GUARANTY OF PAYMENT (Parent)
Exhibit 10.2
GUARANTY OF PAYMENT
(Parent)
(Parent)
This GUARANTY OF PAYMENT (as the same may from time to time be amended, restated or
otherwise modified, this “Agreement”) is made as of the 11th day of December, 2009, by
▇▇▇▇▇ ENTERPRISES, INCORPORATED, a Florida corporation (“Guarantor”), in favor of KEYBANK NATIONAL
ASSOCIATION, as the administrative agent under the Credit Agreement, as hereinafter defined
(“Agent”), for the benefit of the Lenders, as hereinafter defined.
1. Recitals.
▇▇▇▇▇ (BERMUDA) HOLDINGS LIMITED, a Bermuda exempted company (together with its successors and
assigns, “Borrower”), is entering into that certain Credit Agreement, dated as of December 11,
2009, with the lenders from time to time listed on Schedule 1 thereto (together with their
respective successors and assigns and any other additional lenders that become party to the Credit
Agreement, collectively, the “Lenders” and, individually, each a “Lender”) and Agent (as the same
may from time to time be amended, restated or otherwise modified, the “Credit Agreement”).
Guarantor desires that the Lenders grant the financial accommodations to Borrower as described in
the Credit Agreement. Except as specifically defined herein, capitalized terms used herein that
are defined in the Credit Agreement shall have their respective meanings ascribed to them in the
Credit Agreement.
Guarantor, the indirect owner of all of the equity interest of Borrower, deems it to be in the
direct pecuniary and business interests of Guarantor that Borrower obtain from the Lenders the Loan
provided for in the Credit Agreement.
Guarantor understands that the Lenders are willing to enter into the Credit Agreement only
upon certain terms and conditions, one of which is that Guarantor guarantee the payment of the
Obligations, as hereinafter defined, and this Agreement is being executed and delivered in
consideration of the Lenders entering into the Credit Agreement and each financial accommodation
granted to Borrower by the Lenders and for other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged.
2. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
“Collateral” means, collectively, all property, if any, securing the Obligations or any part
thereof at the time in question.
“Obligations” means, collectively, (a) all Indebtedness and other obligations now owing or
hereafter incurred by Borrower to Agent or any Lender pursuant to the Credit Agreement and the
other Loan Documents, and includes the principal of and interest on the Loan; (b) each renewal,
extension, consolidation or refinancing of any of the foregoing, in whole or in part; (c) any
prepayment fees and any other fees payable pursuant to the Credit Agreement; (d) every
other liability, now or hereafter owing to Agent or any Lender by any Company or Guarantor pursuant
to the Credit Agreement or any other Loan Document; and (e) all Related Expenses.
“Obligor” means any Person that, or any of whose property, is or shall be obligated on the
Obligations or any part thereof in any manner and includes, without limiting the generality of the
foregoing, Borrower or Guarantor, and any other co-maker, endorser, guarantor of payment,
subordinating creditor, assignor, grantor of a security interest, pledgor, mortgagor or any
hypothecator of property, if any.
3. Guaranty of the Obligations. Guarantor hereby absolutely and unconditionally
guarantees (as a guaranty of payment and not merely a guaranty of collection) the prompt payment in
full of all of the Obligations as and when the respective parts thereof become due and payable. If
the Obligations, or any part thereof, shall not be paid in full when due and payable, Agent, on
behalf of the Lenders, in each case, shall have the right to proceed directly against Guarantor
under this Agreement to collect the payment in full of the Obligations, regardless of whether or
not Agent, on behalf of the Lenders, shall have theretofore proceeded or shall then be proceeding
against Borrower or any other Obligor or Collateral, if any, or any of the foregoing, it being
understood that Agent, on behalf of the Lenders, in its sole discretion, may proceed against any
Obligor and any Collateral, and may exercise each right, power or privilege that Agent or the
Lenders may then have, either simultaneously or separately, and, in any event, at such time or
times and as often and in such order as Agent, on behalf of the Lenders, in its sole discretion,
may from time to time deem expedient to collect the payment in full of the Obligations. Guarantor
agrees that all payments made by Guarantor under this Agreement shall be made free and clear of,
and without deduction or withholding for or on account of any Taxes or Other Taxes, in accordance
with Section 3.2 of the Credit Agreement.
4. Payments Conditional. Whenever Agent or any Lender shall credit any payment to the
Obligations or any part thereof, whatever the source or form of payment, the credit shall be
conditional as to Guarantor unless and until the payment shall be final and valid as to all the
world. Without limiting the generality of the foregoing, Guarantor agrees that, if any check or
other instrument so applied shall be dishonored by the drawer or any party thereto, or if any
proceeds of Collateral or payment so applied shall thereafter be recovered by any trustee in
bankruptcy or any other Person, each Lender, in each case, may reverse any entry relating thereto
on its books and Guarantor shall remain liable therefor, even if such Lender may no longer have in
its possession any instrument evidencing the Obligations to which the payment in question was
applied.
5. Guarantor’s Obligations Absolute and Unconditional. Regardless of the duration of
time, regardless of whether Borrower may from time to time cease to be indebted to the Lenders and
irrespective of any act, omission or course of dealing whatsoever on the part of Agent or any of
the Lenders, Guarantor’s liabilities and other obligations under this Agreement shall remain in
full effect until the payment in full of the Obligations. Without limiting the generality of the
foregoing:
5.1. Lenders Have No Duty to Make Advances. Without limiting the obligations of Agent
and the Lenders under the Credit Agreement, no Lender shall at any time be under any
duty to Guarantor to grant any financial accommodation to Borrower, irrespective of any duty or
commitment of any of the Lenders to Borrower, or to follow or direct the application of the
proceeds of any such financial accommodation;
5.2. Guarantor’s Waiver of Notice, Presentment. Guarantor waives (a) notice of the
granting of the Loan to Borrower or the incurring of any other Indebtedness by Borrower or the
terms and conditions thereof, (b) presentment, demand for payment and notice of dishonor of the
Obligations or any part thereof, or any other Indebtedness incurred by Borrower to any of the
Lenders, (c) notice of any indulgence granted to any Obligor, and (d) any other notice to which
Guarantor might, but for this waiver, be entitled;
5.3. Lenders’ Rights Not Prejudiced by Action or Omission. Agent and the Lenders, in
their sole discretion, may, pursuant to the Credit Agreement, without any prejudice to their rights
under this Agreement, at any time or times, without notice to or the consent of Guarantor, (a)
grant Borrower whatever financial accommodations that Agent and the Lenders may from time to time
deem advisable, even if Borrower might be in default in any respect and even if those financial
accommodations might not constitute Indebtedness the payment of which is guaranteed hereunder, (b)
assent to any renewal, extension, consolidation or refinancing of the Obligations, or any part
thereof, (c) forbear from demanding security, if Agent and the Lenders shall have the right to do
so, (d) release any Obligor or Collateral or assent to any exchange of Collateral, if any,
irrespective of the consideration, if any, received therefor, (e) grant any waiver or consent or
forbear from exercising any right, power or privilege that Agent and the Lenders may have or
acquire, (f) assent to any amendment, deletion, addition, supplement or other modification in, to
or of any writing evidencing or securing any of the Obligations or pursuant to which any of the
Obligations are created, (g) grant any other indulgence to any Obligor, (h) accept any Collateral
for, or any other Obligor upon, the Obligations or any part thereof, and (i) fail, neglect or omit
in any way to realize upon any Collateral, to perfect any security interest with respect to
Collateral, or to protect the Obligations or any part thereof or any Collateral therefor;
5.4. Liabilities Survive Guarantor’s Dissolution. Guarantor’s liabilities and other
obligations under this Agreement shall survive any dissolution of Guarantor; and
5.5. Liabilities Absolute and Unconditional. Guarantor’s liabilities and other
obligations under this Agreement shall be absolute and unconditional irrespective of any lack of
validity or enforceability of the Credit Agreement, any Note, any Loan Document or any other
agreement, instrument or document evidencing the Loan or related thereto, the existence of any
claim, set-off or other rights that Guarantor may have against Borrower or any other Person, or any
other defense available to Guarantor in respect of this Agreement (other than the payment in full
of the Obligations).
6. Guarantor’s Obligations Independent. The obligations of Guarantor hereunder are as
set forth in this Agreement and are independent of the obligation of any other Obligor, and a
separate action or actions may be brought and prosecuted against Guarantor whether or not any
action is brought against any other Obligor and whether or not any other Obligor is joined in any
such action.
7. Representations and Warranties. Guarantor represents and warrants to Agent and
each of the Lenders that (a) Guarantor is a duly organized and validly existing corporation, in
good standing under the laws of the state of its incorporation (as referenced in the first
paragraph of this Agreement), and is qualified to do business in each state where a failure to so
qualify would have a material adverse effect on Guarantor; (b) Guarantor has legal power and right
to execute and deliver this Agreement and to perform and observe the provisions hereof; (c) the
officers executing and delivering this Agreement on behalf of Guarantor have been duly authorized
to do so, and this Agreement, when executed, is legal and binding upon Guarantor in every respect;
(d) except for matters described or referenced in the Credit Agreement or any schedule thereto, no
litigation or proceeding is pending or threatened against Guarantor before any court or any
administrative agency that is reasonably expected to have a material adverse effect on Guarantor;
(e) Guarantor has received consideration that is the reasonably equivalent value of the obligations
and liabilities that Guarantor has incurred to Agent, for the benefit of the Lenders; (f) Guarantor
is not insolvent, as defined in any applicable state or federal statute, nor will Guarantor be
rendered insolvent by the execution and delivery of this Agreement to Agent and the Lenders; (g)
Guarantor is not engaged or about to engage in any business or transaction for which the assets
retained by Guarantor are or will be an unreasonably small amount of capital, taking into
consideration the obligations to the Lenders incurred hereunder; and (h) Guarantor does not intend
to, nor does Guarantor believe that Guarantor will, incur debts beyond Guarantor’s ability to pay
such debts as they mature.
8. Events of Default; Disability of Obligor. Without limiting the generality of any of
the other provisions hereof, Guarantor specifically agrees that upon the occurrence and during the
continuance of an Event of Default, Agent and the Required Lenders, in their sole discretion (but
subject to the terms of the Credit Agreement), may declare the unpaid principal balance of and
accrued interest on the Obligations to be forthwith due and payable in full without notice. Upon
the occurrence of certain Events of Default, the unpaid principal balance of and accrued interest
on the Obligations will become due and payable without any action by Agent or the Required Lenders.
Upon the occurrence of any of the events enumerated in the immediately preceding sentences,
Guarantor shall, upon demand of Agent, on behalf of the Lenders, whenever made, pay to Agent, for
the benefit of the Lenders, an amount equal to the then unpaid principal balance of and accrued
interest on the Obligations (provided that no such demand shall be required in the event of an
insolvency of Guarantor).
9. Subordination of Guarantor’s Rights Against Borrower and Collateral. To the extent
permitted by law, Guarantor hereby subordinates to payment in full of the Obligations any claim or
other right that Guarantor might now have or hereafter acquire against Borrower or any other
Obligor that arises from the existence or performance of Guarantor’s liabilities or other
obligations under this Agreement, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, and any right to participate in any
claim or remedy of Agent or any Lender against Borrower or any Collateral that Agent or any Lender
now has or hereafter acquires, whether or not such claim, remedy or right arises in equity, or
under contract, statute or common law, until such time as the Commitment has been terminated and
the Obligations have been repaid in full.
10. Subordination by Guarantor of Borrower’s Indebtedness owed to Guarantor.
Guarantor agrees that the Obligations, whether now existing or hereafter created, shall be superior
to any claim that Guarantor may now have or hereafter acquire against Borrower, whether or not
Borrower becomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have
against Borrower, upon any account whatsoever, to any claim that Agent and the Lenders may now or
hereafter have against Borrower pursuant to the Credit Agreement and the other Loan Documents. In
the event of insolvency and consequent liquidation of the assets of Borrower, through bankruptcy,
by an assignment for the benefit of creditors, by voluntary liquidation, or otherwise, the assets
of Borrower applicable to the payment of the claims of both Agent and the Lenders, and Guarantor
shall be paid to Agent, for the benefit of the Lenders, and shall be first applied by Agent to the
payment of the Obligations in accordance with the Credit Agreement. Guarantor does hereby assign
to Agent, for the benefit of the Lenders, all claims that Guarantor may have or acquire against
Borrower or against any assignee or trustee in bankruptcy of Borrower; provided that such
assignment shall be effective only for the purpose of assuring to Agent, for the benefit of the
Lenders, full payment in legal tender of the Obligations. If Agent so requests, any notes or
credit agreements now or hereafter evidencing any indebtedness or obligations of Borrower to
Guarantor shall be marked with a legend that the same are subject to this Agreement and shall be
delivered to Agent. Guarantor agrees, and Agent is hereby authorized, in the name of Guarantor,
from time to time to execute documents and to take such other actions as Agent deems necessary or
appropriate to preserve and enforce Agent’s rights under this Agreement.
11. Stay of Acceleration. In the event that acceleration of the time for payment of
any of the Obligations is stayed, upon the insolvency, bankruptcy or reorganization of Borrower or
any other Person, or otherwise, all such amounts shall nonetheless be payable by Guarantor
immediately upon demand by Agent.
12. Notice. All notices, requests, demands and other communications provided for
hereunder shall be in writing and, if to Guarantor, mailed or delivered to it, addressed to it at
the address specified on the signature page of this Agreement, if to Agent or any Lender, mailed or
delivered to it, addressed to the address of Agent or such Lender specified on the signature pages
of the Credit Agreement, or, as to each party, at such other address as shall be designated by such
party in a written notice to each of the other parties. All notices, statements, requests, demands
and other communications provided for hereunder shall be deemed to be given or made when delivered
or two Business Days after being deposited in the mails with postage prepaid by registered or
certified mail, addressed as aforesaid, or sent by facsimile with telephonic confirmation of
receipt, except that notices hereunder shall not be effective until received.
13. Successors and Assigns. This Agreement shall bind Guarantor and Guarantor’s
successors and assigns and shall inure to the benefit of Agent and each Lender and their respective
successors and assigns, including (without limitation) each holder of any Note evidencing any of
the Obligations.
14. Invalidity. If, at any time, one or more provisions of this Agreement is or
becomes invalid, illegal or unenforceable in whole or in part, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
15. Entire Agreement. This Agreement constitutes a final written expression of all of
the terms of this Agreement, is a complete and exclusive statement of those terms and supersedes
all oral representations, negotiations and prior writings, if any, with respect to the subject
matter hereof.
16. Relationship of Parties; Setoffs. The relationship between (a) Guarantor and (b)
Agent and the Lenders with respect to this Agreement is and shall be solely that of debtor and
creditors, respectively, and Agent and the Lenders shall have no fiduciary obligation toward
Guarantor with respect to this Agreement or the transactions contemplated hereby. If and to the
extent any payment is not made when due hereunder, Agent and each Lender may setoff and charge from
time to time any amount so due against any and all of Guarantor’s accounts or deposits with Agent
or such Lender.
17. Headings; Execution. The headings and subheadings used herein are for convenience
of reference only and shall be ignored in interpreting the provisions of this Agreement. This
Agreement may be executed by facsimile signature, which, when so executed and delivered, shall be
deemed to be an original.
18. Governing Law; Submission to Jurisdiction. The provisions of this Agreement and
the respective rights and duties of Guarantor, Agent and the Lenders hereunder shall be governed by
and construed in accordance with Ohio law, without regard to principles of conflicts of laws that
would result in the application of the law of any other state. Guarantor hereby irrevocably submits
to the non-exclusive jurisdiction of any Ohio state or federal court sitting in Cleveland, Ohio,
over any action or proceeding arising out of or relating to this Agreement, any Loan Document or
any Related Writing, and Guarantor hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in such Ohio state or federal court. Guarantor,
on behalf of itself and its Subsidiaries, hereby irrevocably waives, to the fullest extent
permitted by law, any objection it may now or hereafter have to the laying of venue in any such
action or proceeding in any such court as well as any right it may now or hereafter have to remove
such action or proceeding, once commenced, to another court on the grounds of FORUM NON CONVENIENS
or otherwise. Guarantor agrees that a final, nonappealable judgment in any such action or
proceeding in any state or federal court in the State of Ohio shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
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JURY TRIAL WAIVER. GUARANTOR, TO THE EXTENT PERMITTED BY LAW, HEREBY WAIVES ANY RIGHT
TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, AMONG AGENT, THE LENDERS, BORROWER AND GUARANTOR, OR ANY THEREOF, ARISING OUT OF, IN
CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION
WITH THIS AGREEMENT OR ANY NOTE OR OTHER AGREEMENT, INSTRUMENT OR DOCUMENT EXECUTED OR DELIVERED IN
CONNECTION THEREWITH OR THE TRANSACTIONS RELATED THERETO.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Guaranty of Payment as of
the date first set forth above.
| Address: | ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
▇▇▇▇▇ ENTERPRISES, INCORPORATED |
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| Attn: Chief Financial Officer | By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President |
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Guaranty of Payment
Guaranty of Payment