EXHIBIT 10.9
AMENDED AND RESTATED SUBSIDIARY GUARANTY AGREEMENT
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This AMENDED AND RESTATED SUBSIDIARY GUARANTY AGREEMENT (as further
amended from time to time, this "Guaranty"), dated as of June 26, 2003, but
effective as of the Effective Date, made by CONCORD CORPORATE SERVICES, INC.
(formerly known as Electronic Payment Services, Inc.), a Delaware corporation,
STAR SYSTEMS, LLC, a Delaware limited liability company and the other entities
that are signatories hereto as a "Guarantor" (together with each Additional
Guarantor becoming a party hereto, being herein collectively referred to as the
"Guarantors") in favor of (i) SUNTRUST BANK, a Georgia banking corporation (the
"Agent"), in its capacity as agent for the financial institutions parties to the
Master Agreement (as hereinafter defined) and each assignee thereof becoming a
"Lender" as provided herein (the "Lenders"), (ii) the Lenders and (iii) SUNTRUST
EQUITY FUNDING, LLC, a Delaware limited liability company (the "Lessor"; the
Lenders, the Agent and the Lessor being collectively referred to herein as the
"Guaranteed Parties");
WITNESSETH:
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WHEREAS, Concord EFS, Inc., a Delaware corporation ("Concord"),
certain subsidiaries of Concord that were parties thereto, as Lessees, the
Guarantors, Atlantic Financial Group, Ltd. ("AFG"), the Lenders and the Agent
have entered into that certain Master Agreement dated as of July 12, 2002 (as
amended prior to the date hereof, the "2002 Master Agreement"), pursuant to
which the Guarantors executed and delivered that certain Subsidiary Guaranty
Agreement, dated as of July 12, 2002 (the "Original Subsidiary Guaranty");
WHEREAS, AFG has transferred its interests in the property acquired
pursuant to the 2002 Master Agreement to Atlantic Equity partners, Ltd, who in
turn has merged into the Lessor, and in connection therewith the 2002 Master
Agreement has been amended and restated pursuant to the Amended and Restated
Master Agreement as of June 26, 2003 (as the same may hereafter be further
amended, restated, supplemented or otherwise modified from time to time, and
including all schedules, riders, and supplements thereto, the "Master
Agreement"; terms defined therein and not otherwise defined herein being used
herein as therein defined) among Concord, the Lessees, the Guarantors, the
Lessor, the Lenders and the Agent;
WHEREAS, it is a condition precedent to the effectiveness of the
Master Agreement that the Guarantors execute and deliver this amendment and
restatement of the Original Subsidiary Guaranty;
WHEREAS, Concord owns, directly or indirectly, all or a majority of
the outstanding capital stock of each of the Guarantors;
WHEREAS, Concord and Guarantors share an identity of interest as
members of a consolidated group of companies engaged in substantially similar
businesses with Concord providing certain centralized financial, accounting and
management services to each of the Guarantors;
WHEREAS, consummation of the transactions pursuant to the Master
Agreement will enhance the overall financial strength and stability of Concord's
entire corporate group, including the Guarantors;
NOW, THEREFORE, in consideration of the premises and in order to
induce the Funding Parties to enter into and perform their obligations under the
Master Agreement and the other Operative Documents, the Guarantors hereby amend
and restate the Original Subsidiary Guaranty in its entirety and jointly and
severally agree as follows:
SECTION 1. Guaranty. The Guarantors hereby jointly and severally,
irrevocably and unconditionally, guarantee the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all Obligations
owing by Concord to the Funding Parties or the Agent, or any of them, under the
Master Agreement, the Lease, the Guaranty Agreement, the Swap Documents and the
other Operative Documents, including, without limitation, all renewals,
extensions, modifications and refinancings thereof, now or hereafter owing,
whether for rent, principal, interest, fees, expenses or otherwise, and any and
all reasonable out-of-pocket expenses (including reasonable attorneys' fees and
expenses) incurred by the Agent in enforcing any rights under this Guaranty
(collectively, the "Guaranteed Obligations"), including without limitation, all
interest which, but for the filing of a petition in bankruptcy with respect to
Concord, would accrue on any principal portion of the Guaranteed Obligations.
Any and all payments by the Guarantors hereunder shall be made free and clear of
and without deduction for any set-off, counterclaim, or withholding so that, in
each case, each Guaranteed Party will receive, after giving effect to any Taxes
(as such term is defined in the Master Agreement, but excluding Taxes imposed on
overall net income of the Guaranteed Party to the same extent as excluded
pursuant to the Master Agreement), the full amount that it would otherwise be
entitled to receive with respect to the Guaranteed Obligations (but without
duplication of amounts for Taxes already included in the Guaranteed
Obligations). The Guarantors acknowledge and agree that this is a guarantee of
payment when due, and not of collection, and that this Guaranty may be enforced
up to the full amount of the Guaranteed Obligations without proceeding against
Concord, against any security for the Guaranteed Obligations, against any other
Guarantor or under any other guaranty covering any portion of the Guaranteed
Obligations.
SECTION 2. Guaranty Absolute. The Guarantors guarantee that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Operative Documents, regardless of any law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of any
Guaranteed Party with respect thereto. The liability of each Guarantor under
this Guaranty shall be absolute and unconditional in accordance with its terms
and shall remain in full force and effect without regard to, and shall not be
released, suspended, discharged, terminated or otherwise affected by, any
circumstance or occurrence whatsoever, including, without limitation, the
following (whether or not such Guarantor consents thereto or has notice
thereof):
(a) any change in the time, place or manner of payment of, or in any other
term of, all or any of the Guaranteed Obligations, any waiver, indulgence,
renewal, extension, amendment or modification of or addition, consent or
supplement to or deletion from or any other action or inaction under or in
respect of the Master Agreement, the other Operative Documents, or any
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other documents, instruments or agreements relating to the Guaranteed
Obligations or any other instrument or agreement referred to therein or any
assignment or transfer of any hereof;
(b) any lack of validity or enforceability of the Master Agreement, the
other Operative Documents, or any other document, instrument or agreement
referred to therein or any assignment or transfer of any thereof;
(c) any furnishing to the Guaranteed Parties of any additional security
for the Guaranteed Obligations, or any sale, exchange, release or surrender of,
or realization on, any security for the Guaranteed Obligations;
(d) any settlement or compromise of any of the Guaranteed Obligations,
any security therefor or any liability of any other party with respect to the
Guaranteed Obligations, or any subordination of the payment of the Guaranteed
Obligations to the payment of any other liability of Concord;
(e) any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to any Guarantor or
Concord, or any action taken with respect to this Guaranty by any trustee or
receiver, or by any court, in any such proceeding;
(f) any nonperfection of any security interest or lien on any collateral,
or any amendment or waiver of or consent to departure from any guaranty or
security, for all or any of the Guaranteed Obligations;
(g) any application of sums paid by Concord or any other Person with
respect to the liabilities of Concord to the Guaranteed Parties, regardless of
what liabilities of Concord remain unpaid;
(h) any act or failure to act by any Guaranteed Party which may adversely
affect a Guarantor's subrogation rights, if any, against Concord to recover
payments made under this Guaranty; and
(i) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, any Guarantor other than payment or performance
of the Guaranteed Obligations.
If claim is ever made upon any Guaranteed Party for repayment or recovery of any
amount or amounts received in payment or on account of any of the Guaranteed
Obligations, and any Guaranteed Party repays all or part of said amount by
reason of (a) any judgment, decree or order of any court or administrative body
having jurisdiction over the Guaranteed Party or any of its property, or (b) any
settlement or compromise of any such claim effected by the Guaranteed Party with
any such claimant (including Concord or a trustee in bankruptcy for Concord),
then and in such event the Guarantors agree that any such judgment, decree,
order, settlement or compromise shall be binding on it, notwithstanding any
revocation hereof or the cancellation of the Master Agreement, the other
Operative Documents, or any other instrument evidencing any liability of
Concord, and the Guarantors shall be and remain liable to the Guaranteed Party
for the amounts so repaid or recovered to the same extent as if such amount had
never originally been paid to the Guaranteed Party.
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SECTION 3. Waiver. The Guarantors hereby waive notice of acceptance
of this Guaranty, notice of any liability to which it may apply, and further
waive presentment, demand or payment, protest, notice of dishonor or nonpayment
of any such liabilities, suit or taking of other action by the Guaranteed
Parties against, and any other notice to, Concord or any other party liable with
respect to the Guaranteed Obligations (including the Guarantors or any other
Person executing a guaranty of the obligations of Concord).
SECTION 4. Waiver of Subrogation; Contribution. No Guarantor will
exercise any rights against Concord which it may acquire by way of subrogation
or contribution, by any payment made hereunder or otherwise and each of the
Guarantors hereby expressly waives any claim, right or remedy which the
Guarantors may now have or hereafter acquire against Concord that arises
hereunder and/or from the performance by the Guarantors hereunder, including,
without limitation, any claim, right or remedy of any Guaranteed Party against
Concord or any security which any Guaranteed Party now has or hereafter
acquires, whether or not such claim, right or remedy arises in equity, under
contract, by statute, under color of law or otherwise unless and until the
Guaranteed Obligations have been indefeasibly paid in full.
In the event that any Guarantor (the "Funding Guarantor") shall make
any payment or payments under this Guaranty or shall suffer any loss as a result
of any realization upon any collateral granted by it to secure its obligations
hereunder, each other Guarantor (each, a "Contributing Guarantor") hereby agrees
to contribute to the Funding Guarantor an amount equal to such Contributing
Guarantor's pro rata share of such payment or payments made, or losses suffered,
by such Funding Guarantor determined by reference to the ratio of (a) the dollar
amount of the percentage of each such Contributing Guarantor's Net Assets
(without giving effect to any right to receive any contribution or subrogation
or obligation to make any contribution hereunder), to (b) the sum of the Net
Assets of all Guarantors (including the Funding Guarantor) hereunder (without
giving effect to any right to receive contribution or subrogation hereunder or
any obligation to make any contribution hereunder); provided, that the
Contributing Guarantor shall not be obligated to make any such payment to the
Funding Guarantor if the Contributing Guarantor is not solvent at the time of
such contribution or if the Contributing Guarantor would be rendered not solvent
as a result thereof. Nothing in this Section shall affect each Guarantor's
several liability for the entire amount of the Guaranteed Obligations, subject
only to the limitations set forth in Section 14. For the purposes of this
Section 4, (x) the "Net Assets" of any Guarantor shall mean the highest amount,
as of any Determination Date, by which (A) the aggregate present fair saleable
value of the assets of such Guarantor exceeds (B) the amount of all the debts
and liabilities of such Guarantor (including contingent, subordinated, unmatured
and unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder), and (y) "Determination Date" shall mean each of (1) each Closing
Date, (2) the date of commencement of a case under the Bankruptcy Code in which
a Guarantor is a debtor, and (3) the date enforcement hereunder is sought with
respect to such Guarantor. Each Funding Guarantor covenants and agrees that its
right to receive any contribution from any Contributing Guarantor hereunder
shall be subordinated and junior in right of payment in full of all of the
Guaranteed Obligations.
SECTION 5. Severability. Any provision of this Guaranty which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and
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any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 6. Amendments, Etc. No amendment or waiver of any provision
of this Guaranty nor consent to any departure by a Guarantor therefrom shall in
any event be effective unless the same shall be in writing executed by the
Agent.
SECTION 7. Notices. All notices and other communications provided for
hereunder shall be given in the manner specified in the Master Agreement (i) in
the case of the Agent, at the address specified for the Agent in the Master
Agreement, and (ii) in the case of the Guarantors, at the respective addresses
specified for such Guarantors in this Guaranty.
SECTION 8. No Waiver; Remedies. No failure on the part of the Agent
or other Guaranteed Parties to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. No notice to or demand on any Guarantor in
any case shall entitle such Guarantor to any other further notice or demand in
any similar or other circumstances or constitute a waiver of the rights of the
Agent or other Guaranteed Parties to any other or further action in any
circumstances without notice or demand. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9. Waiver of Right of Setoff. By acceptance of this Guaranty,
each Guaranteed Party hereby waives, with respect to the Guaranteed Obligations,
any contractual or common law right of setoff against any deposits of any
Guarantor now or hereafter held by and other indebtedness or property then or
thereafter owing by such Guaranteed Party to any Guarantor.
SECTION 10. Continuing Guaranty; Transfer Of Obligations. This
Guaranty is a continuing guaranty and shall (i) remain in full force and effect
until payment in full of the Guaranteed Obligations and all other amounts
payable under this Guaranty and the termination of the Commitments, (ii) be
binding upon each Guarantor, its successors and assigns, and (iii) inure to the
benefit of and be enforceable by the Agent, its successors, transferees and
assigns, for the benefit of the Guaranteed Parties, provided that no transfer
shall be effective unless such transfer is made pursuant to the terms of the
Master Agreement.
SECTION 11. Governing Law; Appointment Of Agent For Service Of
Process; Submission To Jurisdiction; Waiver of Jury Trial.
(a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF
THE STATE OF GEORGIA (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR
OTHERWISE RELATED HERETO MAY BE BROUGHT IN THE SUPERIOR COURT OF XXXXXX COUNTY
OF THE STATE OF GEORGIA OR OF THE UNITED STATES OF AMERICA FOR THE NORTHERN
DISTRICT OF GEORGIA, AND,
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BY EXECUTION AND DELIVERY OF THIS GUARANTY, EACH GUARANTOR HEREBY CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THE AFORESAID
COURTS SOLELY FOR THE PURPOSE OF ADJUDICATING ITS RIGHTS OR THE RIGHTS OF THE
AGENT AND OTHER GUARANTEED PARTIES WITH RESPECT TO THIS GUARANTY OR ANY DOCUMENT
RELATED HERETO. EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN RESPECT
OF THIS GUARANTY OR ANY DOCUMENT RELATED THERETO. NOTHING HEREIN SHALL AFFECT
THE RIGHT OF THE GUARANTEED PARTIES TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST ANY GUARANTOR IN ANY OTHER JURISDICTION.
(c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR HEREBY
IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY OR ANY OTHER
OPERATIVE DOCUMENT OR ANY MATTER ARISING IN CONNECTION HEREUNDER OR THEREUNDER.
SECTION 12. Automatic Acceleration in Certain Events. Upon the
occurrence of an Event of Default specified in paragraph (f) of Article XII of
the Lease, all Guaranteed Obligations shall automatically become immediately due
and payable by the Guarantors, without notice or other action on the part of the
Agent or other Guaranteed Parties, and regardless of whether payment of the
Guaranteed Obligations by Concord has then been accelerated. In addition, if any
event of the types described in paragraph (f) of Article XII of the Lease should
occur with respect to any Guarantor, then the Guaranteed Obligations shall
automatically become immediately due and payable by such Guarantor, without
notice or other action on the part of the Agent or other Guaranteed Parties, and
regardless of whether payment of the Guaranteed Obligations by Concord has then
been accelerated.
SECTION 13. Savings Clause. (a) It is the intent of each Guarantor and
the Guaranteed Parties that each Guarantor's maximum obligations hereunder shall
be, but not in excess of:
(i) in a case or proceeding commenced by or against such
Guarantor under the Bankruptcy Code on or within one year from the date on
which any of the Guaranteed Obligations are incurred, the maximum amount
which would not otherwise cause the Guaranteed Obligations (or any other
obligations of such Guarantor to the Guaranteed Parties) to be avoidable or
unenforceable against such Guarantor under (A) Section 548 of the
Bankruptcy Code or (B) any state fraudulent transfer or fraudulent
conveyance act or statute applied in such case or proceeding by virtue of
Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against such
Guarantor under the Bankruptcy Code subsequent to one year from the date on
which any of the
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Guaranteed Obligations are incurred, the maximum amount which would not
otherwise cause the Guaranteed Obligations (or any other obligations of the
Guarantor to the Guaranteed Parties) to be avoidable or unenforceable
against such Guarantor under any statute fraudulent transfer or fraudulent
conveyance act or statute applied in any such case or proceeding by virtue
of Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against such
Guarantor under any law, statute or regulation other than the Bankruptcy
Code (including, without limitation, any other bankruptcy, reorganization,
arrangement, moratorium, readjustment of debt, dissolution, liquidation or
similar debtor relief laws), the maximum amount which would not otherwise
cause the Guaranteed Obligations (or any other obligations of such
Guarantor to the Guaranteed Parties) to be avoidable or unenforceable
against such Guarantor under state law, statute or regulation including,
without limitation, any state fraudulent transfer or fraudulent conveyance
act or statute applied in any such case or proceeding.
(The substantive laws under which the possible avoidance or unenforceability of
the Guaranteed Obligations (or any other obligations of such Guarantor to the
Guaranteed Parties) shall be determined in any such case or proceeding shall
hereinafter be referred to as the "Avoidance Provisions").
(b) To the end set forth in Section 13(a), but only to the extent that the
Guaranteed Obligations would otherwise be subject to avoidance under the
Avoidance Provisions if such Guarantor is not deemed to have received valuable
consideration, fair value or reasonably equivalent value for the Guaranteed
Obligations, or if the Guaranteed Obligations would render the Guarantor
insolvent, or leave the Guarantor with an unreasonably small capital to conduct
its business, or cause the Guarantor to have incurred debts (or to have intended
to have incurred debts) beyond its ability to pay such debts as they mature, in
each case as of the time any of the Guaranteed Obligations are deemed to have
been incurred under the Avoidance Provisions and after giving effect to
contribution as among Guarantors, the maximum Guaranteed Obligations for which
such Guarantor shall be liable hereunder shall be reduced to that amount which,
after giving effect thereto, would not cause the Guaranteed Obligations (or any
other obligations of such Guarantor to the Guaranteed Parties), as so reduced,
to be subject to avoidance under the Avoidance Provisions. This Section 13(b) is
intended solely to preserve the rights of the Guaranteed Parties hereunder to
the maximum extent that would not cause the Guaranteed Obligations of any
Guarantor to be subject to avoidance under the Avoidance Provisions, and neither
such Guarantor nor any other Person shall have any right or claim under this
Section 13 as against the Guaranteed Parties that would not otherwise be
available to such Person under the Avoidance Provisions.
SECTION 14. Information. Each of the Guarantors assumes all
responsibility for being and keeping itself informed of Concord's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and extent of the
risks that such Guarantor assumes and incurs hereunder, and agrees that none of
the Guaranteed Parties will have any duty to advise any of the Guarantors of
information known to it or any of them regarding such circumstances or risks.
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SECTION 15. Survival of Agreement. All agreements, representations and
warranties made herein shall survive the execution and delivery of this Guaranty
and the Master Agreement, the Fundings and the execution and delivery of the
Lease and the other Operative Documents.
SECTION 16. Counterparts. This Guaranty and any amendments, waivers,
consents or supplements may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
SECTION 17. Additional Guarantors. Upon execution and delivery by any
Subsidiary of Concord of an instrument in the form of Annex 1, such Subsidiary
of Concord shall become a Guarantor hereunder with the same force and effect as
if originally named a Guarantor herein (each an "Additional Guarantor"). The
execution and delivery of any such instrument shall not require the consent of
any Guarantor hereunder. The rights and obligations of each Guarantor hereunder
shall remain in full force and effect notwithstanding the addition of any
Additional Guarantor as a party to this Guaranty.
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IN WITNESS WHEREOF, each Guarantor and the Agent have caused this
Guaranty to be duly executed and delivered by their respective duly authorized
officers as of the date first above written.
CONCORD CORPORATE SERVICES, INC.,
as a Guarantor
By: /s/ E.T. HASLAM
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Xxxxxx X. Xxxxxx
Chief Financial Officer
S-1 AMENDED AND RESTATED
SUBSIDIARY GUARANTY AGREEMENT
STAR SYSTEMS, LLC, as a Guarantor
By: Concord EFS, Inc., its sole member
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
President
S-2 AMENDED AND RESTATED
SUBSIDIARY GUARANTY AGREEMENT
CONCORD PAYMENT SERVICES, INC.,
as a Guarantor
By: /s/ E.T. HASLAM
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Xxxxxx X. Xxxxxx
Chief Financial Officer
S-3 AMENDED AND RESTATED
SUBSIDIARY GUARANTY AGREEMENT
EPSF CORPORATION, as a Guarantor
By: /s/ E.T. HASLAM
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Xxxxxx X. Xxxxxx
Chief Financial Officer
S-4 AMENDED AND RESTATED
SUBSIDIARY GUARANTY AGREEMENT
STAR PROCESSING, INC., as a Guarantor
By: /s/ E.T. HASLAM
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Xxxxxx X. Xxxxxx
Chief Financial Officer
S-5 AMENDED AND RESTATED
SUBSIDIARY GUARANTY AGREEMENT
MAS INCO CORPORATION, as a Guarantor
By: /s/ E.T. HASLAM
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Xxxxxx X. Xxxxxx
Chief Financial Officer
S-6 AMENDED AND RESTATED
SUBSIDIARY GUARANTY AGREEMENT
STAR SYSTEMS, INC., as a Guarantor
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxx
President
S-7 AMENDED AND RESTATED
SUBSIDIARY GUARANTY AGREEMENT
STAR NETWORKS, INC., as a Guarantor
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxx
President
S-8 AMENDED AND RESTATED
SUBSIDIARY GUARANTY AGREEMENT
STAR SYSTEMS ASSETS, INC.,
as a Guarantor
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxx
President
S-9 AMENDED AND RESTATED
SUBSIDIARY GUARANTY AGREEMENT
ACCEPTED:
SUNTRUST BANK, as Agent
By: /s/ XXXXX X. XXXX
-----------------------------------
Xxxxx X. Xxxx
Director
S-10 AMENDED AND RESTATED
SUBSIDIARY GUARANTY AGREEMENT
Annex 1
SUPPLEMENT
TO SUBSIDIARY GUARANTY AGREEMENT
THIS SUPPLEMENT TO SUBSIDIARY GUARANTY AGREEMENT (this "Supplement to
Guaranty Agreement"), dated as of _____________, 20__, made by
__________________________, a _____________ corporation (the "Additional
Guarantor"), in favor of (i) SUNTRUST BANK, a Georgia banking corporation (the
"Agent"), in its capacity as agent for the financial institutions parties to the
Master Agreement (as hereinafter defined) and each assignee thereof becoming a
"Lender" as provided therein (the "Lenders") (ii) the Lenders and (iii) SUNTRUST
EQUITY FUNDING, LLC (the "Lessor"; the Lenders, the Agent and the Lessor, being
collectively referred to herein as the "Guaranteed Parties").
WITNESSETH:
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WHEREAS, certain Subsidiaries (the "Subsidiary Guarantors") of Concord
have executed and delivered that certain Amended and Restated Subsidiary
Guaranty Agreement dated as of June 26, 2003 (as heretofore or hereafter
amended, the "Subsidiary Guaranty") pursuant to which the Subsidiary Guarantors
have agreed to guarantee all of the obligations of Concord under the Master
Agreement and the other Operative Documents (as defined in the Master
Agreement);
WHEREAS, Concord, the Subsidiary Guarantors and the Additional
Guarantor share an identity of interests as members of a consolidated group of
companies engaged in substantially similar businesses; Concord provides certain
centralized financial, accounting and management services to the Additional
Guarantor; and the making of the loans will enhance the overall financial
strength and stability of the Concord's corporate group, including the
Additional Guarantor;
WHEREAS, it is a condition subsequent to the Funding Parties'
obligation to Concord under the Master Agreement that the Additional Guarantor
execute and deliver to the Agent this Supplement to Guaranty Agreement, and the
Additional Guarantor desires to execute and deliver this Supplement to Guaranty
Agreement to satisfy such condition subsequent;
NOW, THEREFORE, in consideration of the premises and in order to
induce the Funding Parties to enter into and perform their obligations under the
Master Agreement, the Additional Guarantor hereby agrees as follows:
1. Defined Terms. Capitalized terms not otherwise defined herein which are
used in the Subsidiary Guaranty are used herein with the meanings specified for
such terms in the Master Agreement.
2. Additional Guarantor. The Additional Guarantor agrees that it shall be and
become a Guarantor for all purposes of the Subsidiary Guaranty and the Master
Agreement and shall be fully liable thereunder to the Agent and other Guaranteed
Parties to the same extent and with the same effect as through the Additional
Guarantor had been one of the Guarantors originally executing and delivering the
Subsidiary Guaranty and the Master Agreement. Without limiting the foregoing,
the Additional Guarantor hereby jointly and severally (with respect to the
guaranties made by the Subsidiary Guarantors under the Subsidiary Guaranty),
irrevocably and unconditionally, guarantees the punctual payment when due,
whether at stated maturity by acceleration or otherwise, of the Obligations (as
defined in the Master Agreement, and including all renewals, extensions,
modifications and refinancings thereof, now or hereafter existing, whether for
principal, interest, fees, expenses or otherwise, and any and all expenses
(including reasonable attorneys' fees actually incurred and reasonable
out-of-pocket expenses) incurred by the Agent and other Guaranteed Parties in
enforcing any rights under the Subsidiary Guaranty (as supplemented hereby),
subject, however, to the limitations expressly provided in the Subsidiary
Guaranty in Section 13 thereof. All references in the Subsidiary Guaranty to
"Guarantors" or any "Guarantor" shall be deemed to include and to refer to the
Additional Guarantor.
3. Governing Law; Appointment of Agent for Service of Process; Submission to
Jurisdiction; Waiver of Jury Trial.
(a) THIS SUPPLEMENT TO GUARANTY AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAWS OF THE STATE OF GEORGIA (WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAW PRINCIPLES THEREOF).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS SUPPLEMENT
TO GUARANTY AGREEMENT RELATED HERETO MAY BE BROUGHT IN THE SUPERIOR COURT OF
XXXXXX COUNTY OF THE STATE OF GEORGIA OR OF THE UNITED STATES OF AMERICA FOR THE
NORTHERN DISTRICT OF GEORGIA, AND, BY EXECUTION AND DELIVERY OF THIS SUPPLEMENT
TO GUARANTY AGREEMENT, THE ADDITIONAL GUARANTOR HEREBY CONSENTS, FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THE AFORESAID COURTS SOLELY
FOR THE PURPOSE OF ADJUDICATING ITS RIGHTS OR THE RIGHTS OF THE AGENT OR OTHER
GUARANTEED PARTIES WITH RESPECT TO THIS SUPPLEMENT TO GUARANTY AGREEMENT OR ANY
DOCUMENT RELATED HERETO. THE ADDITIONAL GUARANTOR HEREBY IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS IN RESPECT OF THIS SUPPLEMENT TO GUARANTY AGREEMENT OR ANY
DOCUMENT RELATED THERETO. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY
GUARANTEED PARTY TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE
ADDITIONAL GUARANTOR IN ANY OTHER JURISDICTION.
(c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE ADDITIONAL
GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS SUPPLEMENT
TO GUARANTY AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT OR ANY MATTER ARISING IN
CONNECTION HEREUNDER OR THEREUNDER.
2
IN WITNESS WHEREOF, the Additional Guarantor has caused this
Supplement to Guaranty to be duly executed and delivered under seal by its duly
authorized officers as of the date first above written.
Address for Notices: ADDITIONAL GUARANTOR:
------------------- --------------------
--------------------------------------
By:
-----------------------------------
Title:
-----------------------------
Attest:
-------------------------------
Title:
-------------------------------
[CORPORATE SEAL]
ACCEPTED:
--------
SUNTRUST BANK, as Agent
By:
----------------------------------
Title:
-----------------------------
3
