ex102nelnetarguaranty







EXECUTION VERSION   ACTIVE 210385139v.4   AMENDED AND RESTATED GUARANTY   THIS AMENDED AND RESTATED GUARANTY (as the same may be amended,   restated, supplemented or otherwise modified from time to time, this “Guaranty”) is made as of   October 30, 2015 by and among each of the Subsidiaries of Nelnet, Inc. (the “Borrower”) listed   on the signature pages hereto (each an “Initial Guarantor”) and those additional Subsidiaries of   the Borrower which become parties to this Guaranty by executing a supplement hereto (a   “Guaranty Supplement”) in the form attached hereto as Annex I (such additional Subsidiaries,   together with the Initial Guarantors, the “Guarantors”), in favor of U.S. Bank National   Association, as Administrative Agent (the “Administrative Agent”), for the benefit of the   Lenders under the Credit Agreement described below.  Unless otherwise defined herein,   capitalized terms used herein and not defined herein shall have the meanings ascribed to such   terms in the Credit Agreement.   W I T N E S S E T H :   WHEREAS, the Borrower, the financial institutions from time to time party thereto as   lenders (the “Existing Lenders”), and the Administrative Agent have entered into that certain   Credit Agreement, dated as of February 17, 2012 (as the same may have been amended, restated,   supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”),   which Existing Credit Agreement provides, subject to the terms and conditions thereof, for   extensions of credit and other financial accommodations to be made by the Existing Lender to or   for the benefit of the Borrower;   WHEREAS, the Initial Guarantors have previously entered into that certain Guaranty,   dated as of February 17, 2012 (as the same may have been amended, restated, supplemented or   otherwise modified prior to the date hereof, the “Existing Guaranty”), in favor of the Existing   Lenders and the Administrative Agent with respect to the obligations of the Borrower under the   Existing Credit Agreement;   WHEREAS, the Existing Credit Agreement is being amended and restated in its entirety   pursuant to the Amended and Restated Credit Agreement (as the same may be amended, restated,   supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among   the Borrower, the financial institutions party thereto (the “Lenders”) and the Administrative   Agent, which Credit Agreement provides, subject to the terms and conditions thereof, for   extensions of credit and other financial accommodations to be made by the Lenders to or for the   benefit of the Borrower;   WHEREAS, it is a condition precedent to the extensions of credit by the Lenders under   the Credit Agreement that each of the Guarantors (constituting all of the Subsidiaries of the   Borrower required to execute this Guaranty pursuant to Section 4.01 of the Credit Agreement)   execute and deliver this Guaranty, whereby each of the Guarantors, without limitation and with   full recourse, shall guarantee the payment when due of all indebtedness and obligations of the   Borrower under and pursuant to the Credit Agreement (the “Obligations”), including, without   limitation, all principal, interest, and other amounts that shall be at any time payable by the   Borrower under the Credit Agreement or the other Loan Documents; and     





 







   2   WHEREAS, in consideration of the direct and indirect financial and other support and   benefits that the Borrower has provided, and such direct and indirect financial and other support   and benefits as the Borrower may in the future provide, to the Guarantors, and in consideration   of the increased ability of each Guarantor that is a Subsidiary of the Borrower to receive funds   through contributions to capital, and for each Guarantor to receive funds through intercompany   advances or otherwise, from funds provided to the Borrower pursuant to the Credit Agreement   and the flexibility provided by the Credit Agreement for each Guarantor to do so which   significantly facilitates the business operations of the Borrower and each Guarantor and in order   to induce the Lenders and the Administrative Agent to enter into the Credit Agreement, and to   make the Loans and the other financial accommodations to the Borrower described in the Credit   Agreement, each of the Guarantors is willing to guarantee the Obligations under the Credit   Agreement and the other Loan Documents;   NOW, THEREFORE, in consideration of the foregoing premises and other good and   valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties   hereto hereby agree that the Existing Guaranty is amended and restated in its entirety as follows:   SECTION 1. Representations, Warranties and Covenants.  Each of the Guarantors   represents and warrants to each Lender and the Administrative Agent as of the date of this   Guaranty, giving effect to the consummation of the transactions contemplated by the Loan   Documents on the Effective Date that:   (a) It (i) is a corporation, partnership or limited liability company duly incorporated   or organized, as the case may be, validly existing and in good standing under the laws of its   jurisdiction of incorporation or organization, (ii) is duly qualified to do business as a foreign   entity and is in good standing (to the extent such concept is applicable) under the laws of each   jurisdiction where the business conducted by it makes such qualification necessary, and (iii) has   all requisite corporate, partnership or limited liability company power and authority, as the case   may be, to own, operate and encumber its property and to conduct its business in each   jurisdiction in which its business is conducted or proposed to be conducted, except to the extent   that the failure to have such authority could not reasonably be expected to result in a Material   Adverse Effect.   (b) It has the requisite corporate, limited liability company or partnership, as   applicable, power and authority and legal right to execute and deliver this Guaranty and to   perform its obligations hereunder.  The execution and delivery by it of this Guaranty and the   performance of its obligations hereunder have been duly authorized by proper corporate, limited   liability company or partnership proceedings, including any required shareholder, member or   partner approval, and this Guaranty constitutes a legal, valid and binding obligation of such   Guarantor, enforceable against such Guarantor, in accordance with its terms, except as   enforceability may be limited by bankruptcy, insolvency, or similar laws affecting the   enforcement of creditors’ rights generally.   (c) Neither the execution and delivery by it of this Guaranty, nor the consummation   by it of the transactions herein contemplated, nor compliance by it with the terms and provisions   hereof, will (i) conflict with the charter or other organizational documents of such Guarantor, (ii)   conflict with, result in a breach of or constitute (with or without notice or lapse of time or both) a        





 







   3   default under any law, rule, regulation, order, writ, judgment, injunction, decree or award   (including, without limitation, any environmental property transfer laws or regulations)   applicable to such Guarantor or any provisions of any indenture, instrument or agreement to   which the Borrower or any of the Borrower’s Subsidiaries is party or is subject or by which it or   its property is bound or affected, or require termination of any such indenture, instrument or   agreement, (iii) result in the creation or imposition of any Lien whatsoever upon any of the   property or assets of such Guarantor, other than Liens permitted or created by the Loan   Documents, or (iv) require any approval of such Guarantor’s board of directors, shareholders,   members, partners or unitholders except such as have been obtained.  The execution, delivery   and performance by such Guarantor of each of the Loan Documents to which such Guarantor is a   party do not and will not require any registration with, consent or approval of, or notice to, or   other action to, with or by any Governmental Authority, except filings, consents or notices which   have been made.       In addition to the foregoing, each of the Guarantors covenants that, so long as any Lender   has any Commitment outstanding under the Credit Agreement or any amount payable under the   Credit Agreement or any other Obligations shall remain unpaid, it will, and, if necessary, will   cause the Borrower to, fully comply with those covenants and agreements of the Borrower   applicable to such Guarantor set forth in the Credit Agreement.   SECTION 2. The Guaranty.  Each of the Guarantors hereby irrevocably and   unconditionally guarantees, jointly and severally with the other Guarantors, the full and punctual   payment and performance when due (whether at stated maturity, upon acceleration or otherwise)   of the Obligations, including, without limitation, (i) the principal of and interest on each Loan   made to the Borrower pursuant to the Credit Agreement, (ii) all other amounts payable by the   Borrower under the Credit Agreement and the other Loan Documents, and (iii) the punctual and   faithful performance, keeping, observance, and fulfillment by the Borrower of all of the   agreements, conditions, covenants, and obligations of the Borrower contained in the Loan   Documents (all of the foregoing being referred to collectively as the “Guaranteed Obligations”).    Upon the failure by the Borrower, or any of its Affiliates, as applicable, to pay punctually any   such amount or perform such obligation, subject to any applicable grace or notice and cure   period, each of the Guarantors agrees that it shall forthwith on demand pay such amount or   perform such obligation at the place and in the manner specified in the Credit Agreement or the   relevant other Loan Document, as the case may be.  Each of the Guarantors hereby agrees that   this Guaranty is an absolute, irrevocable and unconditional guaranty of payment and is not a   guaranty of collection.  Notwithstanding any other provision of this Guaranty, the amount   guaranteed by each Guarantor hereunder shall be limited to the extent, if any, required so that its   obligations hereunder shall not be subject to avoidance under Section 548 of the Bankruptcy   Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent   Conveyance Act or similar statute or common law.  In determining the limitations, if any, on the   amount of any Guarantor’s obligations hereunder pursuant to the preceding sentence, it is the   intention of the parties hereto that any rights of subrogation, indemnification or contribution   which such Guarantor may have under this Guaranty, any other agreement or applicable law   shall be taken into account.     





 







   4   SECTION 3. Guaranty Unconditional.  The obligations of each of the Guarantors   hereunder shall be unconditional and absolute and, without limiting the generality of the   foregoing, shall not be released, discharged or otherwise affected by:   (i) any extension, renewal, settlement, indulgence, compromise, waiver or   release of or with respect to the Guaranteed Obligations or any part thereof or any   agreement relating thereto, or with respect to any obligation of any other guarantor of any   of the Guaranteed Obligations, whether (in any such case) by operation of law or   otherwise, or any failure or omission to enforce any right, power or remedy with respect   to the Guaranteed Obligations or any part thereof or any agreement relating thereto, or   with respect to any obligation of any other guarantor of any of the Guaranteed   Obligations;   (ii) any modification or amendment of or supplement to the Credit   Agreement, or any other Loan Document, including, without limitation, any such   amendment which may increase the amount of, or the interest rates applicable to, any of   the Guaranteed Obligations guaranteed hereby;   (iii) any release, surrender, compromise, settlement, waiver, subordination or   modification, with or without consideration, of any collateral securing the Guaranteed   Obligations or any part thereof, any other guaranties with respect to the Guaranteed   Obligations or any part thereof, or any other obligation of any person or entity with   respect to the Guaranteed Obligations or any part thereof, or any nonperfection or   invalidity of any direct or indirect security for the Guaranteed Obligations;   (iv) any change in the corporate, partnership, limited liability company or   other existence, structure or ownership of the Borrower or any other guarantor of any of   the Guaranteed Obligations, or any insolvency, bankruptcy, reorganization or other   similar proceeding affecting the Borrower or any other guarantor of the Guaranteed   Obligations, or any of their respective assets or any resulting release or discharge of any   obligation of the Borrower or any other guarantor of any of the Guaranteed Obligations;   (v) the existence of any claim, setoff or other rights which the Guarantors may   have at any time against the Borrower, any other guarantor of any of the Guaranteed   Obligations, the Administrative Agent, any Lender or any other Person, whether in   connection herewith or in connection with any unrelated transactions, provided that   nothing herein shall prevent the assertion of any such claim by separate suit or   compulsory counterclaim;   (vi) the enforceability or validity of the Guaranteed Obligations or any part   thereof or the genuineness, enforceability or validity of any agreement relating thereto or   with respect to any collateral securing the Guaranteed Obligations or any part thereof, or   any other invalidity or unenforceability relating to or against the Borrower or any other   guarantor of any of the Guaranteed Obligations, for any reason related to the Credit   Agreement, or any other Loan Document, or any provision of applicable law, decree,   order or regulation purporting to prohibit the payment by the Borrower or any other     





 







   5   guarantor of the Guaranteed Obligations, of any of the Guaranteed Obligations or   otherwise affecting any term of any of the Guaranteed Obligations;   (vii) the failure of the Administrative Agent to take any steps to perfect and   maintain any security interest in, or to preserve any rights to, any security or collateral for   the Guaranteed Obligations, if any;   (viii) the election by, or on behalf of, any one or more of the Lenders, in any   proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C.   101 et seq.) (or any successor statute, the “Bankruptcy Code”), of the application of   Section 1111(b)(2) of the Bankruptcy Code;   (ix) any borrowing or grant of a security interest by the Borrower, as debtor-   in-possession, under Section 364 of the Bankruptcy Code;   (x) the disallowance, under Section 502 of the Bankruptcy Code, of all or any   portion of the claims of the Lenders or the Administrative Agent for repayment of all or   any part of the Guaranteed Obligations;   (xi) the failure of any other guarantor to sign or become party to this Guaranty   or any amendment, change, or reaffirmation hereof; or   (xii) any other act or omission to act or delay of any kind by the Borrower, any   other guarantor of the Guaranteed Obligations, the Administrative Agent, any Lender or   any other Person or any other circumstance whatsoever which might, but for the   provisions of this Section 3, constitute a legal or equitable discharge of any Guarantor’s   obligations hereunder or otherwise reduce, release, prejudice or extinguish its liability   under this Guaranty.   SECTION 4. Discharge Only Upon Payment In Full; Reinstatement In Certain   Circumstances.  Each of the Guarantors’ obligations hereunder shall remain in full force and   effect until all Guaranteed Obligations shall have been paid in full in cash and the Commitments   shall have terminated or expired, at which time, subject to all the foregoing conditions, the   guarantees made hereunder shall automatically terminate.   If at any time any payment of the   principal of or interest on any Loan, Obligation or any other amount payable by the Borrower or   any other party under the Credit Agreement, or any other Loan Document is rescinded or must   be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the   Borrower or otherwise, each of the Guarantors’ obligations hereunder with respect to such   payment shall be reinstated as though such payment had been due but not made at such time.       





 







   6   SECTION 5. General Waivers; Additional Waivers.     (a) General Waivers.  Each of the Guarantors irrevocably waives acceptance hereof,   presentment, demand or action on delinquency, protest and, to the fullest extent permitted by   law, any notice not provided for herein or under the other Loan Documents, as well as any   requirement that at any time any action be taken by any Person against the Borrower, any other   guarantor of the Guaranteed Obligations, or any other Person.   (b) Additional Waivers.  Notwithstanding anything herein to the contrary, each of the   Guarantors hereby absolutely, unconditionally, knowingly, and expressly waives, to the fullest   extent permitted by law:   (i) any right it may have to revoke this Guaranty as to future indebtedness or   notice of acceptance hereof;   (ii) (1) notice of acceptance hereof; (2) notice of any Loans or other financial   accommodations made or extended under the Loan Documents or the creation or   existence of any Guaranteed Obligations; (3) notice of the amount of the Guaranteed   Obligations, subject, however, to each Guarantor’s right to make inquiry of the   Administrative Agent and the Lenders to ascertain the amount of the Guaranteed   Obligations at any reasonable time; (4) notice of any adverse change in the financial   condition of the Borrower or of any other fact that might increase such Guarantor’s risk   hereunder; (5) notice of presentment for payment, demand, protest, and notice thereof as   to any instruments among the Loan Documents; (6) notice of any Default or Event of   Default; and (7) all other notices (except if such notice is specifically required to be given   to such Guarantor hereunder or under the Loan Documents) and demands to which each   Guarantor might otherwise be entitled;   (iii) its right, if any, to require the Administrative Agent and the other Lenders   to institute suit against, or to exhaust any rights and remedies which the Administrative   Agent and the other Lenders has or may have against, the other Guarantors or any third   party, provided by the other Guarantors, or any third party; and each Guarantor further   waives any defense arising by reason of any disability or other defense (other than the   defense that the Guaranteed Obligations shall have been fully and finally performed and   indefeasibly paid in full in cash) of the other Guarantors or by reason of the cessation   from any cause whatsoever of the liability of the other Guarantors in respect thereof;    (iv) (a) any rights to assert against the Administrative Agent and the other   Lenders defense (legal or equitable), set-off, counterclaim, or claim which such   Guarantor may now or at any time hereafter have against the other Guarantors or any   other party liable to the Administrative Agent and the other Lenders; (b) any defense, set-   off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the   present or future lack of perfection, sufficiency, validity, or enforceability of the   Guaranteed Obligations or any security therefor; and (c) any defense such Guarantor has   to performance hereunder, and any right such Guarantor has to be exonerated, arising by   reason of:  (1) the impairment or suspension of the Administrative Agent’s and the other   Lenders’ rights or remedies against the other guarantor of the Guaranteed Obligations; (2)     





 







   7   the alteration by the Administrative Agent and the other Lenders of the Guaranteed   Obligations; (3) any discharge of the other Guarantors’ obligations to the Administrative   Agent and the other Lenders by operation of law as a result of the Administrative Agent’s   and the other Lenders’ intervention or omission; or (4) the acceptance by the   Administrative Agent and the other Lenders of anything in partial satisfaction of the   Guaranteed Obligations; and   (v) any defense arising by reason of or deriving from (a) any claim or defense   based upon an election of remedies by the Administrative Agent and the Lenders; or (b)   any election by the Administrative Agent and the other Lenders under the Bankruptcy   Code, to limit the amount of, or any collateral securing, its claim against the Guarantors.   SECTION 6. Subordination of Subrogation; Subordination of Intercompany   Indebtedness.   (a) Subordination of Subrogation.  Until the Guaranteed Obligations have been fully   and finally performed and indefeasibly paid in full in cash, the Guarantors (i) shall have no right   of subrogation with respect to such Guaranteed Obligations and (ii) waive any right to enforce   any remedy which any of the Lenders or the Administrative Agent now have or may hereafter   have against the Borrower, any endorser or any guarantor of all or any part of the Guaranteed   Obligations or any other Person, and until such time the Guarantors waive any benefit of, and   any right to participate in, any security or collateral given to the Lenders and the Administrative   Agent to secure the payment or performance of all or any part of the Guaranteed Obligations or   any other liability of the Borrower to the Lenders or the Administrative Agent.  Should any   Guarantor have the right, notwithstanding the foregoing, to exercise its subrogation rights, each   Guarantor hereby expressly and irrevocably (A) subordinates any and all rights at law or in   equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off that   such Guarantor may have to the payment in full in cash of the Guaranteed Obligations until the   Guaranteed Obligations are indefeasibly paid in full in cash and (B) waives any and all defenses   available to a surety, guarantor or accommodation co-obligor until the Guaranteed Obligations   are indefeasibly paid in full in cash.  Each Guarantor acknowledges and agrees that this   subordination is intended to benefit the Administrative Agent and the Lenders and shall not limit   or otherwise affect such Guarantor’s liability hereunder or the enforceability of this Guaranty,   and that the Administrative Agent, the Lenders and their respective successors and assigns are   intended third party beneficiaries of the waivers and agreements set forth in this Section 6(a).   (b) Subordination of Intercompany Indebtedness.  Each Guarantor agrees that any   and all claims of such Guarantor against the Borrower or any other Guarantor hereunder (each an   “Obligor”) with respect to any “Intercompany Indebtedness” (as hereinafter defined), any   endorser, obligor or any other guarantor of all or any part of the Guaranteed Obligations, or   against any of its properties shall be subordinate and subject in right of payment to the prior   payment, in full and in cash, of all Guaranteed Obligations; provided that, as long as no Event of   Default has occurred and is continuing, such Guarantor may receive payments of principal and   interest from any Obligor with respect to Intercompany Indebtedness.  Notwithstanding any right   of any Guarantor to ask, demand, sue for, take or receive any payment from any Obligor, all   rights, liens and security interests of such Guarantor, whether now or hereafter arising and   howsoever existing, in any assets of any other Obligor shall be and are subordinated to the rights     





 







   8   of the Lenders and the Administrative Agent in those assets. No Guarantor shall have any right   to possession of any such asset or to foreclose upon any such asset, whether by judicial action or   otherwise, unless and until all of the Guaranteed Obligations shall have been fully paid and   satisfied (in cash) and all financing arrangements pursuant to any Loan Document have been   terminated.  If all or any part of the assets of any Obligor, or the proceeds thereof, are subject to   any distribution, division or application to the creditors of such Obligor, whether partial or   complete, voluntary or involuntary, and whether by reason of liquidation, bankruptcy,   arrangement, receivership, assignment for the benefit of creditors or any other action or   proceeding, or if the business of any such Obligor is dissolved or if substantially all of the assets   of any such Obligor are sold, then, and in any such event (such events being herein referred to as   an “Insolvency Event”), any payment or distribution of any kind or character, either in cash,   securities or other property, which shall be payable or deliverable upon or with respect to any   indebtedness of any Obligor to any Guarantor (“Intercompany Indebtedness”) shall be paid or   delivered directly to the Administrative Agent for application on any of the Guaranteed   Obligations, due or to become due, until such Guaranteed Obligations shall have first been fully   paid and satisfied (in cash).  Should any payment, distribution, security or instrument or proceeds   thereof be received by the applicable Guarantor upon or with respect to the Intercompany   Indebtedness after any Insolvency Event and prior to the satisfaction of all of the Guaranteed   Obligations and the termination of all financing arrangements pursuant to any Loan Document   among the Borrower and the Lenders, such Guarantor shall receive and hold the same in trust, as   trustee, for the benefit of the Lenders and shall forthwith deliver the same to the Administrative   Agent, for the benefit of the Lenders, in precisely the form received (except for the endorsement   or assignment of the Guarantor where necessary), for application to any of the Guaranteed   Obligations, due or not due, and, until so delivered, the same shall be held in trust by the   Guarantor as the property of the Lenders.  If any such Guarantor fails to make any such   endorsement or assignment to the Administrative Agent, the Administrative Agent or any of its   officers or employees is irrevocably authorized to make the same.  Each Guarantor agrees that   until the Guaranteed Obligations have been paid in full (in cash) and satisfied and all financing   arrangements pursuant to any Loan Document among the Borrower and the Lenders have been   terminated, no Guarantor will assign or transfer to any Person (other than the Administrative   Agent) any claim any such Guarantor has or may have against any Obligor.   SECTION 7. Contribution with Respect to Guaranteed Obligations.   (a) To the extent that any Guarantor shall make a payment under this Guaranty (a   “Guarantor Payment”) which, taking into account all other Guarantor Payments then previously   or concurrently made by any other Guarantor, exceeds the amount which otherwise would have   been paid by or attributable to such Guarantor if each Guarantor had paid the aggregate   Guaranteed Obligations satisfied by such Guarantor Payment in the same proportion as such   Guarantor’s “Allocable Amount” (as defined below) (as determined immediately prior to such   Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Guarantors as   determined immediately prior to the making of such Guarantor Payment, then, following   indefeasible payment in full in cash of the Guarantor Payment and the Guaranteed Obligations,   and all Commitments have terminated or expired, such Guarantor shall be entitled to receive   contribution and indemnification payments from, and be reimbursed by, each other Guarantor for   the amount of such excess, pro rata based upon their respective Allocable Amounts in effect   immediately prior to such Guarantor Payment.     





 







   9   (b) As of any date of determination, the “Allocable Amount” of any Guarantor shall   be equal to the excess of the fair saleable value of the property of such Guarantor over the total   liabilities of such Guarantor (including the maximum amount reasonably expected to become   due in respect of contingent liabilities, calculated, without duplication, assuming each other   Guarantor that is also liable for such contingent liability pays its ratable share thereof), giving   effect to all payments made by other Guarantors as of such date in a manner to maximize the   amount of such contributions.   (c) This Section 7 is intended only to define the relative rights of the Guarantors, and   nothing set forth in this Section 7 is intended to or shall impair the obligations of the Guarantors,   jointly and severally, to pay any amounts as and when the same shall become due and payable in   accordance with the terms of this Guaranty.   (d) The parties hereto acknowledge that the rights of contribution and indemnification   hereunder shall constitute assets of the Guarantor or Guarantors to which such contribution and   indemnification is owing.   (e) The rights of the indemnifying Guarantors against other Guarantors under this   Section 7 shall be exercisable upon the full and indefeasible payment of the Guaranteed   Obligations in cash and the termination or expiry, on terms reasonably acceptable to the   Administrative Agent, of the Commitments and the termination of the Credit Agreement.   SECTION 8. Stay of Acceleration.  If acceleration of the time for payment of any   amount payable by the Borrower under the Credit Agreement or any other Loan Document is   stayed upon the insolvency, bankruptcy or reorganization of the Borrower or any of its Affiliates,   all such amounts otherwise subject to acceleration under the terms of the Credit Agreement shall   nonetheless be payable by each of the Guarantors hereunder forthwith on demand by the   Administrative Agent.   SECTION 9. Notices.  All notices, requests and other communications to any party   hereunder shall be given in the manner prescribed in Section 13.1 of the Credit Agreement with   respect to the Administrative Agent at its notice address therein and, with respect to any   Guarantor, in the care of the Borrower at the address of the Borrower set forth in the Credit   Agreement, or such other address or telecopy number as such party may hereafter specify for   such purpose in accordance with the provisions of Section 9.01 of the Credit Agreement.   SECTION 10. No Waivers.  No failure or delay by the Administrative Agent or any   Lenders in exercising any right, power or privilege hereunder shall operate as a waiver thereof   nor shall any single or partial exercise thereof preclude any other or further exercise thereof or   the exercise of any other right, power or privilege.  The rights and remedies provided in this   Guaranty, the Credit Agreement, any agreement evidencing Rate Management Transactions and   the other Loan Documents shall be cumulative and not exclusive of any rights or remedies   provided by law.     





 







   10   SECTION 11. Successors and Assigns.  This Guaranty is for the benefit of the   Administrative Agent and the Lenders and their respective successors and permitted assigns,   provided, that no Guarantor shall have any right to assign its rights or obligations hereunder   without the consent of the Administrative Agent, and any such assignment in violation of this   Section 11 shall be null and void; and in the event of an assignment of any amounts payable   under the Credit Agreement, in accordance with the respective terms thereof, the rights   hereunder, to the extent applicable to the indebtedness so assigned, may be transferred with such   indebtedness. This Guaranty shall be binding upon each of the Guarantors and their respective   successors and assigns.   SECTION 12. Changes in Writing.  Other than in connection with the addition of   additional Subsidiaries, which become parties hereto by executing a Guaranty Supplement hereto   in the form attached as Annex I, neither this Guaranty nor any provision hereof may be changed,   waived, discharged or terminated orally, but only in writing signed by each of the Guarantors   and the Administrative Agent.   SECTION 13. Governing Law; Jurisdiction.     (a) THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH   AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.   (b) Each Guarantor hereby irrevocably and unconditionally submits, for itself and its   property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in   New York County and of the United States District Court of the Southern District of New York,   and any appellate court from any thereof, in any action or proceeding arising out of or relating to   this Guaranty or any other Loan Document, or for recognition or enforcement of any judgment,   and each Guarantor hereby irrevocably and unconditionally agrees that all claims in respect of   any such action or proceeding may be heard and determined in such New York State or, to the   extent permitted by law, in such Federal court.  Each 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 the Administrative Agent, or any Lender may   otherwise have to bring any action or proceeding relating to this Guaranty or any other Loan   Document against any Guarantor or its properties in the courts of any jurisdiction.   (c) Each Guarantor hereby irrevocably and unconditionally waives, to the fullest   extent it may legally and effectively do so, any objection which 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 other Loan Document in any court referred to in paragraph (b) of this Section.  Each   Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the defense of an   inconvenient forum to the maintenance of such action or proceeding in any such court.     





 







   11   (d) Each party to this Guaranty irrevocably consents to service of process in the   manner provided for notices in Section 9 of this Guaranty, and each of the Guarantors hereby   appoints the Borrower as its agent for service of process.  Nothing in this Guaranty or any other   Loan Document will affect the right of any party to this Guaranty to serve process in any other   manner permitted by law.   SECTION 14. WAIVER OF JURY TRIAL.  EACH GUARANTOR HEREBY   WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY   RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING   DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS   GUARANTY OR ANY OTHER LOAN DOCUMENT (WHETHER BASED ON   CONTRACT, TORT OR ANY OTHER THEORY).  EACH GUARANTOR (A)   CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY   OTHER GUARANTOR HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT   SUCH OTHER GUARANTOR WOULD NOT, IN THE EVENT OF LITIGATION, SEEK   TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT   AND THE OTHER GUARANTORS HAVE BEEN INDUCED TO ENTER INTO THIS   GUARANTY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND   CERTIFICATIONS IN THIS SECTION.   SECTION 15. No Strict Construction.  The parties hereto have participated jointly in the   negotiation and drafting of this Guaranty.  In the event an ambiguity or question of intent or   interpretation arises, this Guaranty shall be construed as if drafted jointly by the parties hereto   and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of   the authorship of any provisions of this Guaranty.   SECTION 16. Taxes, Expenses of Enforcement, Etc.   (a) Taxes.   Each payment by any Guarantor hereunder or under any promissory note shall   be made without withholding for any Taxes, unless such withholding is required by any   law. If any Guarantor determines, in its sole discretion exercised in good faith, that it is   so required to withhold Taxes, then such Guarantor may so withhold and shall timely pay   the full amount of withheld Taxes to the relevant Governmental Authority in accordance   with applicable law. If such Taxes are Indemnified Taxes, then the amount payable by the   Guarantor shall be increased as necessary so that, net of such withholding (including such   withholding applicable to additional amounts payable under this Section), the applicable   Recipient receives the amount it would have received had no such withholding been   made.  For purposes of this Guaranty, “Recipient” means, as applicable, (a) the   Administrative Agent, and (b) any Lender.      (ii) In addition, such Guarantor shall timely pay any Other Taxes to the   relevant Governmental Authority in accordance with applicable law.   (iii) As soon as practicable after any payment of Indemnified Taxes by   any Guarantor to a Governmental Authority, such Guarantor shall deliver to the   Administrative Agent the original or a certified copy of a receipt issued by such     





 







   12   Governmental Authority evidencing such payment, a copy of the return reporting such   payment or other evidence of such payment reasonably satisfactory to the Administrative   Agent.   (iv) The Guarantors shall jointly and severally indemnify each   Recipient for any Indemnified Taxes that are paid or payable by such Recipient in   connection with any Loan Document (including amounts payable under this Section   16(a)) and any reasonable expenses arising therefrom or with respect thereto, whether or   not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant   Governmental Authority. The indemnity under this Section 16(a) shall be paid within   fifteen (15) days after the Recipient delivers to any Guarantor a certificate stating the   amount of any Indemnified Taxes so payable by such Recipient. Such certificate shall be   conclusive of the amount so payable absent manifest error. Such Recipient shall deliver a   copy of such certificate to the Administrative Agent. In the case of any Lender making a   claim under this Section 16(a) on behalf of any of its beneficial owners, an indemnity   payment under this Section 16(a) shall be due only to the extent that such Lender is able   to establish that, with respect to the applicable Indemnified Taxes, such beneficial owners   supplied to the applicable Persons such properly completed and executed documentation   necessary to claim any applicable exemption from, or reduction of, such Indemnified   Taxes.   (i) (v)  By accepting the benefits hereof, each Lender agrees that it will   comply with Section 3.5 of the Credit Agreement.   (b) Expenses of Enforcement, Etc.  The Guarantors agree to reimburse the   Administrative Agent and the other Lenders for any reasonable costs and out-of-pocket expenses   (including attorneys’ fees) paid or incurred by the Administrative Agent or any other Lenders in   connection with the collection and enforcement of amounts due under the Loan Documents,   including without limitation this Guaranty.   SECTION 17. Setoff.  At any time after all or any part of the Guaranteed Obligations   have become due and payable (by acceleration or otherwise), each Lender and the   Administrative Agent may, without notice to any Guarantor and regardless of the acceptance of   any security or collateral for the payment hereof, set off and apply toward the payment of all or   any part of the Guaranteed Obligations any and all deposits (general or special, time or demand,   provisional or final and in whatever currency denominated at any time held) and other   obligations at any time owing by such Lender or the Administrative Agent or any of their   Affiliates to or for the credit or the account of any Guarantor against any of and all the   Guaranteed Obligations, irrespective of whether or not such Lender or the Administrative Agent   shall have made any demand under this Guaranty and although such obligations may be   unmatured.  The rights of each Lender or the Administrative Agent under this Section are in   addition to other rights and remedies (including other rights of setoff) which such Lender or the   Administrative Agent may have.   SECTION 18. Financial Information.  Each Guarantor hereby assumes responsibility for   keeping itself informed of the financial condition of the Borrower, the other Guarantors and any   and all endorsers and/or other guarantors of all or any part of the Guaranteed Obligations, and of     





 







   13   all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations, or   any part thereof, that diligent inquiry would reveal, and each Guarantor hereby agrees that none   of the Lenders or the Administrative Agent shall have any duty to advise such Guarantor of   information known to any of them regarding such condition or any such circumstances.  In the   event any Lender or the Administrative Agent, in its sole discretion, undertakes at any time or   from time to time to provide any such information to a Guarantor, such Lender or the   Administrative Agent shall be under no obligation (i) to undertake any investigation not a part of   its regular business routine, (ii) to disclose any information which such Lender or the   Administrative Agent, pursuant to accepted or reasonable commercial finance or banking   practices, wishes to maintain confidential or (iii) to make any other or future disclosures of such   information or any other information to such Guarantor.   SECTION 19. Severability.  Wherever possible, each provision of this Guaranty shall be   interpreted in such manner as to be effective and valid under applicable law, but if any provision   of this Guaranty shall be prohibited by or invalid under such law, such provision shall be   ineffective to the extent of such prohibition or invalidity without invalidating the remainder of   such provision or the remaining provisions of this Guaranty.   SECTION 20. Merger.  This Guaranty represents the final agreement of each of the   Guarantors with respect to the matters contained herein and may not be contradicted by evidence   of prior or contemporaneous agreements, or subsequent oral agreements, between each such   Guarantor and any Lender or the Administrative Agent.   SECTION 21. Headings.  Section headings in this Guaranty are for convenience of   reference only and shall not govern the interpretation of any provision of this Guaranty.   SECTION 22. Amendment and Restatement.  Each of the parties hereto acknowledges   and agrees that upon the execution and delivery of this Guaranty by each of the parties hereto,   the terms and conditions of the Existing Guaranty shall be and hereby are amended, superseded   and restated in their entirety by the terms and provisions of this Guaranty.      [SIGNATURE PAGES TO FOLLOW]    





 







    





 







    





 







      ANNEX I TO GUARANTY      Reference is hereby made to the Guaranty (as the same may be amended, restated,   supplemented or otherwise modified from time to time, the “Guaranty”), dated as of [DATE],   made by each of the Subsidiaries of [__________] (the “Borrower”) listed on the signature pages   thereto (each an “Initial Guarantor”, and together with any additional Subsidiaries which become   parties to the Guaranty by executing Guaranty Supplements thereto substantially similar in form   and substance hereto, the “Guarantors”), in favor of the Administrative Agent, for the ratable   benefit of the Lenders, under the Credit Agreement.  Each capitalized term used herein and not   defined herein shall have the meaning given to it in the Guaranty.     By its execution below, the undersigned, [NAME OF NEW GUARANTOR], a    [________________] [corporation] [partnership] [limited liability company] (the “New   Guarantor”), agrees to become, and does hereby become, a Guarantor under the Guaranty and   agrees to be bound by such Guaranty as if originally a party thereto.  By its execution below, the   undersigned represents and warrants as to itself that all of the representations and warranties   contained in Section 1 of the Guaranty are true and correct in all respects as of the date hereof.   IN WITNESS WHEREOF, the New Guarantor has executed and delivered this Annex I   counterpart to the Guaranty as of this __________ day of _________, 20___.           [NAME OF NEW GUARANTOR]          By:____________________________________    Name:    Title: