EXHIBIT 10.19
TIME GUARANTY
Dated as of April 25, 2000
From c-quential, Inc.
as Guarantor
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in favor of
THE LENDERS REFERRED TO IN THE
AMENDED AND RESTATED CREDIT AGREEMENT
REFERRED TO HEREIN
TABLE OF CONTENTS
Page
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Section 1. Guaranty; Limitation of Liability.......................... 1
Section 2. Automatic Release.......................................... 2
Section 3. Guaranty Absolute.......................................... 2
Section 4. Waivers and Acknowledgements............................... 3
Section 5. Subrogation................................................ 4
Section 6. Payments Free and Clear of Taxes, Etc...................... 5
Section 7. Representations and Warranties............................. 7
Section 8. Covenants.................................................. 7
Section 9. Amendments, Etc............................................ 8
Section 10. Notices, Etc............................................... 8
Section 11. No Waiver, Remedies........................................ 8
Section 12. Right of Set-off........................................... 8
Section 13. Indemnification............................................ 9
Section 14. Subordination.............................................. 9
Section 15. Continuing Guaranty; Assignments under the Credit
Agreement.................................................. 10
Section 16. Execution in Counterparts.................................. 10
Section 17. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc..... 11
TIME GUARANTY
TIME GUARANTY dated as of April 25, 2000, made by c-quential, Inc., a
Delaware corporation (the " Guarantor" or "TIME") in favor of the Lenders (as
defined in the Credit Agreement referred to below).
PRELIMINARY STATEMENTS. (1) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Inc., a Massachusetts
corporation ("ADL" or a "Borrower") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ International, Inc., a
Massachusetts corporation (a "Borrower" and, together with ADL, the
"Borrowers"), are parties to the Amended and Restated Credit Agreement dated as
of April 25, 2000 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"; the capitalized terms
defined therein and not otherwise defined herein being used herein as therein
defined) with certain Lenders party thereto and Citibank, N.A., as Agent.
(2) The Borrowers entered into a Credit Agreement dated as of June 22, 1998
(the "Existing Credit Agreement"), with the Initial Lenders (as defined therein)
and the Agent. Pursuant to the Existing Credit Agreement, the Initial Lenders
made Advances to the Borrowers and, as at the date of this Agreement, Advances
in the aggregate amount of $29,000,000 are outstanding. The Initial Lenders and
the Borrowers have agreed to amend and restate the Existing Credit Agreement in
order to waive certain defaults under the Existing Credit Agreement and provide
for the repayment of all Advances as provided in the Amended and Restated Credit
Agreement. It is a condition precedent to the effectiveness of the Amended and
Restated Credit Agreement that the Guarantor shall have executed and delivered
this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to induce the
Lenders to enter into the Credit Agreement the Guarantor hereby agrees as
follows:
Section 1. Guaranty; Limitation of Liability.
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(a) Subject to Section 2, the Guarantor hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due,
whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all Obligations of each other Loan Party
now or hereafter existing under or in respect of the Loan Documents (including,
without limitation, any extensions, modifications, substitutions, amendments or
renewals of any or all of the foregoing Obligations), whether direct or
indirect, absolute or contingent, and whether for principal, interest, premiums,
fees, indemnities, contract causes of action, costs, expenses or otherwise (such
Obligations being the "Guaranteed Obligations"), and agrees to pay any and all
expenses (including, without limitation, fees and expenses of counsel) incurred
by the Agent or any other Lender in enforcing any rights under this Guaranty, or
any other Loan Document. Without limiting the generality of the foregoing, the
Guarantor's liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by any other Loan Party to any Lender
under or in respect of the Loan Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such other Loan Party.
(b) The Guarantor, and by its acceptance of this Guaranty, the Agent
and each other Lender, hereby confirms that it is the intention of all such
Persons that this Guaranty and
the Obligations of the Guarantor hereunder not constitute a fraudulent transfer
or conveyance for purposes of Bankruptcy Law (as hereinafter defined), the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar foreign, federal or state law to the extent applicable to this Guaranty
and the Obligations of the Guarantor hereunder. To effectuate the foregoing
intention, the Agent, the other Lenders and the Guarantor hereby irrevocably
agree that the Obligations of the Guarantor under this Guaranty at any time
shall be limited to the maximum amount as will result in the Obligations of the
Guarantor under this Guaranty not constituting a fraudulent transfer or
conveyance. For purposes hereof, "Bankruptcy Law" means any proceeding of the
type referred to in Section 7.01(e) of the Credit Agreement or Title 11, U.S.
Code, or any similar foreign, federal or state law for the relief of debtors.
(c) The Guarantor hereby unconditionally and irrevocably agrees that
in the event any payment shall be required to be made to any Lender under this
Guaranty or the ADL Guaranty or any other guaranty, the Guarantor will
contribute, to the maximum extent permitted by law, such amounts so as to
maximize the aggregate amount paid to the Lenders under or in respect of the
Loan Documents.
Section 2. Automatic Release. Notwithstanding any other provision of
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this Guaranty or any other Loan Document to the contrary, the obligations of the
Guarantor hereunder shall be, without notice of any kind, automatically and
forever released and discharged upon a Successful TIME IPO. For the purpose of
this Section 2, "Successful TIME IPO" means that the Borrowers shall have caused
TIME to file with the Securities and Exchange Commission a registration
statement for the public offering of shares representing not less than 8% of the
common stock of TIME; and shall have caused such registration statement to
become effective and all such shares shall have been sold pursuant to an initial
public offering.
Section 3. Guaranty Absolute. The Guarantor guarantees that the
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Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Lender with respect thereto. The Obligations of the Guarantor under or in
respect of this Guaranty are independent of the Guaranteed Obligations or any
other Obligations of any other Loan Party under or in respect of the Loan
Documents, and a separate action or actions may be brought and prosecuted
against the Guarantor to enforce this Guaranty, irrespective of whether any
action is brought against the Borrowers or any other Loan Party or whether any
Borrower or any other Loan Party is joined in any such action or actions. The
liability of the Guarantor under this Guaranty shall be irrevocable, absolute
and unconditional irrespective of, and the Guarantor hereby irrevocably waives
any defenses it may now have or hereafter acquire in any way relating to, any or
all of the following:
(a) any lack of validity or enforceability of any Loan Document, or
any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under or in respect of the Loan
Documents, or any other amendment or waiver of or any consent to departure
from any Loan Document, including, without
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limitation, any increase in the Guaranteed Obligations resulting from the
extension of additional credit to any Loan Party or any of its Subsidiaries
or otherwise;
(c) any taking, exchange, release or non-perfection of any Collateral
or any other collateral, or any taking, release or amendment or waiver of,
or consent to departure from, any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any manner of application of Collateral or any other collateral,
or proceeds thereof, to all or any of the Guaranteed Obligations, or any
manner of sale or other disposition of any Collateral or any other
collateral for all or any of the Guaranteed Obligations or any other
Obligations of any Loan Party under the Loan Documents, or any other assets
of any Loan Party or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
(f) any failure of any Lender to disclose to any Loan Party any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party
now or hereafter known to such Lender (the Guarantor waives any duty on the
part of the Lenders to disclose such information);
(g) the failure of any other Person to execute or deliver this
Guaranty, any Guaranty Supplement (as hereinafter defined) or any other
guaranty or agreement or the release or reduction of liability of any
Guarantor or other guarantor or surety with respect to the Guaranteed
Obligations; or
(h) any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any representation by
any Lender that might otherwise constitute a defense available to, or a
discharge of, any Loan Party or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any Lender or any other Person upon the
insolvency, bankruptcy or reorganization of any Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
Section 4. Waivers and Acknowledgements.
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(a) The Guarantor hereby unconditionally and irrevocably waives
promptness, diligence, notice of acceptance, presentment, demand for
performance, notice of nonperformance, default, acceleration, protest or
dishonor and any other notice with respect to any of the Guaranteed Obligations
and this Guaranty and any requirement that any Lender protect, secure, perfect
or insure any Lien or any property subject thereto or exhaust any right or take
any action against any Loan Party or any other Person or any Collateral.
(b) The Guarantor hereby unconditionally and irrevocably waives any
right to revoke this Guaranty and acknowledges that this Guaranty is continuing
in nature and applies to all Guaranteed Obligations, whether existing now or in
the future.
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(c) The Guarantor hereby unconditionally and irrevocably waives
(i) any defense arising by reason of any claim or defense based upon an election
of remedies by any Lender that in any manner impairs, reduces, releases or
otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of the Guarantor or other rights of the
Guarantor to proceed against any of the other Loan Parties, any other guarantor
or any other Person or any Collateral and (ii) any defense based on any right of
set-off or counterclaim against or in respect of the Obligations of the
Guarantor hereunder.
(d) The Guarantor acknowledges that the Collateral Agent may, without
notice to or demand upon the Guarantor and without affecting the liability of
the Guarantor under this Guaranty, foreclose under any mortgage by nonjudicial
sale, and the Guarantor hereby waives any defense to the recovery by the
Collateral Agent and the other Lenders against the Guarantor of any deficiency
after such nonjudicial sale and any defense or benefits that may be afforded by
applicable law.
(e) The Guarantor hereby unconditionally and irrevocably waives any
duty on the part of any Lender to disclose to the Guarantor any matter, fact or
thing relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Loan Party or any of its
Subsidiaries now or hereafter known by such Lender.
(f) The Guarantor acknowledges that it will receive substantial direct
and indirect benefits from the financing arrangements contemplated by the Loan
Documents, and that the waivers set forth in Section 3 and this Section 4 are
knowingly made in contemplation of such benefits.
Section 5. Subrogation. The Guarantor hereby unconditionally and
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irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the Borrowers, any other Loan Party or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
the Guarantor's Obligations under or in respect of this Guaranty, or any other
Loan Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of any Lender against the Borrowers, any
other Loan Party or any other insider guarantor or any Collateral, whether or
not such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive from any
Borrower, any other Loan Party or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash, and all Letters of Credit shall
have expired or been terminated and the Commitments shall have expired or been
terminated. If any amount shall be paid to the Guarantor in violation of the
immediately preceding sentence at any time prior to the latest of (a) the
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty, (b) the Termination Date and (c) the latest date of
expiration or termination of all Letters of Credit, such amount shall be
received and held in trust for the benefit of the Lenders, shall be segregated
from other property and funds of the Guarantor and shall forthwith be paid or
delivered to the Agent in the same form as so received (with any necessary
endorsement or assignment) to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this Guaranty, whether matured
or unmatured, in
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accordance with the terms of the Loan Documents to be held as Collateral for any
Guaranteed Obligations or other amounts payable under this Guaranty thereafter
arising. If (i) any Guarantor shall make payment to any Lender of all or any
part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and
all other amounts payable under this Guaranty shall have been paid in full in
cash, (iii) the Termination Date shall have occurred and (iv) all Letters of
Credit shall have expired or been terminated, the Lenders will, at the
Guarantor's request and expense, execute and deliver to the Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to the Guarantor of an
interest in the Guaranteed Obligations resulting from such payment made by the
Guarantor pursuant to this Guaranty.
Section 6. Payments Free and Clear of Taxes, Etc.
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(a) Any and all payments made by the Guarantor under or in respect of
this Guaranty, or any other Loan Document shall be made, in accordance with
Section 2.09 of the Credit Agreement, free and clear of and without deduction
for any and all present or future Taxes. If the Guarantor shall be required by
law to deduct any Taxes from or in respect of any sum payable under or in
respect of this Guaranty, or any other Loan Document to any Lender, (i) the sum
payable by the Guarantor shall be increased as may be necessary so that after
the Guarantor and the Agent have made all required deductions (including
deductions applicable to additional sums payable under this Section 5), such
Lender receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Guarantor shall make all such deductions and
(iii) the Guarantor shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Guarantor agrees to pay any present or future
Other Taxes that arise from any payment made by or on behalf of the Guarantor
under or in respect of this Guaranty, or any other Loan Document or from the
execution, delivery or registration of, performance under, or otherwise with
respect to, this Guaranty, and the other Loan Documents.
(c) The Guarantor will indemnify each Lender for and hold it harmless
against the full amount of Taxes and Other Taxes, and for the full amount of
taxes of any kind imposed by any jurisdiction on amounts payable under this
Section 6, imposed on or paid by such Lender and any liability (including
penalties, additions to tax, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the
date such Lender makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes by or on
behalf of the Guarantor, the Guarantor shall furnish to the Agent, at its
address referred to in Section 9, the original or a certified copy of a receipt
evidencing such payment. In the case of any payment hereunder by or on behalf
of the Guarantor through an account or branch outside the United States or by or
on behalf of the Guarantor by a payor that is not a United States person, if the
Guarantor determines that no Taxes are payable in respect thereof, the Guarantor
shall furnish, or shall cause such payor to furnish, to the Agent, at such
address, an opinion of counsel acceptable to the Agent stating that such payment
is exempt from Taxes. For purposes of subsections (d) and (e) of this Section
6, the terms "United States" and "United States person" shall have the meanings
specified in Section 7701 of the Internal Revenue Code.
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(e) Upon the reasonable request in writing of the Guarantor, each
Lender organized under the laws of a jurisdiction outside the United States
shall, on or prior to the date of its execution and delivery of the Credit
Agreement in the case of each Initial Lender or Initial Issuing Bank, as the
case may be, and on or prior to the date of the Assignment and Acceptance
pursuant to which it becomes a Lender in the case of each other party, and from
time to time thereafter upon the reasonable request in writing by the Guarantor
(but only so long thereafter as such Lender remains lawfully able to do so),
provide each the Agent and the Guarantor with two original Internal Revenue
Service forms 1001 or 4224, as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender is
exempt from or entitled to a reduced rate of United States withholding tax on
payments under the Credit Agreement or the Notes. If the forms provided by a
Lender at the time such Lender first becomes a party to the Credit Agreement
indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Lender provides the appropriate form certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall be considered
excluded from Taxes for periods governed by such forms; provided, however, that
if, in the case of a Lender becoming a party to the Credit Agreement, at the
date of the Assignment and Acceptance pursuant to which a Lender becomes a party
to the Credit Agreement, the Lender assignor was entitled to payments under
subsection (a) of this Section 6 in respect of United States withholding tax
with respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender assignee on such date. If
any form or document referred to in this subsection (e) and requested by the
Guarantor pursuant to this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001
or 4224 (or the related certificate described above), that the applicable Lender
reasonably considers to be confidential, such Lender shall give notice thereof
to the Guarantor and shall not be obligated to include in such form or document
such confidential information.
(f) For any period with respect to which a Lender has failed to
provide the Guarantor, following the Guarantor's request therefor pursuant to
subsection (e) above, with the appropriate form described in subsection (e)
above (other than if such failure is due to a change in law occurring after the
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date on which a form originally was required to be provided or if such form
otherwise is not required under subsection (e) above), such Lender shall not be
entitled to indemnification under subsection (a) or (c) of this Section 6 with
respect to Taxes imposed by the United States by reason of such failure;
provided, however, that should a Lender become subject to Taxes because of its
failure to deliver a form required hereunder, the Guarantor shall take such
steps as such Lender shall reasonably request to assist such Lender to recover
such Taxes.
(g) If any Lender determines, in its sole discretion, that it has
actually and finally realized, by reason of a refund, deduction or credit of any
Taxes paid or reimbursed by the Guarantor pursuant to subsection (a) or (c)
above in respect of payments under the Loan Documents, a current monetary
benefit that it would otherwise not have obtained, and that would result in the
total payments under this Section 6 exceeding the amount needed to make such
Lender whole, such Lender shall pay to the Guarantor, with reasonable promptness
following the
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date on which it actually realizes such benefit, an amount equal to the lesser
of the amount of such benefit or the amount of such excess, in each case net of
all out-of-pocket expenses in securing such refund, deduction or credit.
Section 7. Representations and Warranties. The Guarantor hereby makes
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each representation and warranty made in the Loan Documents by the Borrower with
respect to the Guarantor and the Guarantor hereby further represents and
warrants as follows:
(a) There are no conditions precedent to the effectiveness of this
Guaranty that have not been satisfied or waived.
(b) The Guarantor has, independently and without reliance upon any
Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Guaranty and each other Loan Document to which it is or is to be a party,
and the Guarantor has established adequate means of obtaining from each
other Loan Party on a continuing basis information pertaining to, and is
now and on a continuing basis will be completely familiar with, the
business, condition (financial or otherwise), operations, performance,
properties and prospects of such other Loan Party.
(c) The Guarantor and each of its Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization.
(d) The execution, delivery and performance by the Guarantor of the
Loan Documents to which it is or is to be a party, and the consummation of
the transactions contemplated thereby, are within the Guarantor's corporate
powers, have been duly authorized by all necessary corporate action, and do
not contravene (i) the Guarantor's charter or by-laws or (ii) law or any
contractual restriction binding on or affecting the Guarantor.
(e) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
the Guarantor of the Loan Documents to which it is or is to be a party.
(f) The Guarantor and its Subsidiaries own all of the assets reflected
in the Consolidated balance sheet of the Guarantor as at the date of such
balance sheet or acquired since that date (except property and assets sold
or otherwise disposed of in accordance with the provisions of the Credit
Agreement since that date).
Section 8. Covenants. The Guarantor covenants and agrees that, so long
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as any part of the Guaranteed Obligations shall remain unpaid, any Letter of
Credit shall be outstanding, any Lender shall have any Commitment, the Guarantor
will perform and observe, and cause each of its Subsidiaries to perform and
observe, all of the terms, covenants and agreements set forth in the Loan
Documents on its or their part to be performed or observed or that the Borrower
has agreed to cause the Guarantor or the Subsidiaries to perform or observe.
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Section 9. Amendments, Etc. (a) No amendment or waiver of any provision
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of this Guaranty and no consent to any departure by the Guarantor therefrom
shall in any event be effective unless the same shall be in writing and signed
by the Agent and the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all of the Lenders, (i) reduce or limit the obligations of
the Guarantor hereunder, release the Guarantor hereunder or otherwise limit the
Guarantor's liability with respect to the Obligations owing to the Lenders under
or in respect of the Loan Documents except as provided in the next succeeding
sentence, (ii) postpone any date fixed for payment hereunder or (c) change the
number of Lenders or the percentage of (x) the Commitments, (y) the aggregate
unpaid principal amount of the Advances or (z) the aggregate Available Amount of
outstanding Letters of Credit that, in each case, shall be required for the
Lenders or any of them to take any action hereunder.
Section 10. Notices, Etc. All notices and other communications provided
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for hereunder shall be in writing (including telegraphic, telecopy or telex
communication) and mailed, telegraphed, telecopied, telexed or delivered to it,
if to the Guarantor, addressed to it in care of the Borrower at the Borrower's
address specified in Section 9.02 of the Credit Agreement, if to any Agent or
any Lender Party, at its address specified in Section 9.02 of the Credit
Agreement or, as to any party, at such other address as shall be designated by
such party in a written notice to each other party. All such notices and other
communications shall, when mailed, telegraphed, telecopied or telexed, be
effective when deposited in the mails, delivered to the telegraph company,
transmitted by telecopier or confirmed by telex answerback, respectively.
Delivery by telecopier of an executed counterpart of a signature page to any
amendment or waiver of any provision of this Guaranty or of any Guaranty
Supplement to be executed and delivered hereunder shall be effective as delivery
of an original executed counterpart thereof.
Section 11. No Waiver, Remedies. No failure on the part of any Lender
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to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 12. Right of Set-off. Upon (a) the occurrence and during the
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continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 7.01 of the Credit Agreement to
authorize the Agent to declare the Notes due and payable pursuant to the
provisions of said Section 7.01, each Agent and each Lender and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such, Agent, Lender or such Affiliate to
or for the credit or the account of the Guarantor against any and all of the
Obligations of the Guarantor now or hereafter existing under the Loan Documents,
irrespective of whether such Agent or such Lender shall have made any demand
under this Guaranty or any other Loan Document and although such Obligations may
be unmatured. Each Agent and each Lender agrees promptly to notify the
Guarantor after any such set-off and application; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Agent, Lender and their respective Affiliates
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under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Agent, such Lender and
their respective Affiliates may have.
Section 13. Indemnification.
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(a) Without limitation on any other Obligations of the Guarantor or
remedies of the Lenders under this Guaranty, the Guarantor shall, to the fullest
extent permitted by law, indemnify, defend and save and hold harmless each
Lender and each of their Affiliates and their respective officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against,
and shall pay on demand, any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party in connection with or as a result of any failure of any Guaranteed
Obligations to be the legal, valid and binding obligations of any Loan Party
enforceable against such Loan Party in accordance with their terms.
(b) The Guarantor hereby also agrees that none of the Indemnified
Parties shall have any liability (whether direct or indirect, in contract, tort
or otherwise) to the Guarantor or any of its Affiliates or any of their
respective officers, directors, employees, agents and advisors, and the
Guarantor hereby agrees not to assert any claim against any Indemnified Party on
any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Facilities, the actual or
proposed use of the proceeds of the Advances or the Letters of Credit, the Loan
Documents or any of the transactions contemplated by the Loan Documents.
(c) Without prejudice to the survival of any of the other agreements
of the Guarantor under this Guaranty or any of the other Loan Documents the
agreements and obligations of the Guarantor contained in Section I(a) (with
respect to enforcement expenses), the last sentence of Section 3, Section 6 and
this Section 13 shall survive the payment in full of the Guaranteed Obligations
and all of the other amounts payable under this Guaranty.
Section 14. Subordination. The Guarantor hereby subordinates any and
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all debts, liabilities and other Obligations owed to the Guarantor by each other
Loan Party (the "Subordinated Obligations") to the Guaranteed Obligations to the
extent and in the manner hereinafter set forth in this Section 14:
(a) Prohibited Payments, Etc. Except during the continuance of a
------------------------
Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to any other Loan Party), the Guarantor
may receive regularly scheduled payments from any other Loan Party on
account of the Subordinated Obligations. After the occurrence and during
the continuance of any Default (including the commencement and continuation
of any proceeding under any Bankruptcy Law relating to any other Loan
Party), however, unless the Agent otherwise agrees, the Guarantor shall not
demand, accept or take any action to collect any payment on account of the
Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding under
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any Bankruptcy Law relating to any other Loan Party, the Guarantor agrees
that the Lenders
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shall be entitled to receive payment in full in cash of all Guaranteed
Obligations (including all interest and expenses accruing after the
commencement of a proceeding under any Bankruptcy Law, whether or not
constituting an allowed claim in such proceeding ("Post Petition
Interest")) before the Guarantor receives payment of any Subordinated
Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any
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Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to any other Loan Party), the Guarantor
shall, if the Agent so requests, collect, enforce and receive payments on
account of the Subordinated Obligations as trustee for the Lenders and
deliver such payments to the Agent on account of the Guaranteed Obligations
(including all Post Petition Interest), together with any necessary
endorsements or other instruments of transfer, but without reducing or
affecting in any manner the liability of the Guarantor under the other
provisions of this Guaranty.
(d) Agent Authorization. After the occurrence and during the
-------------------
continuance of any Default (including the commencement and continuation of
any proceeding under any Bankruptcy Law relating to any other Loan Party),
the Agent is authorized and empowered (but without any obligation to so
do), in its discretion, (i) in the name of each Guarantor, to collect and
enforce, and to submit claims in respect of, Subordinated Obligations and
to apply any amounts received thereon to the Guaranteed Obligations
(including any and all Post Petition Interest), and (ii) to require the
Guarantor (A) to collect and enforce, and to submit claims in respect of,
Subordinated Obligations and (B) to pay any amounts received on such
obligations to the Agent for application to the Guaranteed Obligations
(including any and all Post Petition Interest).
Section 15. Continuing Guaranty; Assignments under the Credit Agreement.
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This Guaranty is a continuing guaranty and, subject to the provisions of
Section 2, shall (a) remain in full force and effect until the latest of (i) the
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty, (ii) the Termination Date and (iii) the date of
expiration or termination of all Letters of Credit, (b) be binding upon the
Guarantor, its successors and assigns and (c) inure to the benefit of and be
enforceable by the Lenders and their successors, transferees and assigns.
Without limiting the generality of clause (c) of the immediately preceding
sentence, any Lender may assign or otherwise transfer all or any portion of its
rights and obligations under the Credit Agreement (including, without
limitation, all or any portion of its Commitments, the Advances owing to it and
the Note or Notes held by it) to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect thereof granted to such
Lender herein or otherwise, in each case as and to the extent provided in
Section 9.07 of the Credit Agreement. The Guarantor shall not assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders.
Section 16. Execution in Counterparts. This Guaranty and each
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amendment, waiver and consent with respect hereto may be executed in any number
of counterparts and by different parties thereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
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Delivery of an executed counterpart of a signature page to this Guaranty by
telecopier shall be effective as delivery of an original executed counterpart of
this Guaranty.
Section 17. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.
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(a) This Guaranty shall be governed by, and construed in accordance
with, the laws of the State of New York.
(b) The Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Guaranty, or any of the other Loan Documents to which
it is or is to be a party, or for recognition or enforcement of any judgment,
and the Guarantor hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in any
such New York State court or, to the extent permitted by law, in such federal
court. The Guarantor agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Guaranty or any other Loan Document shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Guaranty or
any other Loan Document in the courts of any jurisdiction.
(c) The Guarantor irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Guaranty or any of the other Loan Documents
to which it is or is to be a party in any New York State or federal court. The
Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such suit, action or
proceeding in any such court.
(d) THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE ADVANCES
OR THE ACTIONS OF ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT THEREOF.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
c-quential, Inc., a Delaware corporation,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
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