or any part of any property securing any of the Liabilities or any obligation hereunder, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such property, and (e) resort to ~~any~~ the Guarantor for payment of any of the Liabilities, whether or not the Agent and the Banks (i) shall have resorted to any property securing any of the Liabilities or (ii) shall have proceeded against any other obligor primarily or secondarily obligated with respect to any of the Liabilities ~~including without limitation any other Guarantor~~ (all of the actions referred to in preceding clauses (i) and (ii) being hereby expressly waived by ~~each~~ the Guarantor). Any amounts received by the Agent and the Banks from whatsoever source on account of the Liabilities may be applied by it toward the payment of such of the Liabilities, and in such order of application, as the Agent may from time to time elect. Until such time as this guaranty shall have been discontinued and the Agent and the Banks shall have received payment of the full amount of all Liabilities and of all obligations of the ~~Guarantors~~ Guarantor hereunder, no payment made by or for the account of the ~~Guarantors~~ Guarantor pursuant to this guaranty shall entitle the ~~Guarantors~~ Guarantor by subrogation or otherwise to any payment by the Debtor or from or out of any property of the Debtor and the ~~Guarantors~~ Guarantor shall not exercise any right or remedy against the Debtor or any property of the Debtor by reason of any performance by the ~~Guarantors~~ Guarantor of this guaranty. The ~~Guarantors~~ Guarantor hereby expressly ~~waive~~waives: (a) notice of the acceptance by the Agent or the Banks of this guaranty, (b) notice of the existence or creation or non-payment of all or any of the Liabilities, (c) presentment, demand, notice of dishonor, protest, and all other notices whatsoever, and (d) all diligence in collection or protection of or realization upon the Liabilities or any part thereof, any obligation hereunder, or any security for, or guaranty of, any of the foregoing. Each Bank may from time to time without notice to the ~~Guarantors~~Guarantor, assign or transfer its Percentage (as defined in the ~~Term Loan~~ Credit Agreement) or any or all of the Liabilities or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Liabilities shall be and remain Liabilities for the purposes of this guaranty, and each and every immediate and successive assignee or transferee of any of the Liabilities or of any interest therein shall, to the extent of the interest of such assignee or transferee in the Liabilities, be entitled to the benefits of this guaranty to the same extent as if such assignee or transferee were such Bank. Unless the Agent shall otherwise consent in writing, the Agent shall have the sole right to enforce this ~~guaranty~~Guaranty, as Agent as provided in the ~~Term Loan~~ Credit Agreement, for the benefit of the Agent and the Banks (including any transferee, as provided in the prior paragraph). ~~Each~~ The Guarantor hereby warrants to the Agent and the Banks that ~~such~~ the Guarantor now has, and will continue to have independent means of obtaining information concerning the affairs, financial condition and business of the Debtor. Neither the Agent nor the Bank shall have any duty or responsibility to provide the ~~Guarantors~~ Guarantor with any credit or other information concerning the affairs, financial condition or business of the Debtor which may come into the Agent’s or the Bank’s possession. No delay on the part of the Agent or any Bank in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by the Agent or any Bank of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy; nor shall any modification or waiver of any of the provisions of this guaranty be binding upon the Agent or any Bank except as expressly set forth in a writing duly signed and delivered on behalf of the Agent and the Required Banks (as defined in the ~~Term Loan~~ Credit Agreement). No action of the Agent or the Banks permitted hereunder shall in any way affect or impair the rights of the Agent or the Banks and the obligations of the ~~Guarantors~~ Guarantor under this guaranty. For the purposes of this guaranty, Liabilities shall include all obligations of the Debtor to the Agent or the Banks specified as Liabilities, notwithstanding any right or power of the Debtor or anyone else to assert any claim or defense as to the invalidity or unenforceability of any such obligation, and no such claim or defense shall affect or impair the obligations of the ~~Guarantors~~ Guarantor hereunder, and shall specifically include, without limitation, any and all interest, fees or commissions included in the Liabilities and accruing or payable after the commencement of any bankruptcy or insolvency proceedings, notwithstanding any provision or rule of law which might restrict the rights of the Bank to collect such obligations from the Debtor. The obligations of the ~~Guarantors~~ Guarantor under this guaranty shall be absolute and unconditional irrespective of any circumstance whatsoever which might constitute a legal or equitable discharge or defense of ~~any~~ the Guarantor. The ~~Guarantors~~ Guarantor hereby acknowledge that there are no conditions to the effectiveness of this guaranty. This guaranty shall be binding upon ~~each~~ the Guarantor, and upon the successors and assigns of ~~each~~ the Guarantor. Wherever possible, each provision of this guaranty shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this guaranty. To the extent that any Guarantor shall make a payment under this guaranty (a “Guarantor Payment”) which, taking into account all other Guarantor Payments then previously or concurrently made by any other Guarantor, exceeds the amount which otherwise would have been paid by or attributable to such Guarantor if each Guarantor had paid the aggregate Liabilities satisfied by such Guarantor Payment in the same proportion as such Guarantor’s “Allocable Amount” (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Guarantors as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment in full in cash of the Guarantor Payment and the Liabilities (other than unliquidated obligations that have not yet arisen), and the Term Loan Agreement has terminated, such Guarantor shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Guarantor for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment. As of any date of determination, the “Allocable Amount” of any Guarantor shall be equal to the excess of the fair saleable value of the property of such Guarantor over the total liabilities of such Guarantor (including the maximum amount reasonably expected to become due in respect of contingent liabilities, calculated, without duplication, assuming each other Guarantor that is also liable for such contingent liability pays its ratable share thereof), giving effect to all payments made by other Guarantors as of such date in a manner to maximize the amount of such contributions. The preceding paragraph is intended only to define the relative rights of the Guarantors, and nothing set forth in such paragraph is intended to or shall impair the obligations of the Guarantors, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this guaranty. The rights of the indemnifying Guarantors against other Guarantors under the preceding paragraph shall be exercisable upon the full and indefeasible payment of the Liabilities in cash and the termination of the Term Loan Agreement. The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Guarantor or Guarantors to which such contribution and indemnification is owing. THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS GUARANTY SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ~~MINNESOTA~~NEW YORK, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS OF THE UNITED STATES APPLICABLE TO NATIONAL BANKS. THE AGENT AND THE BANKS (BY ACCEPTING THIS GUARANTY) AND THE ~~GUARANTORS~~ GUARANTOR HEREBY EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS GUARANTY OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. AT THE OPTION OF THE AGENT, THIS GUARANTY MAY BE ENFORCED IN ANY FEDERAL COURT OR NEW YORK STATE COURT SITTING IN ~~MINNESOTA~~NEW YORK COUNTY; AND THE ~~GUARANTORS CONSENT~~ GUARANTOR CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND ~~WAIVE~~ WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT ~~ANY~~ THE GUARANTOR COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS GUARANTY, THE AGENT, AT ITS OPTION, SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES ABOVE DESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE. SIGNED AND DELIVERED as of ~~February 5~~August 13, ~~2016~~2004. ~~Varistar Corporation BTD Manufacturing, Inc. Northern Pipe Products, Inc. Vinyltech Corporation~~ VARISTAR CORPORATION By: Title: EXHIBIT C E Opinion of Counsel August , 2004 To: The Banks party to the Credit Agreement described herein [~~Attached~~address to each bank] ~~71 EXHIBIT D Assignment~~ Ladies and ~~Assumption ASSIGNMENT AND ASSUMPTION AGREEMENT This~~ Gentlemen: I have acted as counsel to Otter Tail Corporation, a Minnesota corporation (the “Company”), in connection with the transactions contemplated by that certain Credit Agreement, dated as of August 13, 2004, entered into among the ~~date set forth in Item I (each reference to an “Item” herein shall be deemed to refer to such Item on Schedule I hereto)~~Company, ~~is made by~~ the ~~party named in Item II~~Banks, as defined therein, and UBS AG, Stamford Branch, as Agent (the “~~Assignor~~Credit Agreement”) ), and to ~~the entity named in Item III~~ Varistar Corporation (the “~~Assignee~~Guarantor”) in connection with that certain Guaranty dated as of August 13, 2004, entered into by the Guarantor (the “Guaranty”).. This opinion is being delivered to you pursuant to Section 6.1(f) of the Credit Agreement. Capitalized terms used herein, except as otherwise specifically defined herein, are used with the same meaning as defined in the Credit Agreement. In connection with this opinion, I have examined the following documents:

Appears in 1 contract

Samples: Credit Agreement (Otter Tail Corp)

Appears in 1 contract

Samples: Term Loan Agreement (Otter Tail Corp)

Common use of Interest and Dividend Coverage Ratio Clause in Contracts