EXHIBIT 4(a)(4)
GUARANTY
This Agreement of Guaranty is executed and delivered as of September 28,
1999, by Xxxxxxx of Mississippi, Inc., a corporation organized and existing
under the laws of Delaware (the "Guarantor"), in favor of FLEET NATIONAL
BANK, a national banking association organized under the laws of the United
States and having a principal place of business at Xxx Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, ("Agent") acting as agent for itself in its
individual capacity and for the other banks now or hereafter party to the
Loan Agreement (defined below) (the Agent in its individual capacity and such
other banks being hereinafter referred to collectively as the "Lenders" and
each singly as a "Lender").
WITNESSETH THAT:
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WHEREAS, on or about the date hereof, Xxxxxxx, Inc., a Delaware
corporation (the "Principal Debtor") entered into that certain Loan Agreement
(the "Loan Agreement") pursuant to which the Lenders have agreed or will
agree to make loans to the Principal Debtor in the maximum aggregate
principal amount outstanding at any one time of Four Hundred Fifty Million
Dollars ($450,000,000) (the "Loans"), which Loans are to be repaid by the
Principal Debtor in accordance with those certain Bid Loan Notes, Swing Loan
Note and Revolving Credit Notes, each payable to a Lender, true copies of the
forms of which are attached hereto as Exhibit A, by this reference fully
incorporated herein and initialed by the Guarantor (collectively, the
"Notes"); and
WHEREAS, the Loan Agreement, the Notes, the Related Documents and any
other agreements now or hereafter executed and delivered as security for the
Principal Debtor's obligations under the Loan Agreement and/or the Notes
and/or in connection therewith are hereinafter sometimes singly and
collectively referred to as the "Loan Documents"; and
WHEREAS, the Loans are to be used for any lawful purpose and may be used
by the Principal Debtor to make advances to, inter alia, the Guarantor;
WHEREAS, the Principal Debtor owns all of the issued and outstanding
common stock of Prince, Inc., which owns all of the issued and outstanding
common stock of the Guarantor; and
WHEREAS, from and after the closing of the Loans, the Guarantor and the
Principal Debtor will regularly transact business with each other and the
Principal Debtor will provide services and benefits to and for the Guarantor;
and
WHEREAS, the Guarantor and the Principal Debtor have certain common
officers and directors; and
WHEREAS, as a result, the Principal Debtor and the Guarantor (as well as
any Subsidiaries), although separate corporations, are one economic unit and
business entity for all practical purposes and the effective continuance of
the Guarantor's business is dependent on the continuance in business and
success of the Principal Debtor; and
WHEREAS, the Guarantor acknowledges that the Lenders, as a condition
precedent to the making of the Loans, have required the execution of this
Guaranty by the Guarantor and that the Lenders are relying upon same in
making the Loans;
WHEREAS, the Guarantor deems it to be to the Guarantor's business and
financial advantage and benefit and in furtherance of its corporate purposes
to execute this Guaranty; and
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Guarantor agrees as follows:
1. The Guarantor hereby absolutely and unconditionally guarantees,
irrespective of the validity or enforceability of the Notes, or any Loan
Documents or security therefor, (i) the due and punctual payment in full of
the principal, interest and other sums due and to become due (and not merely
the collectibility) from the Principal Debtor to any and all of the Lenders
and/or the Agent (whether as Agent or in its individual capacity) pursuant to
the Notes or any of the other Loan Documents, whether now existing or
hereafter arising, whether direct, indirect, absolute or contingent, due or
to become due, whether otherwise guaranteed or secured and whether on open
account or evidenced or acquired in any way; and (ii) the due and punctual
performance of and compliance with all of the terms, conditions and covenants
contained in each of the Loan Documents to be performed or complied with by
the Principal Debtor and the accuracy of the Principal Debtor's
representations and warranties contained in each of the Loan Documents; all
of such guaranteed obligations, indebtedness and liability being hereinafter
sometimes referred to as the "Obligations." This Guaranty is in no way
conditioned upon any requirement that the Agent or any of the Lenders first
attempt to collect any of the Obligations from the Principal Debtor or resort
to any security or other means of obtaining payment of any of the Obligations
which the Agent and/or any Lender now has or may acquire after the date
hereof, or upon any other contingency whatsoever. This Guaranty shall remain
in full force and effect regardless of any exoneration, reimbursement or
indemnification given or not given by the Principal Debtor to the Guarantor
or any other guarantor of any of the Obligations.
2. The Guarantor covenants and agrees that the Obligations will be
paid strictly in accordance with their respective terms regardless of any
law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Agent or any Lender with
respect thereto.
3. All payments hereunder shall be made without any counter-claim or
set-off, free and clear of, and without reduction by reason of, any taxes,
levies, imposts, charges and withholdings, restrictions or conditions of any
nature other than such withholding and other charges of the type as are
permitted under the Loan Documents ("Taxes"), which are now or may hereafter
be imposed, levied or assessed by any country, political subdivision or
taxing authority, all of which will be for the account of and paid by the
Guarantor. If for any reason, any such reduction is made or any Taxes are
paid by any Lender, Guarantor will pay to such Lender such additional
amounts, other than such withholding and other charges of the type as are
permitted under the Loan Documents, as may be necessary to ensure that such
Lender receives the same net amount which it would have received had no
reduction been made or Taxes paid.
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4. Except to the extent prohibited by law, the Guarantor expressly
waives the following: (i) presentment and demand for payment or performance
of any of the Obligations or this Guaranty, protest, notice of protest and
notice of default under any of the Loan Documents or hereunder or of dishonor
or nonpayment of any instrument evidencing the Obligations, and any other
notice or demand required by law and lawfully waivable by Guarantor and not
otherwise explicitly required hereunder; and (ii) any defenses otherwise
available to a surety or guarantor; any right to require suit against
Principal Debtor or any other party before enforcing this Guaranty.
Notwithstanding any payment or payments made by the Guarantor hereunder, or
any set-off or application of funds of the Guarantor by Agent or any Lender,
the Guarantor shall not be entitled to be subrogated to any of the rights of
Agent or any Lender against the Principal Debtor or against any collateral
security or guarantee or right of offset held by Agent or any Lender for the
payment of the Obligations, nor shall the Guarantor seek or be entitled to
seek any contribution or reimbursement from the Principal Debtor in respect
of payments made by the Guarantor hereunder, until all amounts owing to Agent
and the Lenders by the Principal Debtor on account of the Obligations are
paid in full and each Commitment is terminated. If any amount shall be paid
to the Guarantor on account of such subrogation rights at any time when all
of the Obligations shall not have been paid in full, such amount shall be
held by the Guarantor in trust for Agent and the Lenders, segregated from
other funds of the Guarantor, and shall, forthwith upon receipt by the
Guarantor, be turned over to Agent in the exact form received by the
Guarantor (duly endorsed by the Guarantor to Agent, if required), to be
applied against the Obligations, whether matured or unmatured, in such order
provided for in the Loan Agreement.
5. The Guarantor hereby consents and agrees that renewals and
extensions of time of payment, surrender, release, exchange, substitution,
dealing with or taking of collateral security, making advances to perform
Obligations then in default, taking or releasing other guarantees, assignment
or transfer of the Notes and any other Loan Documents, including this
Guaranty, abstaining from taking guarantees, waivers of any defaults, rights
or remedies and any and all other forbearances or indulgences granted to
Principal Debtor or any other party may be made, granted and/or effected
without notice to the Guarantor and without in any manner affecting the
Guarantor's liability hereunder.
6. The Guarantor agrees that Guarantor shall remain bound under this
Guaranty and that the Guarantor's obligations hereunder shall not be
discharged, modified or in any way limited by the recovery of any judgment
against the Principal Debtor or any other obligor for the Obligations, any
action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor except
for final payment and performance in full of all of the Obligations in
accordance with their respective terms and in accordance with this Guaranty.
Guarantor further agrees that the invalidity, irregularity or
unenforceability of all or any part of the Obligations or any security
therefor shall not affect, impair or be a defense to this Guaranty or
discharge, modify or in any way limit the liability of the Guarantor
hereunder. No modification, release, limitation or rendering void of the
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liabilities of Principal Debtor or of any other guarantor(s) of Obligations
which occurs in or as a result of the operation of any existing or future
federal or state laws affecting the rights of creditors, including without
limitation the Federal Bankruptcy Code, shall discharge, modify or in any way
limit the Guarantor's liability hereunder. If at any time all or any part of
any payment previously received by the Agent and/or one or more of the
Lenders and applied by the recipient to any of the Obligations must be
returned by the recipient or paid by the recipient to any third party for any
reason, whether as a result of a court order, administrative order,
settlement or otherwise, (including, without limitation, an order or
settlement in a bankruptcy proceeding involving the Principal Debtor) the
Guarantor is and shall remain liable hereunder for the full amount returned
as if such amount had never been received by the recipient, notwithstanding
any termination of this Guaranty or the cancellation of any of the Notes, or
Loan Documents or any other instrument or other agreement evidencing any or
all of the Obligations.
7. Any notice to the Guarantor by the Agent or any of the Lenders at
any time shall not imply that such notice or any further or similar notice
was or is required. Any notice, demand, request or other communication given
hereunder or in connection herewith (the "Notices") shall be deemed
sufficient if in writing including telegraphic, telexed or telecopied
communication, mailed, telegraphed, telexed or telecopied to the party to
receive such Notice c/x Xxxxxxx, Inc., 0000 Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxx Xxxxxx 00000 or at such other address as such party may
hereafter designate by Notice given in like fashion. Notices shall be deemed
given when received.
8. The Guarantor further agrees to pay and/or reimburse the Agent and
each Lender for any and all reasonable costs, expenses and reasonable
attorneys' fees paid or incurred by the Agent or any such Lender (including
the allocated costs of staff counsel, provided that any allocation of such
costs is made in accordance with the relevant Lender's customary practice and
is without duplication of the expense of any outside counsel for the relevant
Lender for the relevant matter, there being a general understanding or
presumption that the hourly rates and time charges for in-house counsel will
not exceed those charged by outside counsel) in enforcing or collecting or
endeavoring to enforce or collect the Obligations or in enforcing or
endeavoring to enforce this Guaranty. All accounts, deposits and property of
the Guarantor, with or in the hands of the Agent or any of the Lenders,
shall, while an Event of Default exists, be and stand pledged as collateral
security for the Obligations and the Agent and each Lender shall have the
same right of set-off with respect to the deposits and other credits of the
Guarantor as any of them has with respect to deposits and other credits of
the Principal Debtor pursuant to Section 2.05(B) and Article VII of the Loan
Agreement, and the Agent and each Lender shall have the same obligation to
give notices to the Lenders, the Agent and the Guarantor as any of them has
to give like notices to the Lenders, the Agent and the Principal Debtor
pursuant to Section 2.05(B) and Article VII of the Loan Agreement.
9. The Guarantor agrees that any and all existing or future
indebtedness, liability or obligations of Principal Debtor to Guarantor are
and shall be fully subordinated to the Obligations until payment and/or
performance of the Obligations in full so that during the continuance of any
Default or Event of Default under any of the Loan Documents the Guarantor
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shall not be entitled to receive any amount due on any such indebtedness,
liability or obligation of the Principal Debtor to the Guarantor and in any
event the Guarantor shall not accelerate same or exercise any remedies
thereunder unless the Agent and/or any of the Lenders do so.
10. During the continuance of an Event of Default under any of the
Obligations, all Obligations shall, for the purpose of this Guaranty, be
deemed at the Agent's election (upon notice to the Guarantor) to have become
immediately due and payable. Upon occurrence of an Event of Default under
Section 6.01(B) or (C) of the Loan Agreement all Obligations shall, for the
purpose of this Guaranty, thereupon automatically be immediately due and
payable.
11. The Guarantor further covenants and agrees that during such time as
this Guaranty is in effect the Guarantor will not, without the prior written
consent of the Agent, incur any Indebtedness for Borrowed Money to any third
party except Indebtedness for Borrowed Money which would be permitted to
exist under the terms of the Loan Agreement. In the event of any breach of
said covenants and agreements, all Obligations, regardless of their terms,
shall at the Agent's election be deemed for the purposes of this Guaranty to
have become matured, and, at the Agent's election, the Guarantor shall
promptly pay to the Agent the entire amount of the Obligations, and the Agent
may take any action deemed necessary or advisable to enforce this Guaranty.
12. The Guarantor consents and agrees to and ratifies and confirms all
terms, covenants, promises, agreements or other provisions of the Loan
Agreement which expressly or by implication apply to it.
13. All rights and remedies afforded to the Agent and/or any of the
Lenders by reason of this Guaranty, the Loan Documents, or by law are
separate and cumulative and the exercise of one shall not in any way limit or
prejudice the exercise of any other such rights or remedies. No delay or
omission by the Agent and/or any of the Lenders in exercising any such right
or remedy shall operate as a waiver thereof. No waiver of any rights or
remedies hereunder, and no modification or amendment hereof, shall be deemed
made by the Agent and/or any Lender unless in writing and duly signed by the
Agent. Any such written waiver shall apply only to the particular instance
specified therein and shall not impair the further exercise of such right or
remedy or of any other right or remedy by the Agent and/or any of the
Lenders, and no single or partial exercise of any right or remedy hereunder
shall preclude any other or further exercise thereof or of any other right or
remedy.
14. Except to the extent prohibited by law, the Guarantor irrevocably:
(i) agrees that any suit, action, or other legal proceeding
arising out of this Guaranty may be brought in the courts of record of
any of The Commonwealth of Massachusetts, the State of New York or the
State of Delaware, or any state or jurisdiction in which any assets of
the Guarantor may then be located or the courts of the United States
located in any of such states;
(ii) consents to the jurisdiction of each such court in any such
suit, action or proceeding; and
(iii) waives any objection which it may have to the laying of
venue of such suit, action or proceeding in any such courts.
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NO PARTY TO OR BENEFICIARY OF THIS INSTRUMENT, INCLUDING BUT NOT LIMITED
TO ANY ASSIGNEE OR SUCCESSOR OF A PARTY, SHALL SEEK A JURY TRIAL IN ANY
LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE BASED
UPON, OR ARISING OUT OF, THIS AGREEMENT, THE NOTES, THE SECURITY DOCUMENTS OR
ANY OF THE OTHER DOCUMENTS, INSTRUMENTS AND AGREEMENTS ENTERED INTO IN
CONNECTION HEREWITH OR THEREWITH OR THE DEALINGS OR THE RELATIONSHIP BETWEEN
OR AMONG THE PARTIES HERETO, OR ANY OF THEM. NO PARTY WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY
OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE
PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED BY THE PARTIES HERETO,
AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY
WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS
PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
For such time as the Obligations shall be unpaid in whole or in part
and/or a Commitment shall be in effect in whole or in part, the Guarantor
irrevocably designates its registered agent for service of process in each
state or jurisdiction in which any suit, action or legal proceeding may be
brought under this Agreement, and, in the absence thereof, the Secretary of
State or other like authority if such jurisdiction has no Secretary of State
or whichever state or other jurisdiction any such suit, action or proceeding
may be brought hereunder in the jurisdiction or state in which any such
action, suit or proceeding is filed, as its agent to accept and acknowledge
on its behalf service of any and all process in any such suit, action or
proceeding brought in any such court and agrees and consents that any such
service of process upon such agent and written notice of such service to the
Guarantor by registered or certified mail shall be taken and held to be valid
personal service upon the Guarantor regardless of where the Guarantor shall
then be doing business and that any such service of process shall be of the
same force and validity as if service were made upon the Guarantor according
to the laws governing the validity and requirements of such service in each
such state and waives any claim or lack of personal service or other error by
reason of any such service. Any notice, process, pleadings or other papers
served upon the aforesaid agent for service of process shall, within three
(3) Business Days thereafter, be sent by certified or registered mail to the
Guarantor at its address first set forth above and to Xxxxx X. Xxxxxxx, Esq.,
at Xxxxxxx & Xxxxxx, LLP, 0000 XxxxXxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx
00000 or, if he is not then an active member of said firm, to any other
active member of said firm at said address.
15. The Guarantor hereby represents, warrants, and covenants to the
Agent and the Lenders that:
15.1 The Guarantor is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, and has the corporate power and authority to own its property,
conduct its business as now being conducted and to make and perform this
Guaranty and the transactions contemplated hereby, and is duly qualified to
do business and in good standing as a foreign corporation in each
jurisdiction where the nature and extent of the business conducted by it, or
property owned by it, and applicable law require such qualification, except
where the failure to so qualify would not have a Material Adverse Effect.
15.2 The execution, delivery and performance of this Guaranty have
been duly authorized by all necessary corporate action and will not violate
any provision of law or any order of any court or governmental agency or the
certificate of incorporation or other incorporation papers or bylaws of the
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Guarantor, or conflict with, or result in a breach of, or constitute (with or
without notice or lapse of time or both) a default under, or result in the
creation of any security interest, lien, charge or encumbrance upon any
property or assets of the Guarantor, pursuant to any agreement, indenture or
other instrument to which it is a party or by which it may be bound.
15.3 Except as disclosed to the Agent and the Lenders in writing
prior to the execution hereof, no action, suit, investigation or proceeding
is pending or known to be threatened against or affecting the Guarantor
which, if adversely determined, would have a Material Adverse Effect.
15.4 The Guarantor is not in default under any provision of its
certificate of incorporation or other incorporation papers, by-laws or stock
provisions or any amendment of any thereof or of any indenture relating to
Borrowed Money or material agreement to which it is a party or by which it is
bound or of any other indenture or of any order, material regulation,
material ruling or material requirement of a court or public body or
authority by which it is bound, except such defaults which, in the aggregate,
would not have a Material Adverse Effect.
15.5 No license, consent or approval of, or filing with, any
governmental body or other regulatory authority is required for the making
and performance of this Guaranty or any instrument or transaction
contemplated herein. The Guarantor holds all certificates and authorizations
of all governmental agencies and authorities required by law to enable it to
engage in the business currently transacted by it, except such certificate
and authorizations as to which the failure to so hold would not, in the
aggregate, have a Material Adverse Effect.
15.6 The Guarantor hereby makes all of the representations and
warranties set forth in the Loan Agreement relating to the Guarantor, and
each of such representations and warranties is hereby incorporated herein by
reference.
15.7 All representations and warranties made herein shall survive
until payment in full of all of the Obligations.
16. This Guaranty shall operate as a continuing guaranty and shall be
binding upon the Guarantor and Guarantor's successors and assigns and shall
inure to the benefit of the Agent and each of the Lenders and their
successors and assigns, including, without limitation, any successor agent
appointed pursuant to the Loan Agreement. This Guaranty shall be construed
under the laws of the State of New York.
17. When all of the Obligations then outstanding have been finally paid
in full and no Lender is committed to extend any credit pursuant to the Loan
Agreement, this Guaranty shall, subject to paragraph 6, above, cease and
terminate, and at the Guarantor's written request, accompanied by such
certificates and proofs as the Agent shall reasonably deem necessary, on the
demand and at the cost and expense of the Guarantor, the Agent or the
Lenders, as the case may be, shall execute proper instruments, acknowledging
satisfaction and discharge of this Guaranty.
18. Capitalized terms used herein and not expressly defined herein
shall have the respective meanings assigned thereto in the Loan Agreement.
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19. The Guarantor hereby agrees, as between itself and each of the
other Guarantors, that if any other Guarantor shall become an Excess Funding
Guarantor (as defined below) by reason of the payment by such Excess Funding
Guarantor of any Obligations, the Guarantor shall, on demand of such Excess
Funding Guarantor (but subject to the next sentence), pay to such Excess
Funding Guarantor an amount equal to the Guarantor's Pro Rata Share (as
defined below and determined, for this purpose, without reference to the
properties, debts and liabilities of such Excess Funding Guarantor and
without reference to the properties, debts and liabilities of any Guarantor
that has paid its Pro Rata Share of such Obligations) of the Excess Payment
(as defined below) in respect of such Obligations. The payment obligation of
the Guarantor to any Excess Funding Guarantor under this paragraph shall be
subordinate and subject in right of payment to the prior payment in full of
the obligations of the Guarantor under the other provisions of this Guaranty,
and as an Excess Funding Guarantor, it shall not exercise any right or remedy
with respect to such excess until payment and satisfaction in full of all of
such obligations.
For purposes of this paragraph, (i) "Excess Funding Guarantor" means, in
respect of any Obligations, a Guarantor that has paid an amount in excess of
its Pro Rata Share of such Obligations, (ii) "Excess Payment" means, in
respect of any Obligations, the amount paid by an Excess Funding Guarantor in
excess of its Pro Rata Share of such Obligations and (iii) "Pro Rata Share"
means, for any Guarantor, the ratio (expressed as a percentage) of (x) the
amount by which the aggregate present fair saleable value of all properties
of such Guarantor (excluding any shares of stock of any other Guarantor)
exceeds the amount of all the debts and liabilities of such Guarantor
(including contingent, subordinated, unmatured and unliquidated liabilities,
but excluding the obligations of the Guarantor hereunder and any obligations
of any other Guarantor that have been guaranteed by the Guarantor) to (y) the
amount by which the aggregate fair saleable value of all properties of all of
the Guarantors (excluding any duplication due to ownership of shares of stock
of any Guarantor) exceeds the amount of all the debts and liabilities
(including contingent, subordinated, unmatured and unliquidated liabilities,
but excluding the obligations of the Principal Debtor under the Loan
Agreement and the Guarantors under their respective Guaranties) of all of the
Guarantors, determined (A) with respect to any other Guarantor that is a
party to a Subsidiary Guaranty on the date hereof, and (B) with respect to
any other Guarantor, as of the date such Guarantor executes and delivers a
Subsidiary Guaranty.
20. In any action or proceeding involving any state corporate law, or
any state or Federal bankruptcy, insolvency, reorganization or other law
affecting the rights of creditors generally, if the obligations of the
Guarantor under this Guaranty would otherwise, taking into account the
provisions of Paragraph 19, be held or determined to be void, invalid or
unenforceable, or subordinated to the claims of any other creditors, on
account of the amount of its liability hereunder, then, notwithstanding any
other provision hereof to the contrary, the amount of such liability shall,
without any further action by the Guarantor, or any other Person, be
automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed under seal on its behalf as of the date first written above.
Witness: XXXXXXX OF MISSISSIPPI, INC.
/s/ Xxxxxxx X. Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Vice President
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EXHIBIT A
Forms of Bid Notes, Swing Loan Notes
and Revolving Credit Notes
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