Exhibit 10.54
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Second
Amendment"), dated as of April 27, 1998, is entered into between SEER
TECHNOLOGIES, INC., a Delaware corporation (the "Borrower"), and
NATIONSBANK, N.A. (the "Bank").
BACKGROUND
A. The Borrower and the Bank heretofore entered into that
certain Credit Agreement, dated as of July 15, 1996, as amended by that
certain First Amendment to Credit Agreement, dated as of March 27, 1997
(said Credit Agreement, as amended, the "Credit Agreement"; the terms
defined in the Credit Agreement and not otherwise defined herein shall
be used herein as defined in the Credit Agreement).
B. The Borrower and the Bank desire to amend the Credit
Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are all hereby
acknowledged, the Borrower and the Bank covenant and agree as follows:
1. AMENDMENTS.
(a) The dollar amount of "$12,500,000" set forth in the
Background provision of the Credit Agreement is hereby deleted and the
dollar amount of "$17,000,000" is hereby substituted in lieu thereof.
(b) The definition of "Commitment" set forth in Article 1
of the Credit Agreement is hereby deleted and the following is hereby
substituted in lieu thereof:
"'Commitment' means $17,000,000, as reduced pursuant
to Section 2.6 hereof."
(c) The definition of "Hedge Agreements" is hereby added
to Article 1 of the Credit Agreement in proper alphabetical order to
read as follows:
"'Hedge Agreements' means any and all agreements,
devices or arrangements designed to protect at least one of the parties
thereto from the fluctuations of interest rates, currency exchange
rates, forward rates applicable to such party's assets, liabilities or
exchange transactions, including, but not limited to, dollar-denominated
or cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap, swap or collar protection
agreements, and forward rate currency or interest rate options, as the
same may be amended or modified and in effect from time to time, and any
and all cancellations, buy backs, reversals, terminations or assignments
of any of the foregoing."
(d) The definition of "Maturity Date" set forth in Article
1 of the Credit Agreement is hereby deleted and the following is hereby
substituted in lieu thereof:
"'Maturity Date' means (a) June 30, 1999 or (b) the
earlier date of termination in whole of the Commitment pursuant to
Section 2.6 of 6.2 hereof."
(e) Exhibit A to the Credit Agreement is hereby amended to
be in the form of Exhibit A to this Second Amendment (defined herein as
the "Replacement Note").
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT.
By its execution and delivery hereof, the Borrower represents and
warrants that, as of the date hereof and after giving effect to the
amendments contemplated by the foregoing Section 1:
(a) the representations and warranties contained in the
Credit Agreement (other than with respect to Section 4.5 of the Credit
Agreement as a result of that certain Loan and Security Agreement,
Security Agreement in Copyrighted Works and Patent and Trademark
Security Agreement, each dated March 26, 1997, with Greyrock Business
Credit, a division of NationsCredit Commercial Corporation) are true and
correct on and as of the date hereof as made on and as of such date;
(b) no event has occurred and is continuing which
constitutes a Default or an Event of Default;
(c) the Borrower has full power and authority to execute
and deliver this Second Amendment and the Replacement Note, and this
Second Amendment, the Replacement Note, and the Credit Agreement, as
amended hereby, constitute the legal, valid and binding obligations of
the Borrower, enforceable in accordance with their respective terms,
except as enforceability may be limited by applicable debtor relief laws
and by general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law) and except as rights to
indemnity may be limited by federal or state securities laws;
(d) neither the execution, delivery and performance of
this Second Amendment, the Replacement Note or the Credit Agreement, as
amended hereby, nor the consummation of any transaction contemplated
herein or therein, will conflict with any law, rule or regulation to
which the Borrower is subject, or any indenture, agreement or other
instrument to which the Borrower or any of its property is subject; and
(e) no authorization, approval, consent, or other action
by, notice to, or filing with, any governmental authority or other
Person (including any partner of the Guarantor) not already obtained is
required for the execution, delivery or performance by (i) the Borrower
of this Second Amendment or (ii) the Guarantor of the Guaranty
Agreement.
3. CONDITIONS OF EFFECTIVENESS. This Second Amendment shall be
effective as of the date first above written, subject to the following:
(a) the Bank shall have received counterparts of this
Second Amendment executed by the Borrower;
(b) the Bank shall have received an amendment fee from the
Borrower in the amount of $25,000, paid in immediately available funds;
(c) the Bank shall have received the Replacement Note,
duly executed by the Borrower;
(d) the Bank shall have received a copy of the certified
resolution of the Board of Directors of the Borrower authorizing the
execution, delivery and performance of this Second Amendment and the
Replacement Note;
(e) the Bank shall have received a Guaranty Agreement duly
executed by the Guarantor in substantially the form of Exhibit B hereto;
(f) the Bank shall have received an opinion of counsel to
the Guarantor in form and substance satisfactory to the Bank; and
(g) the Bank shall have received, in form and substance
satisfactory to the Bank and its counsel, such other documents,
certificates and instruments as the Bank shall require.
4. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Second Amendment, each
reference in the Credit Agreement to "this Agreement", "hereunder", or
words of like import shall mean and be a reference to the Credit
Agreement, as affected and amended hereby.
(b) The Credit Agreement, as amended by the amendments
referred to above, shall remain in full force and effect and is hereby
ratified and confirmed.
5. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on
demand all costs and expenses of the Bank in connection with the
preparation, reproduction, execution and delivery of this Second
Amendment and the other instruments and documents to be delivered
hereunder (including the reasonable fees and out-of-pocket expenses of
counsel for the Bank with respect thereto and with respect to advising
the Bank as to its rights and responsibilities under the Credit
Agreement, as hereby amended).
6. EXECUTION IN COUNTERPARTS. This Second Amendment may be
executed in any number of counterparts and by different parties hereto
in separate counterparts, each which when so executed and delivered
shall be deemed to be an original and all of which when taken together
shall constitute but one and the same instrument.
7. GOVERNING LAW: BINDING EFFECT. This Second Amendment shall
be governed by and construed in accordance with the laws of the State of
North Carolina and shall be binding upon the Borrower and each Bank and
their respective successors and assigns.
8. HEADINGS. Section headings in this Second Amendment are
included herein for convenience of reference only and shall not
constitute a part of this Second Amendment for any other purpose.
9. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS
SECOND AMENDMENT, AND THE OTHER LOAN PAPERS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE
PARTIES. THERE ARE NO ORAL UNWRITTEN AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as the date first above written.
SEER TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxxx
Title: Co-President & CFO
NATIONSBANK, N.A.
By: /s/ Xxxxxxx X. X'Xxxxxx
Name: Xxxxxxx X. X'Xxxxxx
Title: Vice-President
ACKNOWLEDGED AND AGREED:
WELSH, CARSON, XXXXXXXX & XXXXX VI, L.P.,
a Delaware limited partnership
By: WCAS VI PARTNERS, a Delaware
limited partnership, General Partner
By: /s/ Xxxxx XxxXxxxx,
General Partner
Name: Xxxxx XxxXxxxx
EXHIBIT A
PROMISSORY NOTE
Dallas, Texas $17,000,000.00 April 27, 1998
SEER TECHNOLOGIES, INC., a Delaware corporation (the "Borrower"),
for value received, promises to pay to the order of NATIONSBANK, N.A.
("Bank"), in lawful money of the United States of America, the principal
sum of SEVENTEEN MILLION AND NO/100 DOLLARS ($17,000,000.00), or such
lesser sum as shall be due and payable from time to time hereunder, as
hereinafter provided. All terms used but not defined herein shall have
the meanings set forth in the Credit Agreement described below.
The Borrower promises to pay principal of and interest on the
unpaid principal balance of Advances under this Promissory Note from
time to time outstanding as set forth in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to the Bank as provided in the Credit
Agreement.
This Promissory Note is issued pursuant to and evidences Advances
under a Credit Agreement, dated as of July 15, 1996, between the
Borrower and the Bank (as amended, restated, supplemented, renewed,
extended or otherwise modified from time to time, "Credit Agreement"),
to which reference is made for a statement of the rights and obligations
of the Bank and the duties and obligations of the Borrower in relation
thereto; but neither this reference to the Credit Agreement nor any
provision thereof shall affect or impair the absolute and unconditional
obligation of the Borrower to pay the principal sum of and interest on
this Promissory Note when due. This Promissory Note is an increase,
renewal and restatement (but not a novation of the debt evidenced
thereby) of that certain Promissory Note of the Borrower, dated July 15,
1996, in the principal amount of $12,500,000.
The Borrower and all endorsers, sureties and guarantors of this
Promissory Note hereby severally waive demand, presentment for payment,
protest, notice of protest, notice of acceleration, notice of intention
to accelerate the maturity of this Promissory Note, and all other
notices of any kind, diligence in collecting, the bringing of any suit
against any party and any notice of or defense on account of any
extensions, renewals, partial payments or changes in any manner of or in
this Promissory Note or in any of its terms, provisions and covenants,
or any releases or substitutions of any security, or any delay,
indulgence or other act of any trustee or any holder hereof, whether
before or after maturity.
THIS PROMISSORY NOTE, TOGETHER WITH THE OTHER LOAN PAPERS,
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
SEER TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxxx
Title: Co-President & CFO
EXHIBIT B
AMENDED AND RESTATED GUARANTY
THIS AMENDED AND RESTATED GUARANTY AGREEMENT dated as of April 27,
1998 (the "Guaranty"), is made by Welsh, Carson, Xxxxxxxx & Xxxxx VI,
L.P., a Delaware limited partnership (the "Guarantor"), in favor of
NATIONSBANK, N.A., a national banking association (the "Bank").
RECITALS
C. Seer Technologies, Inc., a Delaware corporation (the
"Borrower"), has a line of credit from the Bank in the aggregate
principal amount of $12,500,000 (the "Original Line of Credit") pursuant
to the terms of that certain Credit Agreement, dated as of July 15,
1996, between the Borrower and the Bank (said Credit Agreement, as
heretofore and hereafter amended, modified or supplemented, the "Credit
Agreement"), which has been guaranteed by the Guarantor pursuant to the
terms of that certain Guaranty in favor of the Bank, dated July 15, 1996
(the "Original Guaranty").
D. In addition, the Borrower is or may be a party to Hedge
Agreements (as defined in the Credit Agreement) with the Bank or an
affiliate of the Bank (herein an "Affiliate").
E. The Borrower has requested that the Bank increase the amount
of the Original Line of Credit to $17,000,000.
F. As a condition to (i) the Bank increasing the Line of Credit
to the Borrower and (ii) the Bank or its Affiliates entering into Hedge
Agreements with the Borrower, the Guarantor is required, among other
things, to execute and deliver this Guaranty.
G. The Guarantor has reviewed all notes, documents, agreements,
instruments and certificates furnished by or on behalf of the Borrower
or the Guarantor in connection with the Credit Agreement (all of the
foregoing with extensions, renewals and amendments thereof, being
collectively herein called the "Financing Documents") and the Guarantor
has determined that its execution and delivery of this Guaranty and the
execution of the Financing Documents by the parties to them will either
directly or indirectly benefit the Guarantor.
AGREEMENT
As an inducement to the Bank to enter into the transactions
contemplated by the Financing Documents, the Guarantor agrees with the
Bank as follows.
1. The Guaranty. The Guarantor hereby unconditionally and
irrevocably guarantees the full and punctual payment (whether at stated
maturity, upon acceleration or otherwise) of the Guaranteed Indebtedness
(hereinafter defined). Upon failure by the Borrower to pay the
Guaranteed Indebtedness when due (whether upon maturity, acceleration or
otherwise), the Guarantor shall forthwith on demand pay the amount not
so paid at the place and in the manner specified by the Bank.
2. Definition of Guaranteed Indebtedness. The term "Guaranteed
Indebtedness," as used herein, means: (i) the indebtedness evidenced by
that certain promissory note (as the same may hereafter be renewed,
extended, amended, modified, supplemented, and/or restated from time to
time and at any time, with or without notice to the Guarantor, herein
called the "Note") dated April 27, 1998, in the principal amount of
$17,000,000, executed by the Borrower, payable to the order of the Bank;
(ii) all obligations and liabilities of the Borrower to the Bank or any
Affiliate pursuant to any Hedge Agreement; (iii) interest on the
indebtedness and liabilities evidenced by the Note or arising under any
Hedge Agreement, whether accruing before or after the commencement of
any case, proceeding or other action relating to the bankruptcy,
insolvency or reorganization of any one or more of the Borrower and the
Guarantor and whether or not allowed in such case, proceeding or other
action; (iv) any and all costs, attorneys fees, and expenses incurred by
the Bank in enforcing this Guaranty; and (v) any renewal or extension of
the indebtedness, costs, fees, or expenses described in (i) through (iv)
preceding, or any part thereof; provided, however, notwithstanding
anything herein to the contrary, the aggregate amount of indebtedness,
liabilities and obligations constituting Guaranteed Indebtedness under
clauses (i) and (ii) immediately preceding shall not exceed an amount
equal to the remainder of (a) $17,500,000 minus (b) the aggregate amount
of any payment of Advances (as defined in the Credit Agreement) which
result in an permanent reduction of the Commitment (as defined in the
Credit Agreement).
3. Continuing Guaranty. This Guaranty is a continuing and
irrevocable guaranty and the circumstance that at any time or from time
to time the Guaranteed Indebtedness may be paid in full shall not affect
the obligations of the Guarantor with respect to Guaranteed Indebtedness
thereafter incurred by the Borrower to Bank or any Affiliate.
4. Guaranty Unconditional. The obligations of the Guarantor
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or
otherwise affected by, and the Guarantor, to the maximum extent
permitted by applicable law, hereby waives any defense to any of its
obligations hereunder that might otherwise be available to it on account
of:
(i) any extension, renewal, settlement,
compromise, waiver or release in respect of any obligation of the
Borrower or any other guarantor under any Financing Document, by
operation of law or otherwise;
(ii) any modification or amendment of or
supplement to any Financing Document;
(iii) any modification, amendment, waiver,
release, non-perfection or invalidity of any direct or indirect
security, or of any guarantee or any liability of any third party, for
any obligation of the Borrower under any Financing Document;
(iv) any change in the corporate existence,
structure or ownership of the Borrower or any other guarantor, or any
insolvency, bankruptcy, reorganization or other similar proceeding
affecting the Borrower or any other guarantor or any of its assets or
any release or discharge of any obligation of the Borrower or any other
guarantor contained in any Financing Document;
(v) the existence of any claim, setoff or other
rights which the Guarantor may have at any time against the Borrower,
the Bank or any Affiliate, whether or not arising in connection herewith
or with any Financing Document; provided that nothing herein shall
prevent the assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any invalidity or unenforceability relating
to or against the Borrower or any other guarantor for any reason of any
Financing Document, or any provision of applicable law or regulation
purporting to prohibit the payment by the Borrower or any other
guarantor of the Guaranteed Indebtedness;
(vii) any other act or omission to act or delay of
any kind by the Borrower, the Bank or any Affiliate or any other
circumstance whatsoever that might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the Guarantor's
obligations hereunder;
(viii) the absence of any attempt to collect any of
the Guaranteed Indebtedness from the Borrower or from any other
guarantor or any other action to enforce the same or the election of any
remedy by the Bank or any Affiliate; or
(ix) any suretyship laws of the State of North
Carolina.
5. Reinstatement In Certain Circumstances. If at any time an
payment of the Guaranteed Indebtedness is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization
of the Borrower or otherwise, the Guarantor's obligations hereunder with
respect to such payment shall be reinstated as though such payment had
been due but not made at such time.
6. Waiver by the Guarantor. The Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not
provided for herein, as well as any requirement that at any time any
action be taken by the Bank or any Affiliate against the Borrower or any
other guarantor or any property subject to any security interest,
pledge, lien, assignment or against securing any obligations of the
Borrower or the Guarantor.
7. Waiver of Subrogation. Until the final payment in full of
the Guaranteed Indebtedness, the Guarantor shall not exercise any rights
against the Borrower arising as a result of payment by the Guarantor
hereunder, by way of subrogation, reimbursement, restitution,
contribution or otherwise.
8. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Borrower under any Financing
Document is stayed upon the insolvency, bankruptcy or reorganization of
the Borrower, all such amounts otherwise subject to acceleration under
the terms of the Financing Documents shall nonetheless be payable by the
Guarantor hereunder forthwith on demand by the Bank.
9. Insolvency. The Guarantor agrees that, in the event of the
dissolution or insolvency of the Borrower or the insolvency of the
Guarantor, or the inability of the Borrower or the Guarantor to pay
debts as they mature, or an assignment by the Borrower or the Guarantor
for the benefit of creditors, or the institution of any proceeding by or
against the Borrower or the Guarantor alleging that the Borrower or the
Guarantor is insolvent or unable to pay debts as they mature, and if
such event shall occur at a time when any of the Guaranteed Indebtedness
may not then be due and payable, the Guarantor will pay to the Bank
forthwith the full amount which would be payable hereunder by the
Guarantor if all Guaranteed Indebtedness were then due and payable.
10. Limit of Liability. The obligations of the Guarantor
hereunder shall be limited to the largest amount that would not render
its obligations hereunder and thereunder subject to avoidance under
Section 548 of the Bankruptcy Code of 1978, as amended, or any
comparable provisions of applicable state law.
11. Representations and Warranties. The Guarantor represents
and warrants to the Bank that:
(i) Partnership Existence and Power. The Guarantor
is a limited partnership duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, has all
powers and all governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted and is duly
qualified as a foreign limited partnership licensed and in good standing
in each jurisdiction where qualification or licensing is required by the
nature of its business or the character and location of its property,
business or customers and in which the failure to have such license,
authorization, consent, approval or qualification, as the case may be,
in the aggregate, could have a material adverse effect on the ability of
the Guarantor to perform its obligations under this Guaranty.
(ii) Partnership and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Guarantor
of this Guaranty are within the power of the Guarantor, have been duly
authorized by all necessary partnership action, require no action by or
in respect of, or filing with, any governmental body, agency or official
and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the charter or partnership agreement
of the Guarantor or of any agreement, judgment, injunction, order,
decree or other instrument that is material, individually or in the
aggregate, to the business of the Guarantor and that is binding upon the
Guarantor or result in any asset of the Guarantor being subject to any
security interest, pledge, lien, assignment or setoff.
(iii) Binding Effect. This Guaranty constitutes a valid and
binding agreement of the Guarantor.
12. Covenants. The Guarantor hereby covenants to the Bank as
follows:
(a) Financial Information. As soon as available but in
any event not later than 90 days after the end of each fiscal year of
the Guarantor, the Guarantor shall deliver to the Bank copies of the
audited financial statements of the Guarantor consisting of at least the
balance sheet, statement of operations, with related notes specifying
significant accounting practices and their impact on such financial
statements and schedules as at and for the year then ended for the
Guarantor, certified by a firm of independent certified public
accountants. Within 45 days after the end of each of the first three
quarters of the fiscal year of the Guarantor, the Guarantor shall
deliver to the Bank copies of the unaudited financial statements of the
Guarantor. The Guarantor shall also furnish to the Bank any other
documents or information which the Bank may from time to time reasonably
request.
(b) Liquidity Covenant. The Guarantor will ensure that at
any time and from time to time until all of the Guaranteed Obligations
have been paid in full the aggregate fair market value of the
Guarantor's assets (including non-restricted marketable securities and
restricted securities readily saleable pursuant to Rule 144 under the
Securities Act of 1933, as amended) that are readily available to pay
the Guaranteed Indebtedness is sufficient to pay the Guaranteed
Indebtedness in full together with any of the other indebtedness or
contingent liabilities of the Guarantor, and forthwith upon any amount
becoming due and payable hereunder will take all steps necessary to
liquidate or otherwise apply such assets and call cash capital
contributions in an amount sufficient, and use the proceeds thereof, to
pay the Guaranteed Indebtedness in full.
13. Notices. Unless otherwise specified herein, all notices,
requests and other communications to any party hereunder shall be in
writing (including bank wire, telex, facsimile transmission or similar
writing) and shall be given to such party at its address or telex or
facsimile transmission number set forth on the signature pages hereof or
such other address or telex or facsimile transmission number as such
party may hereafter specify for the purpose by notice to the other
party. Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is transmitted to the
telex number specified pursuant to this paragraph and the appropriate
answerback is received, (ii) if given by facsimile transmission, when
such facsimile is transmitted to the facsimile transmission number
specified pursuant to this paragraph and telephonic confirmation of
receipt thereof is received, (iii) if given by mail, 72 hours after such
communication is deposited in the malls with first class postage
prepaid, addressed as aforesaid, or (iv) if given by any other means,
when delivered at the address specified pursuant to this paragraph.
14. No Waiver. No failure or delay by the Bank or any
Affiliate in exercising any right, power or privilege under any
Financing Document shall operate as 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 herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
15. Amendments and Waivers. Any provision of this guaranty may
be amended or waived if, but only if, such amendment or waiver is in
writing and is signed by the Guarantor and is consented to in writing by
the Bank.
16. Successors and Assigns. This Guaranty is for the benefit
of the Bank, and its successors and assigns and in the event of an
assignment of the Guaranteed Indebtedness, the rights hereunder, to the
extent applicable to the Guaranteed Indebtedness so assigned, may be
transferred with such Guaranteed Indebtedness. All of the provisions of
this Guaranty shall be binding upon the parties hereto and their
respective successors and assigns, except that the Guarantor may not
assign or transfer any of its rights or obligations under this Guaranty.
17. Counterparts. This Guaranty may be signed m any number of
counterparts, each of which shall be an original, and all of which taken
together shall constitute a single instrument, with the same effect as
if the signature thereto and hereto were upon the same instrument.
18. Governing Law; Submission to Jurisdiction; Waiver of Jury
Trial. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NORTH CAROLINA. THE GUARANTOR HEREBY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA AND OF ANY NORTH
CAROLINA STATE COURT SITTING IN DALLAS FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HERE. THE GUARANTOR IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT
IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. THE GUARANTOR HEREBY AGREES THAT PROCESS MAY
BE SERVED ON IT BY THE MAILING OF SUCH PROCESS TO IT IN ACCORDANCE WITH
PARAGRAPH 10. THE GUARANTOR HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
19. Notice of Final Agreement. THIS WRITTEN GUARANTY AND THE
FINANCING DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
20. Amendment and Restatement. This Guaranty is an amendment
and restatement of the Original Guaranty.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
THIS GUARANTY is executed as of the date first above written.
"GUARANTOR"
WELSH, CARSON, XXXXXXXX & XXXXX VI,
L.P., a Delaware limited partnership
By:WCAS VI PARTNERS, General Partner
By: /s/ Xxxxx XxxXxxxx, General Partner
Name: Xxxxx XxxXxxxx
Address:
Telephone Number:
Facsimile Transmission
Number:
Executed by the Bank for the purpose of the Notice of Final Agreement
set forth above.
"BANK"
NATIONSBANK, N.A., a national
banking association
By: /s/ Xxxxxxx X. X'Xxxxxx
Name: Xxxxxxx X. X'Xxxxxx
Title: Vice-President
Address: c/o NationsBank of Texas, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone Number: (000) 000-0000
Facsimile Transmission
Number: (000) 000-0000
