GUARANTEE AGREEMENT
— Prepared by Calderwood & Harkness LLP
NIH Credit Agreement — (ancillary)
Matter No.: 1005-00001
CONFIDENTIAL —
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GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of [●], 2025 (this "Guarantee Agreement"), is made by each of the undersigned guarantors (each a "Guarantor" and collectively the "Guarantors"), consisting of:
(i) Granite Peak NIH Holdings, LLC, a Delaware limited liability company ("Holdings"); and
(ii) each Subsidiary Guarantor identified on Schedule I hereto (each a "Subsidiary Guarantor" and collectively the "Subsidiary Guarantors"),
in favor of Crescent Harbor Bank, N.A., a national banking association, in its capacity as Collateral Agent (in such capacity, the "Collateral Agent") for the benefit of the Secured Parties (as defined below).
RECITALS
WHEREAS, Nexford Industrial Holdings Inc., a Delaware corporation (the "Borrower"), the Guarantors party thereto, Crescent Harbor Bank, N.A., as Administrative Agent and Collateral Agent, Ironwood Capital Markets, LLC and Northvane Securities, Inc., as Joint Lead Arrangers, and the Lenders from time to time party thereto, have entered into that certain Credit Agreement dated as of [●], 2025 (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "Credit Agreement"), pursuant to which the Lenders have agreed to extend credit to the Borrower in the form of a $1,400,000,000 senior secured Term Loan B facility on the terms and subject to the conditions set forth therein;
WHEREAS, it is a condition precedent to the making of the Loans and the provision of other financial accommodations by the Lenders under the Credit Agreement that the Guarantors execute and deliver this Guarantee Agreement;
WHEREAS, Holdings is the direct parent of the Borrower and the sole owner of 100% of the issued and outstanding equity interests of the Borrower, and will derive direct and substantial benefit from the extension of credit to the Borrower under the Credit Agreement and the other Loan Documents;
WHEREAS, each Subsidiary Guarantor is a direct or indirect domestic subsidiary of the Borrower and will derive substantial direct and indirect benefit from the extension of credit to the Borrower under the Credit Agreement and the other Loan Documents, including through the availability of intercompany financing, the strengthening of the Borrower's financial position, and the general enhancement of the consolidated enterprise of which each Subsidiary Guarantor forms a part;
WHEREAS, the Guarantors have determined that the execution, delivery, and performance of this Guarantee Agreement is in the best interests of each Guarantor and will directly and indirectly benefit each Guarantor; and
WHEREAS, each Guarantor acknowledges that the Lenders would not make the Loans or provide the other financial accommodations under the Credit Agreement but for the execution and delivery of this Guarantee Agreement by the
NOW, THEREFORE, in consideration of the making of the Loans and the provision of other financial accommodations under the Credit Agreement and the other Loan Documents, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Guarantor hereby agrees as follows:
ARTICLE I — DEFINITIONS
Section 1.01 — Defined Terms
Capitalized terms used and not otherwise defined in this Guarantee Agreement shall have the meanings assigned to such terms in the Credit Agreement. As used in this Guarantee Agreement, the following terms shall have the following meanings:
"Administrative Agent" means Crescent Harbor Bank, N.A., a national banking association, in its capacity as administrative agent under the Credit Agreement, together with any successors thereto in such capacity.
"Borrower" means Nexford Industrial Holdings Inc., a Delaware corporation, together with any successors thereto.
"Collateral Agent" means Crescent Harbor Bank, N.A., a national banking association, in its capacity as collateral agent under the Credit Agreement and the other Loan Documents, together with any successors thereto in such capacity.
"Credit Agreement" has the meaning assigned to such term in the preamble to this Guarantee Agreement.
"Guaranteed Obligations" means all Obligations of the Borrower and the other Loan Parties under the Credit Agreement and the other Loan Documents, including, without limitation:
(a) all principal, interest (including post-petition interest, whether or not allowed as a claim in any insolvency, bankruptcy, or reorganization proceeding), premiums (if any), fees (including, without limitation, arrangement fees, upfront fees, administrative agency fees), costs, charges, expenses, reimbursement obligations, indemnification obligations, and all other amounts payable under or in respect of the Loan Documents;
(b) all obligations arising under any Secured Hedge Agreement or any Secured Cash Management Agreement, in each case as such terms are defined in the Credit Agreement;
(c) all costs and expenses of enforcement and collection, including reasonable and documented fees and disbursements of counsel to the Administrative Agent, the Collateral Agent, and the Lenders, incurred in connection with the enforcement or protection of the rights of the Secured Parties under this Guarantee Agreement or any other Loan
in each case, whether such obligations are direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and howsoever arising, including obligations arising by reason of any extension, renewal, modification, acceleration, or restructuring of any of the foregoing. Without limiting the generality of the foregoing, the Guaranteed Obligations include all obligations arising under the $1,400,000,000 Term Loan B facility bearing interest at a rate per annum equal to Term SOFR plus 400 basis points (with a SOFR floor of 0.75%), maturing seven (7) years from the Closing Date as set forth in the Credit Agreement.
"Guarantor" means each of the entities listed on the signature pages hereto and on Schedule I hereto, and each entity that becomes a Guarantor after the date hereof pursuant to Section 7.12 of this Guarantee Agreement.
"Holdings" means Granite Peak NIH Holdings, LLC, a Delaware limited liability company.
"Loan Documents" has the meaning assigned to such term in the Credit Agreement, and includes, without limitation, the Credit Agreement, this Guarantee Agreement, the Security Agreement, the Pledge Agreements (including the Holdings Pledge Agreement), the Intercreditor Agreement, and all other ancillary agreements, instruments, certificates, and documents executed and delivered in connection therewith or pursuant thereto.
"Secured Parties" means the Administrative Agent, the Collateral Agent, the Lenders, and each other holder of Secured Obligations under the Loan Documents (including any counterparty under a Secured Hedge Agreement or a Secured Cash Management Agreement).
"Subsidiary Guarantor" means each existing and future direct and indirect domestic restricted subsidiary of the Borrower that is or becomes a party to this Guarantee Agreement, including, as of the date hereof, each entity listed on Schedule I hereto.
All other capitalized terms used in this Guarantee Agreement and not defined herein shall have the respective meanings ascribed to them in the Credit Agreement, and the rules of interpretation and construction set forth in the Credit Agreement shall apply to this Guarantee Agreement mutatis mutandis.
Section 1.02 — Rules of Construction
The rules of interpretation and construction set forth in Section 1.02 of the Credit Agreement (or, if applicable, such other section of the Credit Agreement setting forth rules of interpretation) shall apply to this Guarantee Agreement as if fully set forth herein. Without limiting the generality of the foregoing:
(a) the term "including" and words of similar import shall be construed to mean "including, without limitation";
(b) references herein to any Section, Article, Schedule, or Exhibit are references to Sections and Articles of, and Schedules and Exhibits to, this Guarantee Agreement unless otherwise specified;
(c) headings and captions used herein are for convenience of reference only and shall not affect the construction or interpretation of this Guarantee Agreement;
(d) words importing the singular include the plural and vice versa, and words importing any gender include all genders;
(e) references to any time of day shall mean such time in New York City, New York, unless otherwise specified;
(f) all Schedules and Exhibits attached hereto are incorporated herein by reference and form a part of this Guarantee Agreement; and
(g) references to any agreement, instrument, or document shall be deemed to refer to such agreement, instrument, or document as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms thereof and the terms of the Credit Agreement.
ARTICLE II — GUARANTEE
Section 2.01 — Guarantee of the Guaranteed Obligations
Each Guarantor hereby, jointly and severally, unconditionally and irrevocably, guarantees to the Collateral Agent, for the ratable benefit of the Secured Parties, the due and punctual payment and performance of all Guaranteed Obligations when and as the same shall become due and payable, whether at stated maturity, by required prepayment, by acceleration, by demand, or otherwise, in accordance with the terms of the Credit Agreement and the other Loan Documents.
This guarantee constitutes a guarantee of payment and performance and not merely a guarantee of collection. Each Guarantor agrees that, in the event that any Guaranteed Obligation is not paid or performed when due (whether at stated maturity, by required prepayment, by acceleration, by demand, or otherwise) in accordance with the terms of the applicable Loan Documents, such Guarantor shall, promptly upon demand by the Collateral Agent, pay or cause to be paid, in lawful money of the United States of America, without set-off, deduction, or counterclaim, the full amount of the Guaranteed Obligations then due and payable to the Collateral Agent for the account of the applicable Secured Parties.
This guarantee applies to all Guaranteed Obligations, whether now existing or hereafter arising, whether direct or indirect, absolute or contingent, whether arising before, during, or after any bankruptcy, insolvency, or similar proceeding, and whether or not allowed or allowable as a claim in any such proceeding. Each Guarantor agrees that the Guaranteed Obligations may be extended, renewed, restructured, or modified from time to time, in whole or in part, without notice to or further assent from any Guarantor, and that each Guarantor shall remain bound upon its guarantee hereunder notwithstanding any such extension, renewal, restructuring, or modification of the Guaranteed Obligations or any of the Loan Documents. No modification of the terms upon which credit is extended under the Credit Agreement, no modification of the Loan Documents, and no increase or decrease of the amounts available thereunder shall release, discharge, or otherwise affect the absolute and unconditional nature of any Guarantor's obligations hereunder.
Section 2.02 — Obligations Unconditional
The obligations of each Guarantor under this Guarantee Agreement are absolute and unconditional, irrespective of:
(a) the value, genuineness, validity, regularity, or enforceability of the Credit Agreement, any other Loan Document, or any other agreement or instrument relating thereto, or the validity of the Guaranteed Obligations or any part thereof;
(b) any substitution, release, impairment, exchange, surrender, loss, or non-perfection of any collateral or other security for any of the Guaranteed Obligations, or any failure to enforce any such collateral or security;
(c) any release, amendment, waiver, extension, modification, or supplement of or to any obligation of any other Guarantor, the Borrower, or any other Loan Party, or any settlement, compromise, or arrangement with any such person;
(d) any change in the corporate existence, structure, or ownership of the Borrower or any Guarantor, including any merger, consolidation, dissolution, liquidation, or reorganization, or any change in the name, business, assets, or liabilities of the Borrower or any Guarantor;
(e) any insolvency, bankruptcy, receivership, reorganization, arrangement, composition, adjustment, dissolution, liquidation, or other like proceeding affecting the Borrower, any Guarantor, or their respective assets, or any resulting release or discharge of any obligation of the Borrower or any Guarantor;
(f) the existence of any claim, set-off, defense, reduction, or counterclaim (other than the defense of payment in full in cash of the Guaranteed Obligations and termination of all commitments under the Credit Agreement) that the Borrower, any Guarantor, or any other person may have against the Collateral Agent, any Secured Party, any Lender, or any other person;
(g) any deficiency in the amount realized from the enforcement or exercise of any right or remedy with respect to any collateral securing all or any portion of the Guaranteed Obligations;
(h) any failure of the Collateral Agent or any Secured Party to
(i) any
(j)
any other act, omission, occurrence, or circumstance that might otherwise constitute a legal or equitable discharge, release, or defense of a surety or guarantor, or that might otherwise limit recourse against any Guarantor.
No Guarantor shall be released from its obligations hereunder by reason of any impairment, limitation, or loss of any right of reimbursement, subrogation, contribution, or indemnity against the Borrower or any other Guarantor, whether arising by operation of law, contract, or otherwise. Each Guarantor acknowledges that the Collateral Agent and the other Secured Parties may, in their sole discretion, and without affecting the obligations of any Guarantor hereunder, release any Guarantor, extend the time for payment of the Guaranteed Obligations, grant other indulgences, take and hold additional security for the Guaranteed Obligations, or release or subordinate any such security.
Section 2.03 — Waivers
Each Guarantor hereby expressly waives, to the fullest extent permitted by applicable law:
(a) promptness, diligence, notice of acceptance of this Guarantee Agreement, and notice of the incurrence of any Guaranteed Obligation or any increase in the amount of the Guaranteed Obligations;
(b) demand for payment or performance, presentment, protest, notice of dishonor, notice of non-payment, notice of default or non-performance under the Credit Agreement or any other Loan Document, and all other notices and demands of any kind to which such Guarantor might otherwise be entitled;
(c) any right to require the Collateral Agent or any Secured Party to (i) proceed against the Borrower or any other person, (ii) proceed against or exhaust any collateral or other security held from the Borrower, any Guarantor, or any other person, or (iii) pursue any other remedy in the Collateral Agent's or any Secured Party's power;
(d) any defense based on any claim that such Guarantor's obligations hereunder exceed or are more burdensome than those of the Borrower;
(e) any defense arising by reason of the incapacity, lack of authority, death, or disability of any other person, or the failure of the Collateral Agent or any Secured Party to file or enforce a claim against the estate (in probate, in any insolvency proceeding, or otherwise) of the Borrower or any other person;
(f) the benefit of any statute of limitations affecting the liability of such Guarantor hereunder, the enforcement of this Guarantee Agreement, or the recovery of any amounts payable hereunder;
(g) any right to require the marshaling of assets of the Borrower, any other Guarantor, or any other person;
(h) any defense based
(i) any defense based on any
(j)
any and all suretyship defenses, whether arising under common law, statute, or otherwise, that might otherwise be available to such Guarantor under applicable law, including, without limitation, any defense arising under Sections 3-605 and 3-419 of the New York Uniform Commercial Code or any equivalent provision under any other applicable law.
Each Guarantor acknowledges that the foregoing waivers are a material inducement to the Lenders' agreement to make the Loans and provide other financial accommodations under the Credit Agreement, and that the Collateral Agent and the Secured Parties are relying upon the foregoing waivers in connection therewith.
Section 2.04 — Guarantee of Payment; Continuing Guarantee
This Guarantee Agreement is a guarantee of payment and not of collection. Each Guarantor agrees that the Collateral Agent, on behalf of the Secured Parties, may enforce this Guarantee Agreement directly against any Guarantor without first proceeding against the Borrower, any other Guarantor, or any other person, and without first resorting to or exhausting any collateral or other security for the Guaranteed Obligations, or pursuing any other remedy available to the Collateral Agent or the Secured Parties. The Collateral Agent shall not be required to make any demand upon, or pursue or exhaust any of its rights or remedies against, the Borrower, any other Guarantor, or any other person, or with respect to any collateral, before, simultaneously with, or after enforcing its rights and remedies under this Guarantee Agreement against any Guarantor.
This Guarantee Agreement is a continuing guarantee and shall remain in full force and effect until all Guaranteed Obligations have been indefeasibly paid in full in cash (other than contingent indemnification obligations for which no claim has been asserted) and the Credit Agreement has been terminated and all commitments thereunder have expired or been terminated. This Guarantee Agreement shall continue to be effective, or shall be reinstated, as the case may be, if at any time any payment, or any part thereof, of any Guaranteed Obligation is rescinded or must be restored or returned by any Secured Party upon the insolvency, bankruptcy, reorganization, dissolution, liquidation, or other similar proceeding of the Borrower, any Guarantor, or any other Loan Party, or upon or as a result of the appointment of a receiver, intervenor, conservator, or trustee of the Borrower, any Guarantor, or any other Loan Party, or for any other reason, all as though such payment had not been made. If an Event of Default shall have occurred and be continuing, each Guarantor shall, upon demand by the Collateral Agent, immediately pay to the Collateral Agent, for the account of the applicable Secured Parties, the full amount of the Guaranteed Obligations then due and payable, without set-off, deduction, or counterclaim of any kind.
Section 2.05 — Subrogation; Subordination
Until all Guaranteed Obligations have been indefeasibly paid in full in cash (other than contingent indemnification obligations for which no claim has been asserted) and the Credit Agreement has been terminated and all commitments thereunder have expired or been terminated:
(a) No Guarantor shall exercise or enforce, and each Guarantor hereby irrevocably waives, any right of subrogation, contribution, reimbursement, recourse, or indemnity that such Guarantor may now or hereafter have against the Borrower or any other Guarantor in respect of any payment or performance made by such Guarantor under this Guarantee Agreement, whether such right arises by operation of law, by contract, or otherwise.
(b) Each Guarantor hereby irrevocably subordinates any and all claims that such Guarantor may have against the Borrower or any other Guarantor arising from the performance of this Guarantee Agreement (including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, and any right to participate in any claim or remedy of the Collateral Agent or any Secured Party against the Borrower or any other Guarantor, whether such claim, remedy, or right arises in equity, under contract, by statute, under common law, or otherwise) to the prior indefeasible payment in full in cash of all Guaranteed Obligations.
(c) If, notwithstanding the foregoing provisions of this Section 2.05, any Guarantor shall receive any payment, distribution, or other value on account of any right of subrogation, contribution, reimbursement, or indemnity referred to in clause (a) or (b) above prior to the indefeasible payment in full in cash of all Guaranteed Obligations, such Guarantor shall hold such payment, distribution, or other value in trust for the benefit of the Secured Parties and shall promptly remit the same, in the form received (with any necessary endorsement), to the Collateral Agent for application to the Guaranteed Obligations in accordance with the terms of the Credit Agreement.
Section 2.06 — Acceleration
If any Event of Default described in Section [●] of the Credit Agreement (relating to insolvency, bankruptcy, receivership, or similar events of default) shall occur with respect to the Borrower, all Guaranteed Obligations (whether or not then due and payable) shall be immediately and automatically due and payable by each Guarantor, without presentment, demand, protest, notice of default, notice of acceleration, or other notice of any kind, all of which are hereby waived by each Guarantor, notwithstanding any stay, injunction, or other prohibition (including, without limitation, any automatic stay arising under Section 362 of the Bankruptcy Code or any similar provision of applicable law) that may prevent or delay the acceleration of the Guaranteed Obligations against the Borrower. Each Guarantor acknowledges and agrees that its obligations under this Section 2.06 are independent of the obligations of the Borrower and that a separate action or actions may be brought against each Guarantor, whether or not an action is brought against the Borrower or any other Guarantor or whether or not the Borrower is joined in any such action.
ARTICLE III — LIMITATION ON GUARANTOR LIABILITY
Section 3.01 — Limitation to Avoid Fraudulent Conveyance
Notwithstanding any other provision of this Guarantee Agreement to the contrary, the obligations of each Guarantor under this Guarantee Agreement shall be limited to an aggregate amount equal to the largest amount that would not render such Guarantor's obligations under this Guarantee Agreement subject to avoidance as a fraudulent transfer or fraudulent conveyance under Section 548 of the Bankruptcy Code (11 U.S.C. § 548), any comparable provision of applicable state law (including, without limitation, the Uniform Fraudulent Transfer Act and the Uniform Voidable Transactions Act, as applicable in the relevant jurisdiction), or any other applicable federal or state law relating to fraudulent transfers or conveyances.
For purposes of the foregoing determination, the obligations of each Guarantor under this Guarantee Agreement shall be reduced to the extent necessary by giving effect to (a) all other fixed and contingent liabilities of such Guarantor, whether matured or unmatured, that are relevant under such laws, and (b) the value of all property of such Guarantor available to satisfy such liabilities, in each case determined as of the date of this Guarantee Agreement or, if later, the date on which such entity becomes a Guarantor under this Guarantee Agreement (including by execution and delivery of a Joinder Agreement pursuant to Section 7.12). In making such determination, the right of each Guarantor to receive contributions from the other Guarantors pursuant to Section 3.02 hereof shall be taken into account as an asset of such Guarantor.
This Section 3.01 is intended solely for the benefit of creditors of each Guarantor and for the purpose of preserving the enforceability of this Guarantee Agreement to the maximum extent not subject to avoidance, and shall not be construed to limit the liability of any Guarantor to any amount less than the maximum amount for which such Guarantor's guarantee is enforceable. The provisions of this Section 3.01 may be enforced by the Collateral Agent, on behalf of the Secured Parties, against any creditor of any Guarantor.
Section 3.02 — Contribution Among Guarantors
In the event that any Guarantor (a "Paying Guarantor") makes a payment under this Guarantee Agreement in respect of the Guaranteed Obligations, each other Guarantor (each a "Contributing Guarantor") shall contribute to the Paying Guarantor an amount equal to such Contributing Guarantor's pro rata share of such payment. For purposes of this Section 3.02, each Contributing Guarantor's pro rata share shall be determined based on the relative of each Guarantor (determined as of the date on which the applicable payment is made under this Guarantee Agreement),
Notwithstanding the foregoing, the right of contribution set forth in this Section 3.02 is expressly subordinate and subject in right of payment to the rights of the Secured Parties under this Guarantee Agreement and the other Loan Documents, and no Guarantor shall exercise any right of contribution under this Section 3.02 until all Guaranteed Obligations have been indefeasibly paid in full in cash (other than contingent indemnification obligations for which no claim has been asserted) and the Credit Agreement has been terminated and all commitments thereunder have expired or been terminated.
Section 3.03 — Holdings Guarantor Limitation
Notwithstanding any other provision of this Guarantee Agreement to the contrary, the guarantee of Holdings (Granite Peak NIH Holdings, LLC) under this Guarantee Agreement shall be limited to the value of the equity interests in the Borrower pledged by Holdings under the Holdings Pledge Agreement (as defined in the Credit Agreement), representing 100% of the issued and outstanding equity interests in Nexford Industrial Holdings
The parties hereto acknowledge that Holdings is a special-purpose holding company with no material assets other than its equity interest in the Borrower and related organizational documents and agreements, and that the limitation set forth in this Section 3.03 is intended to reflect the particular nature and circumstances of Holdings' participation in this Guarantee Agreement. Nothing in this Section 3.03 shall be construed to limit or impair the obligations of any Subsidiary Guarantor under this Guarantee Agreement.
ARTICLE IV — REPRESENTATIONS AND WARRANTIES
Each Guarantor hereby represents and warrants to the Collateral Agent and the Secured Parties, as of the date hereof (and, with respect to any Guarantor that becomes a party hereto after the date hereof, as of the date of its joinder), as follows:
Section 4.01 — Organization and Good Standing
Each Guarantor is duly organized, validly existing, and in good standing (or the equivalent thereof, to the extent such concept exists) under the laws of its jurisdiction of organization and has all requisite corporate, limited liability company, or other organizational power and authority to own and operate its properties and assets, to carry on its business as presently conducted, and to execute, deliver, and perform its obligations under this Guarantee Agreement. Each Guarantor is duly qualified and authorized to do business and is in good standing in each jurisdiction where the character of its properties or the nature of its activities requires such qualification, except where the failure to be so qualified could not reasonably be expected to have a Material Adverse Effect.
As of the date hereof, the Guarantors and their respective jurisdictions of organization and entity types are as follows:
Holdings:
Subsidiary Guarantors:
Section 4.02 — Authorization; Enforceability
The execution, delivery, and performance by each Guarantor of this Guarantee Agreement have been duly authorized by all necessary corporate, limited liability company, or other organizational action on the part of such Guarantor, including the adoption of all necessary resolutions by the board of directors, board of managers, managing member, or other governing body of such Guarantor, and, where required, the consent of the members or equity holders of such Guarantor. No other corporate, limited liability company, or other organizational action or proceeding on the part of any Guarantor is necessary for the execution, delivery, and performance of this Guarantee Agreement.
This Guarantee Agreement has been duly executed and delivered by each Guarantor and constitutes the legal, valid, and binding obligation of each Guarantor, enforceable against such Guarantor in accordance with its terms, subject to (a) applicable bankruptcy, insolvency, receivership, fraudulent conveyance, reorganization, moratorium, and similar laws affecting creditors' rights generally from time to time in effect, and (b) general principles of equity, including concepts of materiality, reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a proceeding in equity or at law).
Section 4.03 — No Conflicts
The execution, delivery, and performance by each Guarantor of this Guarantee Agreement do not and will not:
(a) violate, conflict with, or result in a breach of any provision of the certificate or articles of incorporation, certificate of formation, limited liability company agreement, bylaws, operating agreement, or other organizational documents of such Guarantor;
(b) violate, conflict with, or result in a breach of any applicable law, statute, rule, regulation, judgment, order, writ, injunction, or decree of any governmental authority applicable to such Guarantor or any of its properties or assets;
(c) result in a breach of, constitute a default (or an event that, with the giving of notice or lapse of time or both, would constitute a default) under, or give rise to any right of termination, cancellation, amendment, acceleration, or loss of any benefit under, any material agreement, indenture, mortgage, deed of trust, lease, license, contract, or other instrument to which such Guarantor is a party or by which such Guarantor or any of its properties or assets is bound; or
(d) result in the creation or imposition of any lien (other than Permitted Liens as defined in the Credit Agreement) on any property or asset of such
Section 4.04 — Governmental Approvals
No governmental consent, authorization, approval, order, license, permit, registration, declaration, or filing with, or notice to, any governmental authority is required for the execution, delivery, or performance by any Guarantor of this Guarantee Agreement or for the validity or enforceability of this Guarantee Agreement, except for (a) such consents, authorizations, approvals, orders, licenses, permits, registrations, declarations, and filings as have been obtained or made and are in full force and effect on the date hereof, and (b) filings required to be made in connection with the creation and perfection of the security interests granted under the Security Agreement and the other Loan Documents, including filings under the Uniform Commercial Code in the applicable
Section 4.05 — Solvency
After giving effect to the transactions contemplated by the Credit Agreement and the other Loan Documents, including (a) the borrowing of the $1,400,000,000 Term Loan B facility, (b) the refinancing of the existing $879,375,000 first lien term loan facility and the termination of the existing $190,000,000 revolving credit facility with Atlas Meridian Bank, N.A. (as administrative agent), and (c) the payment of the approximately $335,000,000 dividend to Holdings (and, indirectly, to Holdings' equity holder, Granite Peak Capital Partners, LP), and the payment of all fees, costs, and expenses in connection therewith:
(a) the fair value of the assets of each Guarantor (on a standalone basis) and of each Guarantor together with its subsidiaries (on a consolidated basis) exceeds the sum of such Guarantor's (or such Guarantor's and its subsidiaries', as applicable) total debts and liabilities, subordinated, contingent, or otherwise;
(b) each Guarantor (on a standalone basis) and each Guarantor together with its subsidiaries (on a consolidated basis) is able to pay its debts and other liabilities, subordinated, contingent, or otherwise, as such debts and liabilities become absolute and matured in the ordinary course of business; and
(c) each Guarantor (on a standalone basis) and each Guarantor together with its subsidiaries (on a consolidated basis) does not have unreasonably small capital with which to conduct the business in which it is engaged or proposes to be engaged, and has adequate capital to carry on its business as presently conducted and as proposed to be conducted following the consummation of the transactions contemplated by the Credit Agreement.
For purposes of this Section 4.05, the amount of any contingent liability at any time shall be computed as the amount that, in the light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
Section 4.06 — Benefit
Each Guarantor acknowledges and represents that it will receive direct and indirect benefits from the making of the Loans and the provision of the other financial accommodations to the Borrower under the Credit Agreement, including through the availability of intercompany financing, the strengthening and enhancement of the financial condition and creditworthiness of the consolidated enterprise of which such Guarantor forms a part, the ability of the Borrower to provide capital, working capital, and other financial support to such Guarantor, and the general commercial and economic benefits of maintaining and enhancing the financial position of the Borrower and the consolidated enterprise. Each Guarantor has determined that such benefits are sufficient to support its obligations under this Guarantee Agreement.
ARTICLE V — COVENANTS
Each Guarantor hereby covenants and agrees with the Collateral Agent and the Secured Parties as follows:
Section 5.01 — Compliance with Credit Agreement Covenants
Each Guarantor shall comply with all covenants and obligations applicable to it, as a Loan Party, under the Credit Agreement and the other Loan Documents, including, without limitation, the negative covenants set forth in Article [●] of the Credit Agreement relating to limitations on indebtedness, liens, restricted payments, investments, asset dispositions, fundamental changes, affiliate transactions, restrictive agreements, and other matters, and the affirmative covenants set forth in Article [●] of the Credit Agreement relating to the delivery of financial statements, maintenance of properties, compliance with laws, payment of taxes, and other matters. To the extent that any provision of the Credit Agreement or any other Loan Document imposes any obligation on the Borrower to cause the Guarantors to take or refrain from taking any action, each Guarantor agrees to take or refrain from taking such action as required.
Section 5.02 — Maintenance of Existence
Each Guarantor shall at all times preserve, renew, and maintain in full force and effect its legal existence and good standing (or the equivalent thereof, to the extent such concept exists) under the laws of its jurisdiction of organization, except as otherwise permitted by the Credit Agreement (including in connection with mergers, consolidations, and dissolutions expressly permitted thereunder). Each Guarantor shall maintain its qualification to do business and good standing in each other jurisdiction where the failure to maintain such qualification or good standing could reasonably be expected to have a Material Adverse Effect.
Section 5.03 — Additional Guarantors
The Borrower shall cause each domestic restricted subsidiary formed or acquired after the date hereof (other than any Excluded Subsidiary as defined in the to execute and deliver to the Collateral Agent a Joinder Agreement substantially in the form of Exhibit A hereto within the time period specified in the Credit Agreement (which is sixty (60) days after the date of formation or acquisition of such domestic restricted subsidiary, subject to extensions of time as may be agreed by the Administrative Agent in its reasonable discretion), whereupon such domestic restricted subsidiary shall become a Guarantor under this Guarantee Agreement with the same force and effect as if originally named herein.
As of the date hereof, the Subsidiary Guarantors include entities acquired by the Borrower and its subsidiaries through 2024, including (a) Clearfield Tool & Die, Inc. (acquired 2021), (b) Summit Industrial Fabrication Co. (acquired 2022), (c) Ridgepoint Specialty Coatings, LLC (acquired 2023), and (d) Lakeshore Precision Engineering, Inc. (acquired 2024). Any additional domestic restricted subsidiaries formed or acquired after the date hereof in connection with future acquisitions or otherwise shall be required to become Guarantors hereunder in accordance with this Section 5.03 and the applicable provisions of the Credit Agreement.
Section 5.04 — Notices
Each Guarantor shall promptly (and in any event within five (5) Business Days after any Responsible Officer of such Guarantor obtains knowledge thereof) notify the Collateral Agent in writing of:
(a) any material change in such Guarantor's legal name, jurisdiction of organization, form of organization, or organizational identification number (or the equivalent thereof);
(b) the occurrence of any event that would constitute, or with the giving of notice or the lapse of time or both would constitute, an Event of Default under the Credit Agreement;
(c) any action, suit, proceeding, claim, or investigation pending or, to the knowledge of such Guarantor, threatened against such Guarantor or any of its properties or assets before any court, governmental authority, or arbitral tribunal that could reasonably be expected to have a Material Adverse Effect; and
(d) any
Each such notice shall be accompanied by a written statement of a Responsible Officer of the Guarantor setting forth in reasonable detail the nature of the event, occurrence, or condition giving rise to such notice and, if applicable, the action that such Guarantor has taken or proposes to take with respect thereto.
ARTICLE VI — EVENTS OF DEFAULT AND REMEDIES
Section 6.01 — Events of Default
The occurrence and continuance of any Event of Default (as defined in and described in Article [●] of the Credit Agreement, including, without limitation, events of default relating to non-payment of principal, interest, fees, or other amounts; breach of representations and warranties; breach of covenants (including both affirmative and negative covenants); cross-default to other material indebtedness; insolvency, bankruptcy, and similar events; judgment defaults; ERISA events; change of control; and invalidity of any Loan Document) shall constitute an "Event of Default" for all purposes of this Guarantee Agreement. The Collateral Agent shall have no obligation to provide any separate notice of default to the Guarantors under this Guarantee Agreement if notice has been provided to the Borrower or the Guarantors in accordance with the Credit Agreement.
Section 6.02 — Remedies
Upon the occurrence and during the continuance of any Event of Default, the Collateral Agent (acting at the direction of the Required Lenders under the Credit Agreement) may, by written notice to the Guarantors (or, in the case of an Event of Default described in Section [●] of the Credit Agreement relating to insolvency and bankruptcy, automatically and without notice):
(a) declare all Guaranteed Obligations to be immediately due and payable by the Guarantors, without presentment, demand, protest, or notice of any kind, all of which are hereby expressly waived by each Guarantor;
(b) exercise all rights and remedies available to the Collateral Agent and the Secured Parties under this Guarantee Agreement, the Security Agreement, the Pledge Agreements, and the other Loan Documents;
(c) exercise all rights and remedies available under applicable law, including, without limitation, the New York Uniform Commercial Code and the Uniform Commercial Code as in effect in any other applicable jurisdiction; and
(d) take any and all other actions and exercise any and all other rights and remedies that the Collateral Agent (at the direction of the Required Lenders) may deem necessary or appropriate to protect and enforce the rights and interests of the Secured Parties.
All rights and remedies of the Collateral Agent and the Secured Parties under this Guarantee Agreement, the other Loan Documents, and applicable law are cumulative and not exclusive of any other rights or remedies that may be available to the Collateral Agent or the Secured Parties. No exercise of any right or remedy shall preclude the exercise of any other right or remedy, whether at the same or different times.
Section 6.03 — Application of Payments
All payments received by the Collateral Agent from the Guarantors under this Guarantee Agreement shall be applied in the order of priority specified in Section [●] of the Credit Agreement (the "Waterfall Provision"), which generally provides for application as follows:
first, to the payment of all fees, costs, expenses, reimbursement obligations, and indemnification obligations due and payable to the Administrative Agent and the Collateral Agent under the Loan Documents;
second, to the payment of all accrued and unpaid interest on the Guaranteed Obligations (including post-petition interest);
third, to the payment of all outstanding principal of the Guaranteed Obligations;
fourth, to the payment of all other Guaranteed Obligations then due and payable (including obligations under Secured Hedge Agreements and Secured Cash Management Agreements); and
fifth, the balance, if any, after indefeasible payment in full in cash of all Guaranteed Obligations, to the Borrower or as otherwise directed by a court of competent jurisdiction.
The Collateral Agent shall have sole discretion to determine the application of payments received from the Guarantors among the foregoing categories and among the Secured Parties, in each case in accordance with the Credit Agreement and the other Loan Documents.
ARTICLE VII — MISCELLANEOUS
Section 7.01 — Notices
All notices, requests, demands, consents, instructions, and other communications required or permitted to be given under this Guarantee Agreement shall be in writing and shall be given, delivered, and deemed received in accordance with the notice provisions of the Credit Agreement. For the purposes of this Guarantee Agreement, the addresses and other contact information of the parties are as follows:
If to the Collateral Agent:
Crescent Harbor Bank, N.A. 320 Federal Street Boston, Massachusetts 02110
Attention: Agency Services — Nexford Industrial Holdings Inc. Account
If to Holdings:
Granite Peak NIH Holdings, LLC c/o Penmark Industries 1209 Orange Street Wilmington, Delaware 19801
with a copy (which shall not constitute notice) to:
Granite Peak Capital Partners, LP 600 Steamboat Road, Suite 300 Greenwich, CT 06830
Attention: Ryan Ostrowski
If to the Borrower (for purposes of any notices to be provided to the Borrower in connection with this Guarantee Agreement):
Nexford Industrial Holdings Inc. 1400 Industrial Parkway Schaumburg, IL 60173
Attention: David Engstrom, General Counsel & Corporate Secretary
If to any Subsidiary Guarantor, at the address set forth on the signature pages hereto or in the applicable Joinder Agreement.
With copies (which shall not constitute notice) to:
Calderwood & Harkness LLP 425 Lexington Avenue New York, NY 10017
Attention: Claudia Merritt
Any party may change its address for notice purposes by giving written notice of such change to the other parties in accordance with this Section 7.01.
Section 7.02 — Amendments and Waivers
No amendment, modification, supplement, or waiver of any provision of this Guarantee Agreement, and no consent to any departure by any Guarantor from any provision hereof, shall be effective unless in writing and signed by the Collateral Agent (acting at the direction of the Required Lenders under the Credit Agreement) and each Guarantor affected thereby, and each such amendment, modification, supplement, waiver, or consent shall be effective only in the specific instance and for the specific purpose for which it is given. The provisions of Section [●] of the Credit Agreement relating to amendments and waivers shall apply to this Guarantee Agreement mutatis mutandis to the extent applicable.
Section 7.03 — Successors and Assigns
This Guarantee Agreement shall be binding upon each Guarantor and its successors and assigns, and shall inure to the benefit of the Collateral Agent, the Secured Parties, and their respective successors, transferees, and assigns. No Guarantor may assign or transfer its rights or obligations under this Guarantee Agreement to any person without the prior written consent of the Collateral Agent (acting at the direction of the Required Lenders), and any attempted assignment or transfer without such consent shall be null and void. Any Lender may assign its rights and obligations under the Credit Agreement and the other Loan Documents (including its rights and benefits under this Guarantee Agreement) in accordance with the assignment provisions of the Credit Agreement, and any such assignment shall not require the consent of any Guarantor. Upon any such assignment, the assignee shall be entitled to all of the benefits of this Guarantee Agreement to the same extent as if such assignee were originally named as a Secured Party herein.
Section 7.04 — Governing Law
THIS GUARANTEE AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS-OF-LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION, OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
Section 7.05 — Jurisdiction and Venue
EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK, AND THE UNITED STATES DISTRICT COURT FOR 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 GUARANTEE AGREEMENT, THE CREDIT AGREEMENT, OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT. 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 COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTEE AGREEMENT, THE CREDIT AGREEMENT, OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN THE PRECEDING PARAGRAPH, AND HEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH GUARANTOR IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 7.01 OF THIS GUARANTEE AGREEMENT. NOTHING IN THIS GUARANTEE AGREEMENT SHALL AFFECT THE RIGHT OF THE COLLATERAL AGENT OR ANY SECURED PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
Section 7.06 — Waiver of Jury Trial
EACH GUARANTOR, THE COLLATERAL AGENT, AND EACH SECURED PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS GUARANTEE AGREEMENT, THE CREDIT AGREEMENT, ANY OTHER LOAN DOCUMENT, THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, OR THE ACTIONS OF THE COLLATERAL AGENT, ANY SECURED PARTY, OR ANY GUARANTOR IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT THEREOF. EACH GUARANTOR ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO THE LENDERS' AGREEMENT TO MAKE THE LOANS UNDER THE CREDIT AGREEMENT AND THAT THE COLLATERAL AGENT AND THE SECURED PARTIES HAVE ENTERED INTO THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS IN RELIANCE UPON THIS WAIVER. EACH GUARANTOR CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF THE COLLATERAL AGENT OR ANY SECURED PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE COLLATERAL AGENT OR ANY SECURED PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH GUARANTOR UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH GUARANTOR MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH GUARANTOR HAS BEEN INDUCED TO ENTER INTO THIS GUARANTEE AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.06.
Section 7.07 — Severability
If any provision of this Guarantee Agreement is held to be invalid, illegal, or unenforceable by any court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions of this Guarantee Agreement shall not in any way be affected or impaired thereby, and the parties shall endeavor in good faith negotiations to replace the invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that, to the greatest extent possible, achieves the economic, business, and other purposes of such invalid, illegal, or unenforceable provision. To the extent permitted by applicable law, each Guarantor hereby waives any provision of law that renders any provision of this Guarantee Agreement invalid, illegal, or unenforceable in any respect.
Section 7.08 — Entire Agreement
This Guarantee Agreement, together with the Credit Agreement and the other Loan Documents, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, of the parties with respect to such subject matter. There are no representations, warranties, covenants, conditions, or other agreements, express or implied, collateral or otherwise, between or among the parties relating to the subject matter hereof other than those expressly set forth in this Guarantee Agreement, the Credit Agreement, and the other Loan Documents.
Section 7.09 — Counterparts; Electronic Execution
This Guarantee Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Guarantee Agreement by facsimile or other electronic transmission (including by portable document format (.pdf) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the New York Electronic Signatures and Records Act or other applicable law, e.g., www.Brightwater Software.com) shall be effective as delivery of a manually executed counterpart of this Guarantee Agreement. The words "execution," "signed," "signature," "delivery," and words of like import in or relating to this Guarantee Agreement shall be deemed to include electronic signatures, deliveries, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity, or enforceability as a manually executed signature, physical delivery thereof, or the use of a paper-based recordkeeping system, as the case may be.
Section 7.10 — Headings
The headings and captions used in this Guarantee Agreement (including the table of contents, if any) are for convenience of reference only and shall not affect the construction or interpretation of any provision of this Guarantee Agreement.
Section 7.11 — Collateral Agent Appointment