Article IX**
Guarantee
| (a) | Each Guarantor hereby absolutely, unconditionally and irrevocably, jointly and severally, guarantees to the Lenders, 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 the Borrower now or hereafter existing under or in respect of the Loan Documents (including 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 of the Guarantors being the “Guaranteed Obligations”), and agrees to pay any and all reasonable expenses (including reasonable fees and expenses of counsel) incurred by any Lender or the Collateral Agent in enforcing any rights under this Section 9.01 (Guarantee) (the foregoing obligations, collectively, the “Guarantee”). |
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| (b) | Each Guarantor, and by its acceptance of this Guarantee and each Lender, hereby confirms that it is the intention of all such Persons that this Guarantee and the Guaranteed Obligations of such Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Code, the Bankruptcy and Insolvency Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal, provincial, territorial or state law to the extent applicable to this Guarantee and the Guaranteed Obligations of such Guarantor hereunder. To effectuate the foregoing intention, the Lenders and each Guarantor hereby irrevocably agree that the Guaranteed Obligations of such Guarantor under this Guarantee at any time shall be limited to the maximum amount as will result in the Guaranteed Obligations of such Guarantor under this Guarantee not constituting a fraudulent transfer or conveyance. |
| 9.02 | Guarantee and Grant of Security Interest Absolute |
Each Guarantor guarantees that the 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. To the maximum extent permitted by law, the Guaranteed Obligations of each Guarantor under or in respect of this Agreement are independent of the Obligations of the Borrower, under or in respect of the Loan Documents, and a separate action or actions may be brought and prosecuted against such Guarantor to enforce this Agreement, irrespective of whether any action is brought against the Borrower or whether the Borrower is joined in any such action or actions. The Guaranteed Obligations of each Guarantor under this Agreement and the rights of the Lenders shall be irrevocable, absolute and unconditional irrespective of, and each 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 amendment or waiver of or any consent to departure from any Loan Document or any other agreement or instrument relating thereto, including any increase in the Guaranteed Obligations resulting from the extension of additional credit to the Borrower (as applicable); |
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| (c) | any taking, exchange, release or non-perfection of any Collateral or any taking, release or amendment or waiver of, or consent to departure from, any guarantee, for all or any of the Guaranteed Obligations; |
| (d) | any manner of application of Collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any Collateral for all or any of the Guaranteed Obligations or any other assets of the Borrower (as applicable); |
| (e) | any change, restructuring or termination of the corporate structure or existence of the Borrower; |
| (f) | the failure of any other Person to execute or deliver any other guarantee or agreement or the release or reduction of liability of any other guarantor or surety with respect to the Guaranteed Obligations; |
| (g) | any limitation on any party’s liability or obligations under any Loan Document; |
| (h) | any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to the Borrower, or any action taken with respect to this Agreement or any other Loan Document by any trustee, receiver, interim receiver, receiver/manager, custodian, liquidator, sequestrator, administrator or other similar official, or by any court, in any such proceeding; or |
| (i) | any other circumstance (including any statute of limitations) that might otherwise constitute a legal or equitable defense available to, or discharge of, a surety or a guarantor. |
This Guarantee 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 the Borrower or any other Obligor or otherwise, all as though such payment had not been made.
| 9.03 | Waivers and Acknowledgments |
| (a) | Each Guarantor’s guarantee under Section 9.01 (Guarantee) is a guarantee of payment and not of collection. Each Guarantor hereby unconditionally and irrevocably waives, to the maximum extent permitted by law, promptness, diligence, notice of acceptance, presentment, demand for performance, notice of non-performance, default, acceleration, protest or dishonor and any other notice with respect to any of the Obligations and this Agreement 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 the Borrower (as applicable) or any other Person or any Collateral. |
| (b) | Each Guarantor hereby acknowledges that the Guarantee is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future, and shall remain in full force and effect until such time as the Guaranteed Obligations have been discharged finally and in full. |
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| (c) | Each Guarantor hereby unconditionally and irrevocably waives, to the maximum extent permitted by law, (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 such Guarantor or other rights of such Guarantor to proceed against the Borrower, 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 Borrower. |
| (d) | Each Guarantor acknowledges that the Majority Lenders may, without notice to or demand upon any Obligor and without affecting the liability of such Guarantor under this Agreement, foreclose under any Security Document by nonjudicial sale, and such Guarantor hereby waives any defense to the recovery by the Lenders against such Guarantor of any deficiency after such nonjudicial sale and any defense or benefits that may be afforded by Applicable Law; provided that such nonjudicial sale is conducted in accordance with Applicable Law. |
| (e) | Each 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 9.02 (Guarantee and Grant of Security Interest Absolute) and this Section 9.03 (Waivers and Acknowledgments) are knowingly made in contemplation of such benefits. |
Each Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Borrower, that arise from the existence, payment, performance or enforcement of such Guarantor’s Guaranteed Obligations under or in respect of the Guarantee, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Lender against the Borrower or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from the Borrower, 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 the date that all Obligations are indefeasibly paid or discharged in full. Notwithstanding the foregoing sentence, if any amount shall be paid to a Guarantor in violation of the immediately preceding sentence at any time prior to the occurrence of the date that all Obligations are indefeasibly paid or discharged in full, such amount shall be received and held in trust for the benefit of the Lenders, shall be segregated from other Property and funds of such Guarantor and shall forthwith be paid or delivered to the Lenders 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 Agreement, whether matured or unmatured, in accordance with the terms of the Loan Documents, or to be held as Collateral for any Guaranteed Obligations or other amounts payable under this Agreement and any other Loan Document thereafter arising. Upon the occurrence of the date that all Obligations are indefeasibly paid or discharged in full, the Lenders will, promptly at such Guarantor’s reasonable request and at the Borrower’s expense, execute and deliver to such Person appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by such Guarantor pursuant to the Guarantee.
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