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Exhibit 10.27(c)
GUARANTY
This Guaranty is made as of the 31st day of December, 1998 by Underwriters
Reinsurance Company, a New Hampshire insurance company (the "Guarantor"), in
favor of the Agent and the Lenders (as hereinafter defined).
RECITALS:
A. Underwriters Re Group, Inc. (formerly, URC Holdings Corp.; the
"Borrower"), the financial institutions named therein (the "Lenders") and The
First National Bank of Chicago, as Agent (the "Agent"), are parties to that
certain Credit Agreement dated as of October 23, 1996, as amended as of the date
hereof (as from time to time further modified, supplemented or amended, the
"Credit Agreement"). Each term used but not otherwise defined herein shall have
the meaning ascribed to such term by the Credit Agreement.
B. The Guarantor is a direct wholly-owned subsidiary of the Borrower and
will receive substantial and direct benefits from the extensions of credit
contemplated by the Credit Agreement and is entering into this Guaranty to
induce the Agent and the Lenders to enter into an amendment to the Credit
Agreement and to continue to extend credit to the Borrower thereunder.
C. The execution and delivery of this Guaranty is a condition precedent to
the obligation of the Lenders to continue to extend credit to the Borrower
pursuant to the Credit Agreement.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration and as an inducement to the Lenders to enter into the
Credit Agreement and to continue to extend credit to the Borrower, the Guarantor
hereby agrees as follows:
1. The Guarantor hereby absolutely, irrevocably and unconditionally
guarantees prompt, full and complete payment when due, whether at stated
maturity, upon acceleration or otherwise, and at all times thereafter, of (a)
the principal of and interest on the Loans made by the Lenders to, and any Notes
held by the Lenders of, the Borrower and (b) all other amounts from time to time
owing to the Lenders or the Agent by the Borrower under the Credit Agreement,
the Notes and the other Loan Documents, including without limitation all
"Obligations", as defined in the Credit Agreement (collectively, the "Guaranteed
Obligations"). This is a guaranty of payment, not a guaranty of collection.
2. The Guarantor waives notice of the acceptance of this Guaranty and
of the extension or incurrence of the Guaranteed Obligations or any part
thereof. The Guarantor further waives all setoffs and counterclaims and
presentment, protest, notice, filing of claims with a court in the event of
receivership, bankruptcy or reorganization of the Borrower, demand or action on
delinquency in respect of the Guaranteed Obligations or any part thereof,
including any right to require the Agent or the Lenders to xxx the Borrower, any
other guarantor
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or any other person obligated with respect to the Guaranteed Obligations or any
part thereof, or otherwise to enforce payment thereof against any collateral
securing the Guaranteed Obligations or any part thereof.
3. The Guarantor hereby agrees that, to the fullest extent permitted by
law, its obligations hereunder shall be continuing, absolute and unconditional
under any and all circumstances and not subject to any reduction, limitation,
impairment, termination, defense (other than indefeasible payment in full),
setoff, counterclaim or recoupment whatsoever (all of which are hereby expressly
waived by it to the fullest extent permitted by law), whether by reason of any
claim of any character whatsoever, including, without limitation, any claim of
waiver, release, surrender, alteration or compromise. The validity and
enforceability of this Guaranty shall not be impaired or affected by any of the
following: (a) any extension, modification or renewal of, or indulgence with
respect to, or substitution for, the Guaranteed Obligations or any part thereof
or any agreement relating thereto at any time; (b) any failure or omission to
perfect or maintain any lien on, or preserve rights to, any security or
collateral or to enforce any right, power or remedy with respect to the
Guaranteed Obligations or any part thereof or any agreement relating thereto, or
any collateral securing the Guaranteed Obligations or any part thereof; (c) any
waiver of any right, power or remedy or of any default with respect to the
Guaranteed Obligations or any part thereof or any agreement relating thereto or
with respect to any collateral securing the Guaranteed Obligations or any part
thereof; (d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any collateral
securing the Guaranteed Obligations or any part thereof, any other guaranties
with respect to the Guaranteed Obligations or any part thereof, or any other
obligations of any person or entity with respect to the Guaranteed Obligations
or any part thereof; (e) the enforceability or validity of the Guaranteed
Obligations or any part thereof or the genuineness, enforceability or validity
of any agreement relating thereto or with respect to any collateral securing the
Guaranteed Obligations or any part thereof; (f) the application of payments
received from any source to the payment of indebtedness other than the
Guaranteed Obligations, any part thereof or amounts which are not covered by
this Guaranty even though the Lenders might lawfully have elected to apply such
payments to any part or all of the Guaranteed Obligations or to amounts which
are not covered by this Guaranty; (g) any change of ownership of the Borrower or
the insolvency, bankruptcy or any other change in the legal status of the
Borrower; (h) any change in, or the imposition of, any law, decree, regulation
or other governmental act which does or might impair, delay or in any way affect
the validity, enforceability or the payment when due of the Guaranteed
Obligations; (i) the failure of the Borrower to maintain in full force, validity
or effect or to obtain or renew when required all governmental and other
approvals, licenses or consents required in connection with the Guaranteed
Obligations or this Guaranty, or to take any other action required in connection
with the performance of all obligations pursuant to the Guaranteed Obligations
or this Guaranty; (j) the existence of any claim, setoff or other rights which
the Guarantor may have at any time against the Borrower or any other guarantor
in connection herewith or with any unrelated transaction; (k) the Lenders'
election, in any case or proceeding instituted under chapter 11 of the United
States Bankruptcy Code, of the application of section 1111(b)(2) of the United
States Bankruptcy Code; (l) any borrowing, use of cash collateral, or grant of a
security interest by the Borrower, as debtor in possession, under section 363 or
364 of the United States Bankruptcy Code; (m) the disallowance of all or any
portion of any of the Lenders' claims for repayment of the Guaranteed
Obligations under section 502 or 506 of the United States Bankruptcy Code; or
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(n) any other fact or circumstance which might otherwise constitute grounds at
law or equity for the discharge or release of the Guarantor from its obligations
hereunder, all whether or not the Guarantor shall have had notice or knowledge
of any act or omission referred to in the foregoing clauses (a) through (n) of
this paragraph. It is agreed that the Guarantor's liability hereunder is
independent of any other guaranties or other obligations at any time in effect
with respect to the Guaranteed Obligations or any part thereof and that the
Guarantor's liability hereunder may be enforced regardless of the existence,
validity, enforcement or non-enforcement of any such other guaranties or other
obligations or any provision of any applicable law or regulation purporting to
prohibit payment by the Borrower of the Guaranteed Obligations in the manner
agreed upon among the Agent, the Lenders and the Borrower.
4. Credit may be granted or continued from time to time by the Lenders
to the Borrower without notice to or authorization from the Guarantor regardless
of the Borrower's financial or other condition at the time of any such grant or
continuation. Neither the Agent nor any Lender shall have an obligation to
disclose or discuss with the Guarantor its assessment of the financial condition
of the Borrower.
5. Until the irrevocable payment in full of the Obligations and
termination of all commitments which could give rise to any Obligation, the
Guarantor shall have no right of subrogation with respect to the Guaranteed
Obligations and hereby waives any right to enforce any remedy which the Agent or
the Lenders now have or may hereafter have against the Borrower, any endorser or
any other guarantor of all or any part of the Guaranteed Obligations, and the
Guarantor hereby waives any benefit of, and any right to participate in, any
security or collateral given to the Agent or the Lenders to secure payment of
the Guaranteed Obligations or any part thereof or any other liability of the
Borrower to the Agent or the Lenders.
6. The Guarantor authorizes the Lenders to take any action or exercise
any remedy with respect to any collateral from time to time securing the
Guaranteed Obligations, which the Lenders in their sole discretion shall
determine, without notice to the Guarantor. Notwithstanding any reference herein
to any collateral securing any of the Guaranteed Obligations, it is acknowledged
that, on the date hereof, neither the Guarantor nor any of its Subsidiaries has
granted, or has any obligation to grant, any security interest in or other lien
on any of its property as security for the Guaranteed Obligations.
7. In the event the Lenders in their sole discretion elect to give
notice of any action with respect to any collateral securing the Guaranteed
Obligations or any part thereof, ten (10) days' written notice mailed to the
Guarantor by ordinary mail at the address shown hereon shall be deemed
reasonable notice of any matters contained in such notice. The Guarantor
consents and agrees that neither the Agent nor the Lenders shall be under any
obligation to xxxxxxxx any assets in favor of the Guarantor or against or in
payment of any or all of the Guaranteed Obligations.
8. In the event that acceleration of the time for payment of any of the
Guaranteed Obligations is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, or otherwise, all such amounts shall nonetheless
be payable by the Guarantor forthwith upon demand by the Agent or the Lenders.
The Guarantor further agrees that, to the extent that the Borrower makes a
payment or payments to any of the Lenders on the Guaranteed Obligations, or the
Agent or the Lenders receive any proceeds of collateral securing the
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Guaranteed Obligations, which payment or receipt of proceeds or any part thereof
is subsequently invalidated, declared to be fraudulent or preferential, set
aside or required to be returned or repaid to the Borrower, its estate, trustee,
receiver, debtor in possession or any other party, including, without
limitation, the Guarantor, under any insolvency or bankruptcy law, state or
federal law, common law or equitable cause, then to the extent of such payment,
return or repayment, the obligation or part thereof which has been paid, reduced
or satisfied by such amount shall be reinstated and continued in full force and
effect as of the date when such initial payment, reduction or satisfaction
occurred.
9. No delay on the part of the Agent or the Lenders in the exercise of
any right, power or remedy shall operate as a waiver thereof, and no single or
partial exercise by the Agent or the Lenders of any right, power or remedy shall
preclude any further exercise thereof; nor shall any amendment, supplement,
modification or waiver of any of the terms or provisions of this Guaranty be
binding upon the Agent or the Lenders, except as expressly set forth in a
writing duly signed and delivered on the Lenders' behalf by the Agent. The
failure by the Agent or the Lenders at any time or times hereafter to require
strict performance by the Borrower or the Guarantor of any of the provisions,
warranties, terms and conditions contained in any promissory note, security
agreement, agreement, guaranty, instrument or document now or at any time or
times hereafter executed pursuant to the terms of, or in connection with, the
Credit Agreement by the Borrower or the Guarantor and delivered to the Agent or
the Lenders shall not waive, affect or diminish any right of the Agent or the
Lenders at any time or times hereafter to demand strict performance thereof, and
such right shall not be deemed to have been waived by any act or knowledge of
the Agent or the Lenders, their agents, officers or employees, unless such
waiver is contained in an instrument in writing duly signed and delivered on the
Lenders' behalf by the Agent. No waiver by the Agent or the Lenders of any
default shall operate as a waiver of any other default or the same default on a
future occasion, and no action by the Agent or the Lenders permitted hereunder
shall in any way affect or impair the Agent's or the Lenders' rights or powers,
or the obligations of the Guarantor under this Guaranty. Any determination by a
court of competent jurisdiction of the amount of any Guaranteed Obligations
owing by the Borrower to the Lenders shall be conclusive and binding on the
Guarantor irrespective of whether the Guarantor was a party to the suit or
action in which such determination was made.
10. Subject to the provisions of Section 8, this Guaranty shall
continue in effect until the Credit Agreement has terminated, the Guaranteed
Obligations has been paid in full and the other conditions of this Guaranty have
been satisfied.
11. In addition to and without limitation of any rights, powers or
remedies of the Agent or the Lenders under applicable law, any time after
maturity of the Guaranteed Obligations, whether by acceleration or otherwise,
the Agent or the Lenders may, in their sole discretion, with notice after the
fact to the Guarantor and regardless of the acceptance of any security or
collateral for the payment hereof, appropriate and apply toward the payment of
the Guaranteed Obligations (a) any indebtedness due or to become due from any of
the Lenders to the Guarantor, and (b) any moneys, credits or other property
belonging to the Guarantor (including all account balances, whether provisional
or final and whether or not collected or available) at any time held by or
coming into the possession of any of the Agent or any Lender whether for deposit
or otherwise.
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12. The Guarantor agrees to pay all costs, fees and expenses (including
reasonable attorneys' fees and time charges, which attorneys may be employees of
the Agent or a Lender) incurred by the Agent or any Lender in collecting or
enforcing the obligations of the Guarantor under this Guaranty.
13. This Guaranty shall bind the Guarantor and its successors and
assigns and shall inure to the benefit of the Agent, the Lenders and their
successors and assigns. All references herein to the Lenders shall for all
purposes also include all Purchasers and Participants (as such terms are defined
in the Credit Agreement). All references herein to the Borrower shall be deemed
to include their successors and assigns including, without limitation, a
receiver, trustee or debtor in possession of or for the Borrower.
14. THIS GUARANTY SHALL BE DEEMED TO HAVE BEEN MADE AT CHICAGO,
ILLINOIS, AND SHALL BE CONSTRUED AND THE RIGHTS AND LIABILITIES OF THE AGENT,
THE LENDERS AND THE GUARANTOR DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS,
WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS, OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS. THE GUARANTOR
CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN XXXX
COUNTY, ILLINOIS, WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT, AND
CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY MESSENGER OR BY REGISTERED
MAIL DIRECTED TO THE GUARANTOR AT THE ADDRESS INDICATED BELOW, AND SERVICE SO
MADE SHALL BE DEEMED TO BE COMPLETED THREE (3) DAYS AFTER THE SAME SHALL HAVE
BEEN POSTED AS AFORESAID. THE GUARANTOR WAIVES ANY OBJECTION BASED ON FORUM NON
CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER.
NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR THE LENDERS TO
SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF
THE AGENT OR THE LENDERS TO BRING ANY ACTION OR PROCEEDING AGAINST THE GUARANTOR
OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
15. EACH OF THE GUARANTOR AND, BY THEIR ACCEPTANCE HEREOF, THE AGENT
AND EACH LENDER, WAIVES TRIAL BY JURY WITH RESPECT TO DISPUTES ARISING
HEREUNDER.
16. Wherever possible, each provision of this Guaranty shall be
interpreted in such 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.
17. Except as otherwise expressly provided herein, any notice required
or desired to be served, given or delivered to any party hereto under this
Guaranty shall be in writing by facsimile, U.S. mail or overnight courier and
addressed or delivered to such party (a) if to the Agent or the Lenders, at
their respective addresses set forth in the Credit Agreement, or
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(b) if to the Guarantor, at its address indicated on Exhibit A hereto, or to
such other address as the Agent or the Lenders or the Guarantor designates to
the Agent in writing. All notices by United States mail shall be sent registered
mail, return receipt requested. Except as otherwise expressly provided herein,
all notices hereunder shall be effective upon delivery or refusal of receipt;
provided, that any notice transmitted by facsimile shall be deemed given when
transmitted.
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IN WITNESS WHEREOF, the Guarantor has entered into this Guaranty as of
the date first above written.
UNDERWRITERS REINSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Senior Vice President and
Its: Chief Financial Officer
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EXHIBIT A TO GUARANTY
Underwriters Reinsurance Company
00000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxxx X. Xxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
