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EXHIBIT 10(ii)
GUARANTY AND SURETYSHIP AGREEMENT
(PARTNERSHIP GUARANTY)
This Agreement (the "Agreement") dated as of October 21, 1997, is made and
given by Abbingdon Venture Partners Limited Partnership - II, a Delaware limited
partnership ("Abbingdon Partners - II"), and Abbingdon Venture Partners Limited
Partnership - III, a Delaware limited partnership ("Abbingdon Partners - III")
(Abbingdon Partners - II and Abbingdon Partners - III are referred to
collectively to as the "Guarantors" and individually as a "Guarantor") in favor
of PNC Bank, National Association (the "Bank") pursuant to that certain
Discretionary Line of Credit Letter Agreement dated as of even date herewith (as
it may hereinafter from time to time be amended, restated, modified or
supplemented, the "Discretionary Line Agreement") agreed to and accepted by
Valley Forge Dental Associates, Inc., a Delaware corporation (the "Borrower"),
each Subsidiary of the Borrower identified on Schedule 1 of the Discretionary
Line Agreement, the Guarantors and the Bank.
W I T N E S S E T H:
WHEREAS, the Loan Parties have agreed to and accepted the Discretionary
Line Agreement; and
WHEREAS, this Agreement is made by the Guarantors among other things to
induce the Bank to consider requests for loan advances pursuant to the
Discretionary Line Agreement; and
WHEREAS, the business and investments of the Loan Parties are
interdependent and loans, if any, made to the Borrower pursuant to the
Discretionary Line Agreement are with the expectation that the profits and other
opportunities from such businesses and investments will directly or indirectly
inure to the benefit of each Guarantor, each other Loan Party and to all of them
taken as an affiliated group.
NOW, THEREFORE, in consideration of the premises, and intending to be
legally bound, the Guarantors hereby agree as follows:
1. DEFINITIONS
1.1 Definitions. Capitalized terms used herein and not otherwise defined
herein shall have such meanings as given to them in the Discretionary Line
Agreement. In addition to the other terms defined elsewhere in this Agreement,
the following terms shall have the following meanings:
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"Guaranteed Obligations" shall mean all obligations from time to
time of the Borrower to the Bank under or in connection with the
Discretionary Line Agreement, the Demand Note dated the date of this
Agreement in the face amount of $10,000,000 of the Borrower in favor of
the Bank (the "Note"), or any other Loan Document or which arise in any
other manner, whether for principal, interest, fees, indemnities, expenses
or otherwise, and all refinancings or refundings thereof, whether such
obligations are direct or indirect, otherwise secured or unsecured,
absolute or contingent, due or to become due, whether for payment or
performance, now existing or hereafter arising (specifically including but
not limited to obligations arising or accruing after the commencement of
any bankruptcy, insolvency, reorganization or similar proceeding with
respect to the Borrower, any other Loan Party or any other individuals or
entities including any Guarantor (a "Person") or which would have arisen
or accrued but for the commencement of such proceeding, even if the claim
for such obligation is not enforceable or allowable in such proceeding).
Without limitation of the foregoing, such obligations include all
obligations arising from any extensions of credit under or in connection
with the Loan Documents from time to time, regardless of whether any such
extensions of credit are in excess of the amount set forth under or
contemplated by the Loan Documents or are made in circumstances in which
any condition to extension of credit is not satisfied. Without limitation
of the foregoing, the Bank (or any successive assignee or transferee) from
time to time may assign or otherwise transfer all of its rights and
obligations under the Loan Documents (including, without limitation, all
of any option to extend credit), or any other Guaranteed Obligations, to
any other Person, and such Guaranteed Obligations (including, without
limitation, any Guaranteed Obligations resulting from extension of credit
by such other Person under or in connection with the Loan Documents) shall
be and remain Guaranteed Obligations entitled to the benefit of this
Agreement.
2. GUARANTY AND SURETYSHIP
2.1 Guaranty and Suretyship. Subject to the limitations set forth in
Section 4.17 hereof, the Guarantors hereby absolutely, unconditionally and
irrevocably guarantee and become surety for the full and punctual payment and
performance of the Guaranteed Obligations. This Agreement is an agreement of
suretyship as well as of guaranty, is a guarantee of payment and performance and
not merely of collectibility, and is in no way conditioned upon any attempt to
collect from or proceed against the Borrower or any other Persons or any other
event or circumstance. The obligations of the Guarantors under this Agreement
are direct and primary obligations of each Guarantor and are independent of the
Guaranteed Obligations, and a separate action or actions may be brought against
any one or more of the Guarantors regardless of whether action is brought
against the Borrower, any other Guarantor or any other Persons or whether the
Borrower, any other Guarantor or any other Persons are joined in any such action
or actions.
2.2 Obligations Absolute. The Guarantors agree that the Guaranteed
Obligations will be paid and performed strictly in accordance with the terms of
the Loan Documents, regardless of any Law, regulation or order now or hereafter
in effect in any jurisdiction affecting the
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Guaranteed Obligations, any of the terms of the Loan Documents or the rights of
the Bank or any other Person with respect thereto. The obligations of the
Guarantors under this Agreement shall be absolute, unconditional and
irrevocable, irrespective of any of the following:
(a) Any lack of genuineness, legality, validity, enforceability or
allowability (in a bankruptcy, insolvency, reorganization or similar proceeding,
or otherwise), or any avoidance or subordination, in whole or in part, of any
Loan Document or any of the Guaranteed Obligations.
(b) Any increase, decrease or change in the amount, nature, type or
purpose of any of the Guaranteed Obligations (whether or not contemplated by the
Loan Documents as presently constituted); any change in the time, manner, method
or place of payment or performance of, or in any other term of, any of the
Guaranteed Obligations; any execution or delivery of any additional Loan
Documents; or any amendment, modification or supplement to, or refinancing or
refunding of, any Loan Document or any of the Guaranteed Obligations.
(c) Any extensions of credit in excess of the amount committed under
or contemplated by the Loan Documents, or in circumstances in which any
condition to such extensions of credit has not been satisfied; any other
exercise or non-exercise, or any other failure, omission, breach, default, delay
or wrongful action in connection with any exercise or non-exercise, of any right
or remedy against the Borrower or any other Persons under or in connection with
any Loan Document or any of the Guaranteed Obligations; any refusal of payment
or performance of any of the Guaranteed Obligations, whether or not with any
reservation of rights against any Guarantor; or any application of collections
(including but not limited to collections resulting from realization upon any
direct or indirect security for the Guaranteed Obligations) to other
obligations, if any, not entitled to the benefits of this Agreement, in
preference to Guaranteed Obligations entitled to the benefits of this Agreement,
or if any collections are applied to Guaranteed Obligations, any application to
particular Guaranteed Obligations.
(d) Any taking, exchange, amendment, modification, supplement,
termination, subordination, release, loss or impairment of, or any failure to
protect, perfect, or preserve the value of, or any enforcement of, realization
upon, or exercise of rights, or remedies under or in connection with, or any
failure, omission, breach, default, delay or wrongful action by the Bank, or any
other Person in connection with the enforcement of, realization upon, or
exercise of rights or remedies under or in connection with, or, any other action
or inaction by the Bank, or any other Person in respect of, any direct or
indirect security for any of the Guaranteed Obligations. As used in this
Agreement, "direct or indirect security" for the Guaranteed Obligations, and
similar phrases, includes but is not limited to any collateral security,
guaranty, suretyship, letter of credit, capital maintenance agreement, put
option, subordination agreement or other right or arrangement of any nature
providing direct or indirect assurance of payment or performance of any of the
Guaranteed Obligations, made by or on behalf of any Person.
(e) Any merger, consolidation, liquidation, dissolution, winding-up,
charter revocation or forfeiture, or other change in, restructuring or
termination of the corporate structure or existence of, the Borrower or any
other Persons; any bankruptcy, insolvency, reorganization or
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similar proceeding with respect to the Borrower or any other Persons; or any
action taken or election made by the Bank, (including but not limited to any
election under Section 1111(b)(2) of the United States Bankruptcy Code), the
Borrower or any other Persons in connection with any such proceeding.
(f) Any defense, setoff or counterclaim (excluding only the defense
of full, strict and indefeasible payment and performance), which may at any time
be available to or be asserted by the Borrower or any other Persons with respect
to any Loan Document or any of the Guaranteed Obligations; or any discharge by
operation of law or release of the Borrower or any other Persons from the
performance or observance of any Loan Document or any of the Guaranteed
Obligations.
(g) Any other event or circumstance, whether similar or dissimilar
to the foregoing, and whether known or unknown, which might otherwise constitute
a defense available to, or limit the liability of, any Guarantor, a guarantor or
a surety, excepting only full, strict and indefeasible payment and performance
of the Guaranteed Obligations in full.
2.3 Waivers, etc. The Guarantors hereby waive any defense to or limitation
on their obligations under this Agreement arising out of or based on any event
or circumstance referred to in Section 2.2 hereof. Without limitation, the
Guarantors waive each of the following:
(a) All notices, disclosures and demands of any nature which
otherwise might be required from time to time to preserve intact any rights
against any Guarantor, including without limitation the following: any notice of
any event or circumstance described in Section 2.2 hereof; any notice required
by any Law, regulation or order now or hereafter in effect in any jurisdiction;
any notice of nonpayment, nonperformance, dishonor, or protest under any Loan
Document or any of the Guaranteed Obligations; any notice of the incurrence of
any Guaranteed Obligation; any notice of any default or any failure on the part
of the Borrower or any other Persons to comply with any Loan Document or any of
the Guaranteed Obligations or any direct or indirect security for any of the
Guaranteed Obligations; and any notice of any information pertaining to the
business, operations, condition (financial or otherwise) or prospects of the
Borrower or any other Persons.
(b) Any right to any marshalling of assets, to the filing of any
claim against the Borrower or any other Persons in the event of any bankruptcy,
insolvency, reorganization or similar proceeding, or to the exercise against the
Borrower or any other Persons of any other right or remedy under or in
connection with any Loan Document or any of the Guaranteed Obligations or any
direct or indirect security for any of the Guaranteed Obligations; any
requirement of promptness or diligence on the part of the Bank, or any other
Person; any requirement to exhaust any remedies under or in connection with, or
to mitigate the damages resulting from default under, any Loan Document or any
of the Guaranteed Obligations or any direct or indirect security for any of the
Guaranteed Obligations; any benefit of any statute of limitations; and any
requirement of acceptance of this Agreement, and any requirement that any
Guarantor receive notice of such acceptance.
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(c) Any defense or other right arising by reason of any law now or
hereafter in effect in any jurisdiction pertaining to election of remedies
(including but not limited to anti-deficiency laws, "one action" laws or the
like), or by reason of any election of remedies or other action or inaction by
the Bank, (including but not limited to commencement or completion of any
judicial proceeding or nonjudicial sale or other action in respect of collateral
security for any of the Guaranteed Obligations), which results in denial or
impairment of the right of the Bank to seek a deficiency against the Borrower or
any other Persons or which otherwise discharges or impairs any of the Guaranteed
Obligations.
2.4 Reinstatement. This Agreement shall continue to be effective, or be
automatically reinstated, as the case may be, if at any time payment of any of
the Guaranteed Obligations is avoided, rescinded or must otherwise be returned
by the Bank for any reason (including, without limitation, by reason of such
payment being a preference, fraudulent transfer or fraudulent conveyance), all
as though such payment had not been made.
2.5 No Stay. Without limitation of any other provision of this Agreement,
if any exercise or condition to exercise of rights or remedies under or with
respect to any Guaranteed Obligation shall at any time be stayed, enjoined or
prevented for any reason (including but not limited to stay or injunction
resulting from the pendency against the Borrower or any other Persons of a
bankruptcy, insolvency, reorganization or similar proceeding), the Guarantors
agree that, for the purposes of this Agreement and their obligations hereunder,
the Guaranteed Obligations shall be deemed to have been requested and such other
exercise or conditions to exercise shall be deemed to have been taken or met.
2.6 Payments. All payments to be made by any Guarantor pursuant to this
Agreement shall be made without setoff, counterclaim, withholding or other
deduction of any nature.
2.7 Continuing Guaranty. This Agreement is a continuing agreement and
shall continue in full force and effect (notwithstanding that no Guaranteed
Obligations may be outstanding from time to time, or any other event or
circumstance) until all Guaranteed Obligations and all other amounts payable
under this Agreement have been paid and performed in full, subject in any event
to reinstatement in accordance with Section 2.4 hereof. Any purported
termination, revocation or discharge of this Agreement shall be void and of no
effect. For purposes of this Agreement, the Guaranteed Obligations shall not be
deemed to have been paid in full until the Bank shall have indefeasibly received
payment of the Guaranteed Obligations in full and in cash.
3. REPRESENTATIONS AND WARRANTIES
Each Guarantor hereby represents and warrants to the Bank with respect to
itself as follows:
3.1 No Reliance. The Guarantor has, independently and without reliance
upon the Bank, and based upon such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement.
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3.2 Partnership Agreement. The Guarantor has provided to the Bank a true
and correct copy of the Agreement of Limited Partnership of the Guarantor
together with all amendments thereto.
4. MISCELLANEOUS
4.1 Amendments, etc. No amendment to or waiver of any provision of this
Agreement, and no consent to any departure by any Guarantor herefrom, shall in
any event be effective unless in a writing manually signed by or on behalf of
the Bank. Any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
4.2 No Implied Waiver; Remedies Cumulative. No delay or failure of the
Bank in exercising any right or remedy under this Agreement shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right or
remedy preclude any other or further exercise thereof or the exercise of any
other right or remedy. The rights and remedies of the Bank under this Agreement
are cumulative and not exclusive of any other rights or remedies available
hereunder, under any other agreement or instrument, by law, or otherwise.
4.3 Notices. Each Guarantor agrees that all notices, statements, requests,
demands and other communications under this Agreement shall be given to such
Guarantor at the address set forth below the signature line for the Guarantors
to the Discretionary Line Agreement on the signature page thereof. The Bank may
rely on any notice (whether or not made in a manner contemplated by this
Agreement) purportedly made by or on behalf of a Guarantor, and the Bank shall
have no duty to verify the identity or authority of the Person giving such
notice.
4.4 Expenses. Each Guarantor agrees unconditionally upon demand to pay or
reimburse to the Bank, and to save the Bank harmless against liability for the
payment of, all reasonable out-of-pocket costs, expenses and disbursements
(including reasonable fees and expenses of counsel for the Bank) incurred by the
Bank, (i) in connection with the administration and interpretation of this
Agreement and any other instruments and documents delivered hereunder, (ii)
relating to any amendments, waivers or consents pursuant to the provisions
hereof, (iii) in connection with the enforcement of this Agreement or collection
of amounts due hereunder or thereunder or the proof and allowability of any
claim arising under this Agreement whether in bankruptcy or receivership
proceedings or otherwise, and (iv) in any workout or restructuring or in
connection with the protection, preservation, exercise or enforcement of any of
the terms hereof or of any rights hereunder or in connection with any
foreclosure, collection or bankruptcy proceedings.
4.5 Prior Understandings. This Agreement constitutes the entire agreement
of the parties hereto with respect to the subject matter hereof and supersedes
all prior and contemporaneous understandings and agreements.
4.6 Survival. All representations and warranties of the Guarantors
contained in or made in connection with this Agreement shall survive, and shall
not be waived by, the execution
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and delivery of this Agreement, any investigation by or knowledge of the Bank,
any extension of credit, or any other event or circumstance whatsoever.
4.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument.
4.8 Setoff. The Bank shall have the right from time to time, without
notice to any Guarantor, to set off against and apply to such due and payable
amount any obligation of any nature of the Bank to any Guarantor, including but
not limited to all deposits (whether time or demand, general or special,
provisionally credited or finally credited, however evidenced) now or hereafter
maintained by any Guarantor with the Bank. The Bank agrees promptly to notify
the Borrower on behalf of the Guarantors after any such set-off and application,
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. Such right shall be absolute and
unconditional in all circumstances and, without limitation, shall exist whether
or not the Bank shall have given any notice under this Agreement or under such
obligation to such Guarantor, whether such obligation to such Guarantor is
absolute or contingent, matured or unmatured (it being agreed that the Bank may
deem such obligation to be then due and payable at the time of such setoff), and
regardless of the existence or adequacy of any collateral, guaranty or other
direct or indirect security, right or remedy available to the Bank. The rights
of the Bank under this Section are in addition to such other rights and remedies
(including, without limitation, other rights of setoff and banker's lien) which
the Bank may have, and nothing in this Agreement or in any other Loan Document
shall be deemed a waiver of or restriction on the right of setoff or banker's
lien of the Bank. The Guarantors hereby agree that, to the fullest extent
permitted by Law, any affiliate of the Bank and any holder of a participation in
any obligation of any Guarantor under this Agreement, shall have the same rights
of setoff as the Bank as provided in this Section 4.8 (regardless of whether
such affiliate or participant otherwise would be deemed a creditor of such
Guarantor).
4.9 Construction. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect interpretation of
this Agreement in any respect. This Agreement has been fully negotiated between
the applicable parties, each party having the benefit of legal counsel, and
accordingly neither any doctrine of construction of guaranties or suretyships in
favor of the guarantor or surety, nor any doctrine of construction of
ambiguities in agreements or instruments against the party controlling the
drafting thereof, shall apply to this Agreement.
4.10 Successors and Assigns. This Agreement shall be binding upon each
Guarantor, its successors and assigns, and shall inure to the benefit of and be
enforceable by the Bank and its successors and assigns. Without limitation of
the foregoing, the Bank (and any successive assignee or transferee), from time
to time may assign or otherwise transfer all or any portion of its rights or
obligations under the Loan Documents or any other Guaranteed Obligations, to any
other Person and such Guaranteed Obligations (including, without limitation, any
Guaranteed Obligations resulting from extension of credit by such other Person
under or in connection with the Loan Documents) shall be and remain Guaranteed
Obligations entitled to the benefit of this Agreement, and to the extent of its
interest in such Guaranteed Obligations such other Person
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shall be vested with all the benefits in respect thereof granted to the Bank in
this Agreement or otherwise.
4.11 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
(a) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
(b) Certain Waivers. EACH GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
(i) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON
ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY STATEMENT, COURSE OF CONDUCT,
ACT, OMISSION, OR EVENT OCCURRING IN CONNECTION HEREWITH OR THEREWITH
(COLLECTIVELY "RELATED LITIGATION") MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT
OF COMPETENT JURISDICTION SITTING IN ALLEGHENY COUNTY, PENNSYLVANIA, SUBMITS TO
THE JURISDICTION OF SUCH COURTS, AND TO THE FULLEST EXTENT PERMITTED BY LAW
AGREES THAT IT WILL NOT BRING ANY RELATED LITIGATION IN ANY OTHER FORUM (BUT
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE BANK TO BRING ANY ACTION, SUIT OR
PROCEEDING IN ANY OTHER FORUM);
(ii) WAIVES ANY OBLIGATION WHICH IT MAY HAVE AT ANY TIME TO
THE LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, WAIVES
ANY CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO ANY RELATED LITIGATION
BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER THE
GUARANTOR;
(iii) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT
OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR CERTIFIED U.S.
MAIL, POSTAGE PREPAID, TO THE GUARANTOR AT THE ADDRESS FOR NOTICES DESCRIBED IN
THIS AGREEMENT, AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN
EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE
VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY
LAW); AND
(iv) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED
LITIGATION.
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(c) Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW,
NO CLAIM MAY BE MADE BY ANY GUARANTOR OR ANY OTHER PERSON AGAINST THE BANK, OR
ANY AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, ATTORNEY OR AGENT OF THE BANK FOR
ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM
ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY STATEMENT, COURSE OF CONDUCT,
ACT, OMISSION, OR EVENT OCCURRING IN CONNECTION HEREWITH (WHETHER FOR BREACH OF
CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY); AND EACH GUARANTOR HEREBY
WAIVES, RELEASES AND AGREES NOT TO ▇▇▇ UPON ANY CLAIM FOR ANY SUCH DAMAGES,
WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS
FAVOR.
4.12 Severability; Modification to Conform to Law.
(a) It is the intention of the parties that this Agreement be
enforceable to the fullest extent permissible under applicable Law, but that the
unenforceability (or modification to conform to such Law) of any provision or
provisions hereof shall not render unenforceable, or impair, the remainder
hereof. If any provision in this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, this Agreement shall, as
to such jurisdiction, be deemed amended to modify or delete, as necessary, the
offending provision or provisions and to alter the bounds thereof in order to
render it or them valid and enforceable to the maximum extent permitted by
applicable Law, without in any manner affecting the validity or enforceability
of such provision or provisions in any other jurisdiction or the remaining
provisions hereof in any jurisdiction.
(b) Without limitation of the preceding subsection (a), to the
extent that mandatory applicable Law (including but not limited to applicable
laws pertaining to fraudulent conveyance or fraudulent transfer) otherwise would
render the full amount of any Guarantor's obligations hereunder invalid or
unenforceable, such Guarantor's obligations hereunder shall be limited to the
maximum amount which does not result in such invalidity or unenforceability.
(c) Notwithstanding anything to the contrary in this Section 4.12 or
elsewhere in this Agreement, this Agreement shall be presumptively valid and
enforceable to its full extent in accordance with its terms, as if this Section
4.12 (and references elsewhere in this Agreement to enforceability to the
fullest extent permitted by Law) were not a part of this Agreement, and in any
related litigation the burden of proof shall be on the party asserting the
invalidity or unenforceability of any provision hereof or asserting any
limitation on any Guarantor's obligations hereunder as to each element of such
assertion.
4.13 Additional Guarantors. At any time after the initial execution and
delivery of this Agreement to the Bank, additional Persons may become parties to
this Agreement and thereby acquire the duties and rights of being Guarantors
hereunder by executing and delivering to the Bank a counterpart signature page
for attachment hereto. No notice of the addition of any Guarantor shall be
required to be given to any pre-existing Guarantor.
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4.14 Capital; Organizational Documents. Each Guarantor expressly covenants
to the Bank as follows: (i) it will at all times maintain uncalled and committed
capital subject to call without any right of set off or counterclaim in
accordance with the provisions of its Agreement of Limited Partnership in an
aggregate amount equal to the sum of (a) the amount of Guaranteed Obligations
for which it is liable; and (b) the amount of all commitments to make future
advances or guarantees pursuant to any agreement to which the Guarantor is a
party or by which it is bound; (ii) it will not amend in any respect its
Agreement of Limited Partnership or other organizational documents without
providing at least thirty (30) calendar days' prior written notice to the Bank
and, in the event such change would be materially adverse to the Bank as
determined by the Bank in its sole discretion obtaining the prior written
consent of the Bank; and (iii) ▇▇▇▇ ▇. ▇▇▇▇▇▇ shall at all times control the
management of and shall own a majority of the equity interests of the general
partner of the Guarantor.
4.15 Reports and Information.
(a) Each Guarantor shall furnish or cause to be furnished to the
Bank, in addition to all other information as the Bank may reasonably request,
as soon as available and in any event within one hundred and twenty (120) days
after the end of each fiscal year, financial statements of such Guarantor
consisting of a balance sheet as of the end of such fiscal year, and related
statements of income, partners' equity and cash flows for the fiscal year then
ended, all in reasonable detail and setting forth in comparative form the
financial statements as of the end of and for the preceding fiscal year, and
certified by Price Waterhouse LLP or other independent certified public
accountants of nationally recognized standing reasonably satisfactory to the
Bank except it is acknowledged that the balance sheet of such financial
statements may include securities which, in accordance with GAAP, will be valued
either at their readily ascertainable market value, or in the absence of readily
ascertainable market value, by the good faith estimate of Abbingdon - II
Partners. The certificate or report of accountants shall be free of
qualifications (other than any consistency qualification that may result from a
change in the method used to prepare the financial statements as to which such
accountants concur and except as noted above with respect to securities for
which there is no readily ascertainable market value) and shall not indicate the
occurrence or existence of any event, condition or contingency which would
materially impair the prospect of payment or performance of any covenant,
agreement or duty of such Guarantor under any of the Loan Documents.
(b) Each Guarantor shall furnish or cause to be furnished to the
Bank, in addition to all other information as the Bank may reasonably request,
as soon as available and in any event within forty-five (45) calendar days after
the end of each fiscal quarter in each fiscal year or other times as the Bank
may reasonably request, a statement setting forth the ratio of (a) the sum of
(i) Guaranteed Obligations for which such Guarantor is liable and (ii) the
amount of all commitments of such Guarantor to make future advances or loans and
all other amounts pursuant to any Guaranty for which such Guarantor is liable,
in either case pursuant to any agreement to which such Guarantor is a party or
by which it is bound as of the end of such fiscal quarter; to (b) cash as of the
end of such fiscal quarter and capital subject to call without right of setoff
or counterclaim as of the end of such fiscal quarter, certified by the Chief
Financial Officer of such Guarantor.
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(c) Concurrently with the financial statements of each Guarantor
furnished to the Bank pursuant to Section (a) above of this Section 4.15, each
Guarantor shall furnish a certificate, signed by the Chief Financial Officer of
such Guarantor, to the effect that, (i) the representations and warranties of
the Guarantor contained in Exhibit B of the Discretionary Line Agreement and in
this Agreement are true on and as of the date of such certificate with the same
effect as though such representations and warranties had been made on and as of
such date (except representations and warranties which expressly relate solely
to an earlier date or time) and (ii) the Guarantor has performed and complied
with all applicable covenants contained in Exhibits C and D of the Discretionary
Line Agreement and this Agreement.
4.16 Nonrecourse. No partner of any Guarantor or any partner of a general
partner of any Guarantor shall have any personal liability for payment of the
Guaranteed Obligations, and in any action or suit to collect the Guaranteed
Obligations, the Bank shall not seek any in personam judgment against any
partner of any Guarantor or any partner of a general partner of any Guarantor or
any judgment for a deficiency against any such partner. Nothing contained in
this Section shall be construed to impair the validity of the Guaranteed
Obligations or this Agreement or affect or impair in any way the right of the
Bank to exercise its rights and remedies under the Discretionary Line Agreement,
the Note and any other Loan Documents in accordance with their terms.
4.17 Limitation of Liability. Notwithstanding anything to the contrary
contained herein, the liability of Abbingdon Partners - II as surety and
guarantor hereunder shall be limited to sixty percent (60%) of the Guaranteed
Obligations and the liability of Abbingdon Partners - III as surety and
guarantor hereunder shall be limited to forty percent (40%) of the Guaranteed
Obligations.
[INTENTIONALLY LEFT BLANK]
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[SIGNATURE PAGE TO THE
GUARANTY AND SURETYSHIP AGREEMENT
(PARTNERSHIP GUARANTY)]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed and delivered as of the date first above written.
GUARANTORS:
ABBINGDON VENTURE PARTNERS LIMITED
PARTNERSHIP - II
By: Abbingdon - II Partners,
general partner of Abbingdon
Venture Partners Limited
Partnership - II
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
__________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
general partner
ABBINGDON VENTURE PARTNERS
LIMITED PARTNERSHIP - III
By: Abbingdon - II Partners,
general partner of Abbingdon
Venture Partners Limited
Partnership - III
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
__________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
general partner
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