________________________________________________________________________________
FORT XXXXX GUARANTY
among
FORT XXXXX CORPORATION
and
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Owner Trustee
and
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Indenture Trustee
and
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Pass Through Trustee
and Loan Participant
and
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Owner Participant
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Dated as of _________, 1998
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________________________________________________________________________________
[Leased Property]
________________________________________________________________________________
FORT XXXXX GUARANTY
THIS Guaranty, dated as of ____________, 1998 (together with
any amendments or supplements hereto, this "Guaranty"), by and among FORT XXXXX
CORPORATION, a Virginia corporation (together with any successor permitted by
Section 4.1 hereof, the "Guarantor"), and the Owner Trustee, in both its
individual capacity and as Owner Trustee, the Indenture Trustee, in both its
individual capacity and as Indenture Trustee, the Pass Through Trustee, in both
its individual capacity and as Pass Through Trustee and as Loan Participant, and
the Owner Participant (defined below) referred to in the Participation Agreement
described below (collectively, together with each other Indemnitee and their
successors and permitted assigns, the "Beneficiaries" and, individually, a
"Beneficiary").
WITNESSETH:
WHEREAS, Fort Xxxxx Operating Company, a Virginia corporation
and wholly-owned subsidiary of the Guarantor (together with its successors and
permitted assigns, the "Lessee"), is entering into that certain Participation
Agreement dated as of ____________, 1998 (the "Participation Agreement"), among
the Lessee, the Owner Participant, _____________________, acting not in its
individual capacity except as expressly set forth therein, but solely as Owner
Trustee, ____________________, acting not in its individual capacity except as
expressly provided therein, but solely as Indenture Trustee, and
________________________, acting not in its individual capacity except as
expressly provided therein, but solely as Pass Through Trustee and Loan
Participant; and
WHEREAS, it is a condition precedent to the obligations of
the Beneficiaries to consummate the transactions contemplated by the
Participation Agreement that the Guarantor execute and deliver this Guaranty,
NOW, THEREFORE, in consideration of the premises and of other
good and valuable consideration, the Guarantor does hereby covenant and agree
with the Beneficiaries as follows (capitalized terms used herein (including
those used in the foregoing preamble and recitals) and not otherwise defined
herein having the meanings ascribed to them in Appendix A to the Participation
Agreement):
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF GUARANTOR
Section 1.1. Representations and Warranties of Guarantor.
The Guarantor hereby represents and warrants that:
(a) The Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Virginia, has the corporate power
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and authority to carry on its business as presently conducted, to own
or hold under lease its properties, and to enter into and perform its
obligations under this Guaranty, and is duly qualified to do business
in each jurisdiction in which it has operations or a principal office
and where failure so to qualify could reasonably be expected to
materially adversely affect the financial condition of the Guarantor
and its subsidiaries on a consolidated basis or their business or
operations, or the Guarantor's ability to perform any of its
obligations under this Guaranty.
(b) This Guaranty has been duly authorized, executed and
delivered by the Guarantor and constitutes a valid and binding
obligation of the Guarantor, enforceable against the Guarantor in
accordance with the terms hereof, subject to bankruptcy, insolvency
(including without limitations all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' or lessors' rights generally and is subject
to general principals of equity (whether considered in a proceeding in
equity or at law).
(c) The execution and delivery by the Guarantor of this
Guaranty do not and will not, and the performance by the Guarantor of
its obligations hereunder does not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Guarantor
pursuant to, any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to
which the Guarantor is party or by which it may be bound, or to which
any of the property or assets of the Guarantor is subject (except for
such conflicts, breaches or defaults or liens, charges or encumbrances
that would not result in a material adverse change in the condition,
financial or otherwise, or in the earnings or business affairs of the
Guarantor and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business (a "Material Adverse
Effect")), nor will such action result in any violation of the
provisions of the charter or by-laws of the Guarantor, or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court,
domestic or foreign, known to the Guarantor having jurisdiction over
the Guarantor or any of its assets, properties or operations which
would result in a Material Adverse Effect. As used herein, a
"Repayment Event" means any event or condition which gives the holder
of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the
repurchase redemption or repayment of all or a portion of such
indebtedness by the Guarantor.
(d) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency and no consent of any other Person
(including, without limitation, any stockholder or creditor
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of the Guarantor) is necessary or required in connection with the
execution, delivery or performance of this Guaranty, except such as
have been already obtained, and except for such that would not
reasonably be expected to have a Material Adverse Effect or as may be
required under the Securities Act, the Trust Indenture Act or state
securities laws.
(e) Each of the consolidated financial statements of the
Guarantor set forth in its Annual Report on Form 10-K for the year
ended December 28, 1997 and the consolidated financial statements of
the Guarantor set forth in its Quarterly Report on Form 10-Q for each
of the three month periods ended March 29, 1998 and June 28, 1998
fairly presents the consolidated financial position of the Guarantor
and its Subsidiaries as at the respective dates thereof and the
consolidated results of operations and changes in financial position
of the Guarantor and its Subsidiaries for each of the periods covered
thereby (subject, in the case of any unaudited interim financial
statements to changes resulting from normal year-end adjustments) in
conformity with GAAP applied on a consistent basis (except as
disclosed in the notes thereto). Since June 28, 1998, (i) there has
been no Material Adverse Effect, and (ii) there have been no
transactions entered into by the Guarantor or any of its subsidiaries,
other than those in the ordinary course of business, which are
material with respect to the Guarantor and its subsidiaries considered
as one enterprise.
(f) Except as disclosed in the Guarantor's Annual Report on
Form 10-K for the year ended December 28, 1997 or the Guarantor's
Quarterly Report on Form 10-Q for the three month periods ended March
29, 1998 and June 28, 1998, there is no action, suit, investigation or
proceeding pending or, to the Actual Knowledge of the Guarantor,
threatened in writing against the Guarantor or affecting it or its
properties before any Governmental Authority which, individually or in
the aggregate (so far as the Guarantor now can reasonably foresee), is
reasonably likely materially and adversely to affect the consummation
of the transactions under this Guaranty or the ability of the
Guarantor to perform its obligations hereunder or its business or
financial condition.
(g) The Guarantor owns, directly or indirectly, 100% of the
equity interest in the Lessee.
ARTICLE II
GUARANTY OF OBLIGATIONS
Section 2.1. Guaranty of Obligations. (a) The Guarantor
hereby guarantees to each of the Beneficiaries, as primary obligor and not as
surety, the full and prompt payment by the Lessee, when due, whether at the
stated payment date thereof, by acceleration or otherwise, of, and the faithful
performance of and compliance with, all payment obligations of the Lessee under
the Participation Agreement, the Lease and the other Operative Documents owed to
the
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Beneficiaries strictly in accordance with the terms thereof, however created,
arising or evidenced, whether direct or indirect, primary or secondary, absolute
or contingent, joint or several, and whether now or hereafter existing or due or
to become due and the full, faithful and timely performance of, and compliance
with, all other obligations of the Lessee owed to the Beneficiaries thereunder
strictly in accordance with the terms thereof, however created, arising or
evidenced, whether direct or indirect, primary or secondary, absolute or
contingent, joint or several, and whether now or hereafter existing or due or to
become due (such payment and other obligations, the "Obligations"). Such
guarantee is an absolute, unconditional, irrevocable, present and continuing
guarantee of payment and performance and not of collectability.
(b) If for any reason any Obligation to be performed or
observed by the Lessee (whether affirmative or negative in character) shall not
be observed or performed strictly in accordance with the terms thereof, the
Guarantor shall perform or observe or cause to be performed or observed each
such Obligation and shall pay the amount of each unpaid Obligation at the place
and to the Person or entity entitled thereto pursuant to the relevant Operative
Documents, as the case may be, regardless of whether or not any Beneficiary or
anyone on behalf of any of them shall have instituted any suit, action or
proceeding or exhausted its remedies or taken any steps to enforce any rights
against the Lessee or any other Person or entity to compel any such performance
or to collect all or any part of such amount pursuant to the provisions of the
relevant Operative Document or at law or in equity, or otherwise, and regardless
of any other condition or contingency. Nothing in this Guaranty shall be
construed to be a guaranty of payment of the Secured Note.
Section 2.2. Nature of Guaranty. The obligations, covenants,
agreements and duties of the Guarantor hereunder shall remain in full force and
effect until the Obligations are finally, indefeasibly and unconditionally paid
and performed in full in accordance with the terms of the Operative Documents
and, to the maximum extent permitted by law, shall in no way be affected or
impaired by reason of the happening from time to time of any other event,
including, without limitation, the following, whether or not any such event
shall have occurred without notice to or the consent of the Guarantor:
(a) the waiver, compromise, settlement, termination or other
release of the performance or observance by the Guarantor or the
Lessee of any or all of their respective agreements, covenants, terms
or conditions contained in this Guaranty, the Participation Agreement,
the Lease and the other Operative Documents;
(b) any failure, omission, delay or lack on the part of the
Beneficiaries to enforce, assert or exercise any right, power or
remedy conferred on the Beneficiaries in the Participation Agreement,
the Lease, the other Operative Documents or this Guaranty, or the
inability of the Beneficiaries to enforce any provision of the
Participation Agreement, the Lease, the other Operative Documents or
this Guaranty for any reason, or any other act or omission on the part
of the Beneficiaries;
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(c) the transfer, assignment or mortgaging, or the purported
transfer, assignment or mortgaging, of all or any part of the interest
of the Lessee in the [Leased Property] or the invalidity,
unenforceability or termination of the Participation Agreement, the
Lease or any other Operative Document or any defect in the title of
the [Leased Property] or any part thereof or any loss of possession,
use or operational control of the [Leased Property] or any part
thereof by the Lessee or any Sublessee;
(d) the modification or amendment (whether material or
otherwise) of any obligation, covenant or agreement set forth in the
Participation Agreement, the Lease, or any other Operative Document;
(e) the voluntary or involuntary liquidation, dissolution,
sale of all or substantially all of the assets, marshaling of assets
and liabilities, receivership, conservatorship, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of, or other similar
proceedings affecting the Lessee or any of its assets or any
allegation or contest of the validity of this Guaranty, the
Participation Agreement, the Lease or any other Operative Document in
any such proceeding;
(f) the surrender or impairment of any security for the
performance or observance of any of the Obligations;
(g) any failure of the Guarantor or the Lessee to perform and
observe any agreement or covenant, or to discharge any duty or
obligation, arising out of or connected with this Guaranty, the
Participation Agreement, the Lease or any other Operative Document or
the occurrence or pendency of any Lease Default or Lease Event of
Default or any proceedings or actions as a result of, or attendant
upon, such Lease Default or Lease Event of Default;
(h) the failure to give notice to the Guarantor or the Lessee
of the occurrence of an event of default under the terms and
provisions of the Participation Agreement, the Lease or the other
Operative Documents;
(i) the disposition by the Guarantor of any or all of its
interest in any capital stock of the Lessee or any change,
restructuring or termination of the corporate structure, ownership or
existence of the Lessee; or
(j) any set-off, counterclaim, reduction, or diminution of
any Obligation, or any defense of any kind or nature whatsoever (other
than performance) which the Guarantor or the Lessee may have or assert
against the Beneficiaries.
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Section 2.3. Waivers by Guarantor. The Guarantor waives
notice of the acceptance of and reliance on this Guaranty by the Beneficiaries,
and the Guarantor also waives presentment, demand for payment, protest and
notice of nonpayment or dishonor and all other notices and demands whatsoever.
The Guarantor further waives any right it may have to (a) require the
Beneficiaries to proceed against the Lessee, (b) require the Beneficiaries to
proceed against or exhaust any security granted by the Lessee or the Owner
Trustee or (c) require the Beneficiaries to pursue any other remedy within the
power of the Beneficiaries, and the Guarantor agrees that all of its obligations
under this Guaranty are independent of the Obligations and that a separate
action may be brought against the Guarantor whether or not an action is
commenced against the Lessee under the Operative Documents.
Section 2.4. Subrogation of Guarantor; Subordination.
Notwithstanding any payment or payments made by the Guarantor, the Guarantor
shall not be subrogated to any rights of the Beneficiaries against the Lessee
until all of the Obligations then due shall have been finally, indefeasibly and
unconditionally paid and performed in full. Any claim of the Guarantor against
the Lessee arising from payments made by the Guarantor by reason of this
Guaranty shall be in all respects subordinated to the final, indefeasible,
unconditional, full and complete payment or discharge of all of the Obligations
guaranteed hereby, and no payment by the Guarantor shall give rise to any claim
of the Guarantor against the Beneficiaries.
Section 2.5. Reinstatement. This Guaranty shall continue to
be effective, or be automatically reinstated, as the case may be, if at any time
payment, or any part thereof, made by or on behalf of the Lessee of any of the
Obligations is rescinded or must otherwise be restored or returned by any
Beneficiary for any reason whatsoever, whether upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Lessee, or upon or as a result
of the appointment of a receiver, intervener or conservator of, or trustee or
similar officer for, either of the Lessee or any substantial part of its
property, or otherwise, all as though such payments had not been made.
Section 2.6. Place and Manner of Payments. All payments to be
made by the Guarantor under this Guaranty to a Beneficiary shall be paid to such
Beneficiary at the address provided for in Schedule 2 of the Participation
Agreement or, if no address, at the address and to the account specified in the
notice demanding payment by the Guarantor; provided, however, that the Guarantor
consents to the assignment by the Owner Trust to the Indenture Trustee of the
Owner Trust's right, title and interest in, to and under this Guaranty to the
extent set forth in the Indenture, and agrees to make all payments (other than
Excepted Payments) hereunder directly to the Indenture Trustee until such time
as the Indenture Trustee shall give notice to the Guarantor that the Lien of the
Indenture has been fully discharged, and thereafter to the Owner Trust. The
Guarantor agrees that it will make all payments due hereunder by wire transfer
at or before 12 Noon, New York time, on the date due in immediately available
funds to the party to which such payment is to be made.
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ARTICLE III
DEFAULT AND REMEDIES
Section 3.1. Enforcement Provisions. The Beneficiaries shall
have the right, power and authority to do all things, including instituting or
appearing in any suit or proceeding, not inconsistent with the express
provisions of the Operative Documents or this Guaranty, which they may deem
necessary or advisable to enforce the provisions of this Guaranty and protect
the interests of the Beneficiaries. Each and every default in the payment or
performance of the Obligations shall give rise to a separate cause of action
hereunder, and separate suits may be brought hereunder as each cause of action
arises.
Section 3.2. No Remedy Exclusive. No remedy conferred upon or
reserved to the Beneficiaries herein or in the Operative Documents is intended
to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy
given under this Guaranty or now or hereafter existing at law or in equity.
Section 3.3. Right to Proceed Against Guarantor. In the event
of a default in any payment or performance of any Obligation owed to a
Beneficiary when and as the same shall become due, whether at the stated
maturity thereof, by acceleration or otherwise, such Beneficiary may proceed to
enforce its rights hereunder and such Beneficiary shall have the right to
proceed first and directly against the Guarantor under this Guaranty without
proceeding against any other Person or exhausting any other remedies which they
may have and without resorting to any collateral security relating thereto. The
provisions of Section 6.7 of the Pass Through Trust Agreement and Section 6.07
of the Indenture shall apply to actions proposed to be commenced hereunder
against the Guarantor by the Certificateholders or by the Pass Through Trustee
in its capacity as Loan Participant.
Section 3.4. Guarantor to Pay Costs of Enforcement. The
Guarantor agrees to pay all costs, expenses and fees properly incurred,
including, without limitation, all reasonable attorneys' fees, which may be
incurred by the Beneficiaries in enforcing or attempting to enforce this
Guaranty or protecting the rights of the Beneficiaries hereunder following any
default on the part of the Guarantor hereunder, whether the same shall be
enforced by suit or otherwise.
Section 3.5. No Waiver of Rights. No delay in exercising or
omission to exercise any right or power accruing upon any default, omission or
failure of performance hereunder shall impair any such right or power or shall
be construed to be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed expedient.
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ARTICLE IV
COVENANTS OF GUARANTOR
Section 4.1. Maintenance of Corporate Existence. So long as
any of the Obligations remain outstanding or any amounts due and owing by the
Lessee with respect thereto remain unpaid, the Guarantor will maintain its
corporate existence and will not merge or consolidate with any other corporation
nor dissolve or otherwise sell or dispose of all or substantially all of its
assets as an entirety, unless the successor or transferee corporation (if other
than the Guarantor) shall expressly assume, in a written instrument delivered to
the Owner Participant, the Owner Trustee, the Indenture Trustee and the Pass
Through Trustee, the punctual performance and observance of all covenants,
conditions and obligations of this Guaranty to be performed by the Guarantor.
Section 4.2. Financial Statements. The Guarantor shall
provide to the Owner Participant and the Indenture Trustee, within 30 days after
the Guarantor is required to file the same with the Securities and Exchange
Commission (the "SEC") or any successor agency, a copy of each annual report and
any amendment to an annual report, filed by the Guarantor with the SEC pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 (currently Form
10-K), as the same may be amended from time to time, and all financial statement
reports, notices, proxy statements or other documents that are sent or made
generally available by the Guarantor to holders of its registered equity
securities and all regular and periodic reports filed by the Guarantor with the
SEC except for reports on SEC Forms 3, 4 or 5 or any comparable reports and
provided that the Guarantor shall not be required to provide any report or other
document provided for by this Section 4.2 if such document is available through
the SEC's Electronic Data Gathering, Analysis and Retrieval System ("XXXXX").
ARTICLE V
GENERAL
Section 5.1. Benefitted Parties. This Guaranty is entered
into by the Guarantor for the benefit of the Beneficiaries in accordance with
the provisions of this Guaranty and the Operative Documents. This Guaranty shall
not be deemed to create any right in, or to be in whole or in part for the
benefit of, any person other than the Beneficiaries and the Guarantor and their
respective permitted successors and assigns. The Guarantor may not assign any of
its rights or obligations hereunder except in accordance with Section 4.1
hereof.
Section 5.2. Interpretations. The article and section
headings of this Guaranty are for reference purposes only and shall not affect
its interpretation in any respect.
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Section 5.3. Entire Agreement; Counterparts; Amendments;
Governing Law; Etc. This Guaranty (a) constitutes the entire agreement, and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof; (b) may be
executed in several counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument; (c) may be
modified only by an instrument in writing signed by the duly authorized
representatives of the parties hereto; and (d) shall be governed in all
respects, including validity, interpretation and effect by, and shall be
enforceable in accordance with, the laws of the State of New York. This Guaranty
shall terminate when the Obligations have been fully, indefeasibly and
unconditionally paid and performed in full.
If any provision of this Guaranty shall be held to be invalid
by any court of competent jurisdiction, the invalidity of such provisions shall
not affect any of the remaining provisions, and any such invalidity in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto hereby waive any provision thereof that renders any term or provision
hereof invalid or unenforceable in any respect.
Section 5.4. Further Assurances. The Guarantor will execute
and deliver all such instruments and take all such actions as the Beneficiaries
may from time to time reasonably request in order fully to effectuate the
purposes of this Guaranty.
Section 5.5. Notices. All notices and other communications in
respect of this Guaranty to the Guarantor or the Beneficiaries shall be given as
provided in the applicable provisions of the Participation Agreement.
Section 5.6. Consent to Jurisdiction. Any legal suit, action
or proceeding arising out of or relating to this Guaranty or any transaction
contemplated hereby may be instituted in any state or Federal court in the
County of New York and State of New York, and the Guarantor to the extent
permitted by applicable law waives any objection which it may now or hereafter
have to the laying of the venue of any such suit, action or proceeding, and
irrevocably submits to the jurisdiction of any such court in any such suit,
action or proceeding.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be executed in its name and behalf and its corporate seal to be affixed hereto
and attested by its duly authorized officers, and the Beneficiaries have
accepted the same, as of the date first above written.
FORT XXXXX CORPORATION
By:____________________________________________
Name:
Title:
ACCEPTED:
______________________________________________,
in its individual capacity and as Owner Trustee
By:____________________________________________
Name:
Title:
______________________________________________,
in its individual capacity and as Indenture Trustee
By:____________________________________________
Name:
Title:
______________________________________________,
in its individual capacity and as Pass Through
Trustee under the Pass Through Trust Agreement
and as the Loan Participant
By:____________________________________________
Name:
Title:
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________________________________________________,
as Owner Participant
By:______________________________________________
Name:
Title:
