GUARANTY OF OBLIGATIONS OF CLR ROASTERS, LLC
Exhibit 10.4
GUARANTY OF OBLIGATIONS OF CLR ROASTERS, LLC
This GUARANTY, dated as of December 13, 2018 (this
“Guaranty”), is made by the undersigned (a
“Guarantor), in favor of
Xxxx Xxxxxx, in his capacity as the Lender pursuant to the Credit
Agreement (each as defined below).
W I T N E S S E T H:
WHEREAS, CLR Roasters, LLC, a Florida limited
liability company with its executive offices located at
0000-0000 XX 00xx
Xxxxxx, Xxxxx, Xxxxxxx 00000 (the
“Parent”), Guarantor, a wholly-owned Subsidiary of
the Parent with its executive offices located at x/x
Xxxxxxxxx Xx Xxxx, Xx 000 Xxxxxxxxx, Xxxxxx/Xxxxxxxxx, Xxxxxxxxx
and Lender are parties to the Credit
Agreement, dated as of the date hereof (as amended, restated,
extended, replaced or otherwise modified from time to time and
together with all amendments, supplements and exhibits thereto,
collectively, the “Credit
Agreement”), pursuant to
which, among other actions set forth therein Lender shall be
required, subject to the conditions of the Credit Agreement, if
requested by Parent, to purchase up to a maximum $5,000,000
aggregate principal amount of Credit Notes (as such may be amended,
restated, extended, replaced or otherwise modified from time to
time in accordance with the terms thereof, the
“Notes”);
WHEREAS,
the Credit Agreement requires that the Guarantor execute and
deliver to the Lender a guaranty guaranteeing all of the
obligations of the Parent; and
WHEREAS,
Guarantor has determined that the execution, delivery and
performance of this Guaranty directly benefits, and is in the best
interest of, such Guarantor and that the Lender would not have
entered into the Credit Agreement and the other Loan Documents
and/or taken the actions required of it under such documents if the
Guarantor had not executed and delivered this
Guaranty.
NOW,
THEREFORE, in consideration of the premises and the agreements
herein and in order to induce the Lender to perform under the
Credit Agreement, Guarantor hereby agrees with the Lender as
follows:
SECTION 1. Definitions.
Reference is hereby made to the Credit Agreement for a statement of
the terms thereof. All terms used in this Guaranty and the recitals
hereto which are defined in the Credit Agreement, and which are not
otherwise defined herein shall have the same meanings herein as set
forth therein. In addition, the following terms when used in the
Guaranty shall have the meanings set forth
below:
“Bankruptcy
Code” means Chapter 11 of
Title 11 of the United States Code, 11 U.S.C §§ 101 et
seq. (or other applicable bankruptcy, insolvency or similar
laws).
“Business Day” means any day other than Saturday, Sunday
or other day on which commercial banks in New York City are
authorized or required by law to remain closed.
“Lender” shall have the meaning set forth in the
recitals hereto.
“Collateral”
means all certain assets of the
Borrower subject to a security interest pursuant to the Security
Agreement.
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“Credit
Agreement” shall have the
meaning set forth in the recitals hereto.
“Credit
Note(s)” shall have the
meaning set forth in the recitals hereto.
“Governmental
Authority” means any
nation or government, any Federal, state, city, town, municipality,
county, local, foreign or other political subdivision thereof or
thereto and any department, commission, board, bureau,
instrumentality, agency or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers
or functions of or pertaining to government.
“Guaranteed
Obligations” shall have
the meaning set forth in Section 2
of this Guaranty.
“Guarantor” shall have the meaning set forth in the
first paragraph of this Guaranty.
“Indemnified
Party” shall have the
meaning set forth in Section 13(a)
of this Guaranty
“Insolvency
Proceeding” means any
proceeding commenced by or against any Person under any provision
of the Bankruptcy Code or under any other bankruptcy or insolvency
law, assignments for the benefit of creditors, formal or informal
moratoria, compositions, or extensions generally with creditors, or
proceedings seeking reorganization, arrangement, or other similar
relief.
“Obligations” shall have the meaning set forth in
Section 3 of the Security Agreement.
“Other Taxes” shall have the meaning set forth in
Section
12(a)(iv) of this
Guaranty.
“Paid in Full” or
“Payment in Full”
means the indefeasible payment in full, whether by payment of cash
or securities.
“Parent” shall have the meaning set forth in the
recitals hereto.
“Person” means an individual, corporation, limited
liability company, partnership, association, joint-stock company,
trust, unincorporated organization, joint venture or other
enterprise or entity or Governmental Authority.
“Security
Agreement” shall have the
meaning set forth in the Credit Agreement.
“Taxes” shall have the meaning set forth in
Section
12(a) of this
Guaranty.
“Transaction
Party” means the Parent,
and Guarantor, collectively, “Transaction
Parties”.
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SECTION 2. Guaranty.
(a) The
Guarantor, hereby unconditionally and irrevocably, guarantees to
the Lender, the punctual payment, as and when due and payable, by
stated maturity, acceleration or otherwise, of all Obligations
including, without limitation, all interest, and other amounts that
accrue after the commencement of any Insolvency Proceeding of
Borrower or Guarantor, whether or not the payment of such
principal, interest, make-whole, redemption and/or other amounts
are enforceable or are allowable in such Insolvency Proceeding,
interest, premiums, penalties, causes of actions, costs,
commissions, expense reimbursements, indemnifications and all other
amounts due or to become due under the Credit Notes and the other
Loan Documents and (all of the foregoing collectively being the
“Guaranteed
Obligations”), and agrees
to pay any and all costs and expenses (including reasonable and
documented counsel fees and expenses) incurred by the Lender in
enforcing any rights under this Guaranty or any other Loan
Document. Without limiting the generality of the foregoing,
Guarantors’ liability hereunder shall extend to all amounts
that constitute part of the Guaranteed Obligations and would be
owed by Borrower to the Lender under the Credit Agreement, the
Credit Notes and any other Loan Document but for the fact that they
are unenforceable or not allowable due to the existence of an
Insolvency Proceeding involving any Transaction
Party.
(b) Guarantor,
and by its acceptance of this Guaranty, the Lender, hereby confirm
that it is the intention of all such Persons that this Guaranty and
the Guaranteed Obligations of Guarantor hereunder not constitute a
fraudulent transfer or conveyance for purposes of the Bankruptcy
Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar foreign, federal, provincial, state, or
other applicable law to the extent applicable to this Guaranty and
the Guaranteed Obligations of Guarantor hereunder. To effectuate
the foregoing intention, the Lender and the Guarantor hereby
irrevocably agree that the Guaranteed Obligations of Guarantor
under this Guaranty at any time shall be limited to the maximum
amount as will result in the Guaranteed Obligations of such
Guarantor under this Guaranty not constituting a fraudulent
transfer or conveyance.
SECTION 3. Guaranty Absolute;
Continuing Guaranty; Assignments.
(a) The
Guarantor guarantees that the Guaranteed Obligations will be paid
strictly in accordance with the terms of the Credit Note and the
other 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 the Lender with respect thereto. The
obligations of Guarantor under this Guaranty are independent of the
Guaranteed Obligations, and a separate action or actions may be
brought and prosecuted against Guarantor to enforce such
obligations, irrespective of whether any action is brought against
any other Transaction Party or whether any other Transaction Party
is joined in any such action or actions. The liability of Guarantor
under this Guaranty shall be as a primary obligor (and not merely
as a surety) and shall be irrevocable, absolute and unconditional
irrespective of, and Guarantor hereby irrevocably waives, to the
maximum extent permitted by law, any defenses it may now or
hereafter have in any way relating to, any or all of the
following:
(i) any
lack of validity or enforceability of any Credit Note and/or any
other Loan Document;
(ii) 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, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional
credit to any Transaction Party or extension of the maturity of any
Guaranteed Obligations or otherwise;
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(iii) any
taking, exchange, release or non-perfection of any
Collateral;
(iv) any
taking, release or amendment or waiver of or consent to departure
from any other guaranty, for all or any of the Guaranteed
Obligations;
(v) any
change, restructuring or termination of the corporate, limited
liability company or partnership structure or existence of any
Transaction Party;
(vi) 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 other Transaction Party under the
Transaction Documents or any other assets of any other Transaction
Party;
(vii) any
failure of the Lender to disclose to any Transaction Party any
information relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any
other Transaction Party now or hereafter known to the Lender
(Guarantor waiving any duty on the part of the Lender to disclose
such information);
(viii) taking
any action in furtherance of the release of Guarantor or any other
Person that is liable for the Obligations from all or any part of
any liability arising under or in connection with any Loan Document
without the prior written consent of the Lender; or
(ix) any
other circumstance (including, without limitation, any statute of
limitations) or any existence of or reliance on any representation
by the Lender that might otherwise constitute a defense available
to, or a discharge of, any other Transaction Party or any other
guarantor or surety.
(b) 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 the
Lender, and/or any other Person upon the insolvency, bankruptcy or
reorganization of any Transaction Party or otherwise, all as though
such payment had not been made.
(c) This
Guaranty is a continuing guaranty and shall (i) remain in full
force and effect until Payment in Full of the Guaranteed
Obligations and shall not terminate for any reason prior to the
Maturity Date of all outstanding Credit Notes (other than Payment
in Full of the Guaranteed Obligations), and (ii) be binding upon
Guarantor and its respective successors and assigns. This Guaranty
shall inure to the benefit of and be enforceable by the Lender and
his permitted pledgees, transferees and assigns. Without limiting
the generality of the foregoing sentence, the Lender may pledge,
assign or otherwise transfer all or any portion of its rights,
remedies and obligations under and subject to the terms of any Loan
Document to any other Person and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to
the Lender herein or otherwise, in each case as provided in the
Credit Agreement or such other Loan Document.
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SECTION 4. Waivers.
To the extent permitted by applicable law, Guarantor hereby waives
promptness, diligence, protest, notice of acceptance and any other
notice or formality of any kind with respect to any of the
Guaranteed Obligations and this Guaranty and any requirement that
the Lender exhaust any right or take any action against any
Transaction Party or any other Person or any Collateral. Guarantor
acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated herein and that the waiver
set forth in this Section 4
is knowingly made in contemplation of
such benefits. The Guarantor hereby 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. Without limiting the foregoing, to the extent
permitted by applicable law, Guarantor hereby unconditionally and
irrevocably waives (a) any defense arising by reason of any claim
or defense based upon an election of remedies by the Lender that in
any manner impairs, reduces, releases or otherwise adversely
affects the subrogation, reimbursement, exoneration, contribution
or indemnification rights of Guarantor or other rights of Guarantor
to proceed against any of the other Transaction Parties, any other
guarantor or any other Person or any Collateral, and (b) any
defense based on any right of set-off or counterclaim against or in
respect of the Guaranteed Obligations of Guarantor hereunder.
Guarantor hereby unconditionally and irrevocably waives any duty on
the part of the Lender to disclose to Guarantor any matter, fact or
thing relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other
Transaction Party now or hereafter known by the
Lender.
SECTION 5. Subrogation.
Guarantor may not exercise any rights that it may now or hereafter
acquire against any Transaction Party or any other guarantor that
arise from the existence, payment, performance or enforcement of
any Guarantor’s obligations under this Guaranty, including,
without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Lender against any
Transaction Party or any other 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 Transaction Party or any other
guarantor, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security solely on
account of such claim, remedy or right, unless and until there has
been Payment in Full of the Guaranteed Obligations. If any amount
shall be paid to Guarantor in violation of the immediately
preceding sentence at any time prior to Payment in Full of the
Guaranteed Obligations and all other amounts payable under this
Guaranty, such amount shall be held in trust for the benefit of the
Lender and shall forthwith be paid to the Lender to be credited and
applied to the Guaranteed Obligations and all other amounts payable
under this Guaranty, whether matured or un-matured, in accordance
with the terms of the Loan Document, or to be held as Collateral
for any Guaranteed Obligations or other amounts payable under this
Guaranty thereafter arising. If (a) Guarantor shall make payment to
the Lender of all or any part of the Guaranteed Obligations, and
(b) there has been Payment in Full of the Guaranteed Obligations,
the Lender will, at such Guarantors’ request and expense,
execute and deliver to such Guarantor appropriate documents to
evidence payment in Full of the Guaranteed Obligations 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
by such Guarantor.
SECTION 6. Representations,
Warranties and Covenants.
(a) Guarantor
hereby represents and warrants as of the date first written above
as follows:
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(i) Guarantor
(A) is a corporation, duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization as
set forth on the signature page hereto, (B) has all requisite
corporate, limited liability company or limited partnership power
and authority to conduct its business as now conducted and as
presently contemplated and to execute, deliver and perform its
obligations under this Guaranty and each other Loan Document to
which Guarantor is a party, and to consummate the transactions
contemplated hereby and thereby and (C) is duly qualified to do
business and is in good standing in each jurisdiction in which the
character of the properties owned or leased by it or in which the
transaction of its business makes such qualification necessary
except where the failure to be so qualified (individually or in the
aggregate) would not result in a Material Adverse
Effect.
(ii) The
execution, delivery and performance by Guarantor of this Guaranty
and each other Transaction Document to which Guarantor is a party
(A) has been duly authorized by all necessary corporate, limited
liability company or limited partnership action, (B) does not and
will not contravene its charter, articles, certificate of formation
or by-laws, its limited liability company or operating agreement or
its certificate of partnership or partnership agreement, as
applicable, or any applicable law or any contractual restriction
binding on Guarantor or its properties do not and will not result
in or require the creation of any lien, security interest or
encumbrance (other than pursuant to any Loan Document) upon or with
respect to any of its properties, and (C) does not and will not
result in any default, noncompliance, suspension, revocation,
impairment, forfeiture or nonrenewal of any material permit,
license, authorization or approval applicable to it or its
operations or any of its properties.
(iii) No
authorization or approval or other action by, and no notice to or
filing with, any Governmental Authority or other Person is required
in connection with the due execution, delivery and performance by
Guarantor of this Guaranty or any of the other Loan Documents to
which such Guarantor is a party (other than expressly provided for
in any of the Loan Documents).
(iv) This
Guaranty has been duly executed and delivered by Guarantor and is,
and each of the other Loan Documents to which Guarantor is or will
be a party, when executed and delivered, will be, a legal, valid
and binding obligation of Guarantor, enforceable against Guarantor
in accordance with its terms, except as may be limited by the
Bankruptcy Code or other applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, suretyship or
similar laws and equitable principles (regardless of whether
enforcement is sought in equity or at law).
(v) There
is no pending or, to the knowledge of Guarantor, threatened action,
suit or proceeding against Guarantor or to which any of the
properties of Guarantor is subject, before any court or other
Governmental Authority or any arbitrator that (A) if adversely
determined, could reasonably be expected to have a Material Adverse
Effect or (B) relates to this Guaranty or any of the other Loan
Documents to which Guarantor is a party or any transaction
contemplated hereby or thereby.
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(vi) Guarantor
(A) has read and understands the terms and conditions of the Credit
Agreement and the other Loan Documents, and (B) now has and will
continue to have independent means of obtaining information
concerning the affairs, financial condition and business of the
Parent, and has no need of, or right to obtain from the Lender, any
credit or other information concerning the affairs, financial
condition or business of the Parent.
(vii) There
are no conditions precedent to the effectiveness of this Guaranty
that have not been satisfied or waived.
(b) Guarantor
covenants and agrees that until Payment in Full of the Guaranteed
Obligations, it will comply with each of the covenants which are
set forth in the Credit Agreement as if Guarantor were a party
thereto.
SECTION 7. Right of
Set-off. Upon the occurrence
and during the continuance of any Event of Default, the Lender may,
and is hereby authorized to, at any time and from time to time,
without notice to the Guarantor (any such notice being expressly
waived by Guarantor) and to the fullest extent permitted by law,
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 the Lender to or for the credit
or the account of Guarantor against any and all obligations of the
Guarantor now or hereafter existing under this Guaranty or any
other Loan Document, irrespective of whether or not the Lender
shall have made any demand under this Guaranty or any other Loan
Document and although such obligations may be contingent or
unmatured. The Lender agrees to notify the Guarantor promptly after
any such set-off and application made by the Lender, provided that
the failure to give such notice shall not affect the validity of
such set-off and application. The rights of the Lender under
this Section 7
are in addition to other rights and
remedies (including, without limitation, other rights of set-off)
which the Lender may have under this Guaranty or any other Loan
Document in law or otherwise.
SECTION 8. Limitation on
Guaranteed Obligations.
(a) Notwithstanding
any provision herein contained to the contrary, Guarantors’
liability hereunder shall be limited to an amount not to exceed as
of any date of determination the greater of:
(i) the
amount of all Guaranteed Obligations, plus interest thereon at the
applicable interest rate as specified in the Credit Notes;
and
(ii) the
amount which could be claimed by the Lender from Guarantor under
this Guaranty without rendering such claim voidable or avoidable
under the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or
similar statute or common law after taking into account, among
other things, Guarantors’ right of contribution and
indemnification.
(b) Guarantor
agrees that the Guaranteed Obligations may at any time and from
time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guaranty hereunder or affecting the
rights and remedies of the Lender hereunder or under applicable
law.
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(c) No
payment made by Borrower, Guarantor, any other guarantor or any
other Person or received or collected by the Lender from Borrower,
Guarantor, any other guarantor or any other Person by virtue of any
action or proceeding or any set-off or appropriation or application
at any time or from time to time in reduction of or in payment of
the Guaranteed Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of Guarantor hereunder
which shall, notwithstanding any such payment (other than any
payment made by Guarantor in respect of the Guaranteed Obligations
or any payment received or collected from Guarantor in respect of
the Guaranteed Obligations), remain liable for the Guaranteed
Obligations up to the maximum liability of such Guarantor hereunder
until after all of the Guaranteed Obligations and all other amounts
payable under this Guaranty shall have been Paid in
Full.
SECTION 9. Notices,
Etc. Any notices, consents,
waivers or other communications required or permitted to be given
under the terms of this Guaranty must be in writing and will be
deemed to have been delivered: (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile or email
(provided confirmation of transmission is mechanically or
electronically generated or, in the case of email with a read
receipt generated and kept on file by the sending party); or (iii)
one (1) Business Day after deposit with a nationally recognized
overnight courier service with next day delivery specified, in each
case, properly addressed to the party to receive the same. All
notices and other communications provided for hereunder shall be
sent, if to Guarantor, to the Parent’s address and/or
facsimile number, or if to the Lender, to it at its respective
address and/or facsimile number, each as set forth in the Credit
Agreement.
SECTION 10. Governing Law;
Jurisdiction. All questions
concerning the construction, validity, enforcement and
interpretation of this Guaranty shall be governed by the internal
laws of the State of Delaware, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State
of Delaware or any other jurisdictions) that would cause the
application of the laws of any jurisdictions other than the State
of Delaware. Guarantor hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in Kent
County, Delaware, for the adjudication of any dispute hereunder or
in connection herewith or under any of the other Loan Documents or
with any transaction contemplated hereby or thereby, and hereby
irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim, obligation or defense that it is not
personally subject to the jurisdiction of any such court, that such
suit, action or proceeding is brought in an inconvenient forum or
that the venue of such suit, action or proceeding is improper. Each
party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address
for such notices to it under the Credit Agreement and agrees that
such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any manner
permitted by law. Nothing contained herein shall be deemed or
operate to preclude the Lender from bringing suit or taking other
legal action against Guarantor in any other jurisdiction to collect
on Guarantors’ obligations or to enforce a judgment or other
court ruling in favor of the Lender.
SECTION 11. WAIVER OF JURY TRIAL,
ETC. GUARANTOR HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR UNDER ANY OTHER TRANSACTION DOCUMENT OR IN CONNECTION WITH OR
ARISING OUT OF THIS GUARANTY, ANY OTHER TRANSACTION DOCUMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY OR THEREBY.
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SECTION 12. Taxes.
(a) All
payments made by Guarantor hereunder or under any other Loan
Document shall be made in accordance with the terms of the
respective Loan Document and shall be made without set-off,
counterclaim, withholding, deduction or other defense. Without
limiting the foregoing, all such payments shall be made free and
clear of and without deduction or withholding for any present or
future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding
taxes imposed on the net income of the
Lender by the jurisdiction in which the Lender is organized or
where it has its principal lending office (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and
liabilities, collectively or individually,
“Taxes”). If Guarantor shall be required to deduct
or to withhold any Taxes from or in respect of any amount payable
hereunder or under any other Loan Document:
(i) the
amount so payable shall be increased to the extent necessary so
that after making all required deductions and withholdings
(including Taxes on amounts payable to the Lender pursuant to this
sentence) the Lender receives an amount equal to the sum it would
have received had no such deduction or withholding been
made,
(ii) Guarantor
shall make such deduction or withholding,
(iii) Guarantor
shall pay the full amount deducted or withheld to the relevant
Governmental Authority in accordance with applicable law,
and
(iv) as
promptly as possible thereafter, Guarantor shall send the Lender an
official receipt (or, if an official receipt is not available, such
other documentation as shall be satisfactory to the Lender, as the
case may be) showing payment. In addition, Guarantor agrees to pay
any present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies that arise from
any payment made hereunder or from the execution, delivery,
registration or enforcement of, or otherwise with respect to, this
Guaranty or any other Transaction Document (collectively,
“Other
Taxes”).
SECTION 13. Miscellaneous.
(a) Guarantor
will make each payment hereunder in lawful money of the United
States of America and in immediately available funds to the Lender,
at such address specified by the Lender from time to time by notice
to the Guarantor.
(b) No
amendment or waiver of any provision of this Guaranty and no
consent to any departure by Guarantor therefrom shall in any event
be effective unless the same shall be in writing and signed by
Guarantor, the Lender, and then such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given.
(c) No
failure on the part of the Lender to exercise, and no delay in
exercising, any right or remedy hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any right hereunder or under any Loan Document
preclude any other or further exercise thereof or the exercise of
any other right or remedy. The rights and remedies of the Lender
provided herein and in the other Loan Documents are cumulative and
are in addition to, and not exclusive of, any rights or remedies
provided by law. The rights and remedies of the Lender under any
Loan Document against any party thereto are not conditional or
contingent on any attempt by the Lender to exercise any of their
respective rights or remedies under any other Loan Document against
such party or against any other Person.
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(d) If
any provision of this Guaranty or any Loan Document is prohibited
by law or otherwise determined to be invalid or unenforceable by a
court of competent jurisdiction, the provision that would otherwise
be prohibited, invalid or unenforceable shall be deemed amended to
apply to the broadest extent that it would be valid and
enforceable, and the invalidity or unenforceability of such
provision shall not affect the validity of the remaining provisions
of this Guaranty so long as this Guaranty as so modified continues
to express, without material change, the original intentions of the
parties as to the subject matter hereof and the prohibited nature,
invalidity or unenforceability of the provision(s) in question does
not substantially impair the respective expectations or reciprocal
obligations of the parties or the practical realization of the
benefits that would otherwise be conferred upon the parties.
The parties will endeavor in good faith negotiations to
replace the prohibited, invalid or unenforceable provision(s) with
a valid provision(s), the effect of which comes as close as
possible to that of the prohibited, invalid or unenforceable
provision(s).
(e) This
Guaranty is a continuing guaranty and shall (i) remain in full
force and effect until Payment in Full of the Guaranteed
Obligations (other than inchoate indemnity obligations) and shall
not terminate for any reason prior to the respective Maturity Date
of the Credit Notes (other than Payment in Full of the Guaranteed
Obligations) and (ii) be binding upon each Guarantor and its
respective successors and assigns. This Guaranty shall inure,
together with all rights and remedies of the Lender hereunder and
his permitted pledgees, transferees and assigns. Without limiting
the generality of the foregoing sentence, the Lender may pledge,
assign or otherwise transfer all or any portion of its rights and
obligations under and subject to the terms of the Credit Agreement
or any other Loan Document to any other Person in accordance with
the terms thereof, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to the
Lender (as applicable) herein or otherwise, in each case as
provided in the Credit Agreement or such Loan Document. None of the
rights or obligations of Guarantor hereunder may be assigned or
otherwise transferred without the prior written consent of the
Lender.
(f) This
Guaranty and the other Transaction Documents reflect the entire
understanding of the transaction contemplated hereby and shall not
be contradicted or qualified by any other agreement, oral or
written, entered into before the date hereof.
(g) The
headings of this Guaranty are for convenience of reference and
shall not form part of, or affect the interpretation of, this
Guaranty. Unless the context clearly indicates otherwise,
each pronoun herein shall be deemed to include the masculine,
feminine, neuter, singular and plural forms thereof. The
terms “including,” “includes,”
“include” and words of like import shall be construed
broadly as if followed by the words “without
limitation.” The terms “herein,”
“hereunder,” “hereof” and words of like
import refer to this entire Agreement instead of just the provision
in which they are found.
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SECTION 14. Currency
Indemnity.
If, for the purpose of obtaining or enforcing
judgment against Guarantor in any court in any jurisdiction, it
becomes necessary to convert into any other currency (such other
currency being hereinafter in this Section 14
referred to as the
“Judgment
Currency”) an amount due
under this Guaranty in any currency (the “Obligation
Currency”) other than the
Judgment Currency, the conversion shall be made at the rate of
exchange prevailing on the Business Day immediately preceding (a)
the date of actual payment of the amount due, in the case of any
proceeding in the courts of courts of the jurisdiction that will
give effect to such conversion being made on such date, or (b) the
date on which the judgment is given, in the case of any proceeding
in the courts of any other jurisdiction (the applicable date as of
which such conversion is made pursuant to this Section 14
being hereinafter in this
Section
14 referred to as the
“Judgment Conversion
Date”).
If, in the case of any proceeding in the court of
any jurisdiction referred to in the preceding paragraph, there is a
change in the rate of exchange prevailing between the Judgment
Conversion Date and the date of actual receipt of the amount due in
immediately available funds, the Guarantor shall pay such
additional amount (if any, but in any event not a lesser amount) as
may be necessary to ensure that the amount actually received in the
Judgment Currency, when converted at the rate of exchange
prevailing on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the amount
of’ the Judgment Currency stipulated in the judgment or
judicial order at the rate of exchange prevailing on the Judgment
Conversion Date. Any amount due from the Guarantor under
this Section 14
shall be due as a separate debt and
shall not be affected by judgment being obtained for any other
amounts due under or in respect of this
Guaranty.
IN
WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
executed by its duly authorized officer, as of the date first above
written.
GUARANTOR
XXXXX
FAMILY PLANTATION GROUP S.A.
By: /s/
Xxxx
Xxxxxxx
Name:
Xxxx Xxxxxxx
Title:
Manager
ACCEPTED
BY:
/s/ Xxxx
Xxxxxx
Xxxx
Xxxxxx
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