EXHIBIT 10.50
GUARANTY AGREEMENT
This GUARANTY AGREEMENT, dated as of November 30, 2006 (this "Guaranty
Agreement"), made by EquityCo, L.L.C., a Nevada limited liability company (the
"Guarantor"), in favor of the Mezzanine Investors (as such term is defined in
the Investor Rights Agreement, defined below) (the "Mezzanine Investors"), and
Post Advisory Group, L.L.C., a Delaware limited liability company (its
successors and assigns and any other financial institution reasonably acceptable
to the Mezzanine Investors, the "Collateral Agent"), is entered into pursuant to
that certain Amended and Restated Investor Rights Agreement, dated as of
November 30, 2006 (as amended, supplemented or otherwise modified from time to
time, the "Investor Rights Agreement"), by and among MezzCo, L.L.C., a Nevada
limited liability company (the "Company"), the Guarantor, and the
Securityholders identified therein.
Capitalized terms used herein but not
otherwise defined herein shall have the meaning ascribed thereto in the Investor
Rights Agreement.
RECITALS
WHEREAS, the Guarantor has agreed that it will be a guarantor of the Company's
obligations to the Mezzanine Investors in connection with the Investor Rights
Agreement; and
WHEREAS, the Company has received substantial benefit from the issuance of
Warrants to the Mezzanine Investors and the other transactions contemplated by
the Restructuring Documents, and Guarantor, as the managing member of the
Company, is expected to benefit, directly or indirectly, from such transactions;
NOW, THEREFORE, in consideration of the foregoing premises and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor hereby agrees with the Mezzanine Investors and the Collateral Agent,
as follows:
1.
GUARANTY.
THE GUARANTOR HEREBY IRREVOCABLY, ABSOLUTELY AND
UNCONDITIONALLY GUARANTEES TO THE MEZZANINE INVESTORS AND EACH OF THEIR
RESPECTIVE SUCCESSORS, TRANSFEREES AND ASSIGNS, AS OBLIGOR AND NOT MERELY AS A
SURETY, THE PROMPT AND COMPLETE PAYMENT (AS AND WHEN DUE AND PAYABLE) OF (I) THE
OBLIGATION OF THE COMPANY TO PAY THE REDEMPTION PRICE (AS DEFINED IN THE
WARRANTS) PRIOR TO THE EXPIRATION OF THE PUT DEMAND PERIOD (AS DEFINED IN THE
WARRANTS) AND (II)
ANY INDEBTEDNESS ARISING UNDER THE PUT NOTE (AS DEFINED IN
THE WARRANT) ISSUED OR DEEMED TO BE ISSUED PURSUANT TO THE WARRANTS (OR ANY
OTHER INSTRUMENTS AT ANY TIME EVIDENCING ANY OF THE OBLIGATIONS REFERENCED IN
CLAUSE (I) OR (II), THE "GUARANTEED OBLIGATIONS") AND AGREES TO PAY ON DEMAND
ANY AND ALL REASONABLE COSTS AND EXPENSES (INCLUDING REASONABLE FEES AND
OUT-OF-POCKET EXPENSES OF ONE OUTSIDE LEGAL COUNSEL AND ONE OUTSIDE NEVADA
COUNSEL FOR THE COLLATERAL AGENT AND THE MEZZANINE INVESTORS) WHICH MAY BE PAID
OR INCURRED BY THE COLLATERAL AGENT OR ANY MEZZANINE INVESTOR IN COLLECTING,
ENFORCING OR EXERCISING ANY AVAILABLE REMEDIES IN RESPECT OF ANY OR ALL OF THE
GUARANTEED OBLIGATIONS AND THE OBLIGATIONS OF THE GUARANTOR UNDER THIS GUARANTY
AGREEMENT (ITS "GUARANTY").
THE GUARANTOR ACKNOWLEDGES AND AGREES THAT THIS
GUARANTY CONSTITUTES A GUARANTY OF PAYMENT WHEN DUE AND NOT OF COLLECTION, AND
WAIVES ANY RIGHT TO REQUIRE ANY RESORT OF THE MEZZANINE INVESTORS OR THE
COLLATERAL AGENT TO ANY OF THE COLLATERAL (AS SUCH TERM IS DEFINED