GUARANTY
THIS GUARANTY dated as of November 5, 1999 executed and delivered by
XXXX CONTRACT FLOORING SERVICES, INC. (the "Guarantor") in favor of BANK OF
AMERICA, N.A., as Administrative Agent (the "Administrative Agent") for the
Lenders (the "Lenders") under the Credit Agreement (as hereinafter defined) (the
Administrative Agent and the Lenders being collectively referred to herein as
the "Guaranteed Parties").
WHEREAS, pursuant to that certain Credit Agreement dated as of November
5, 1999 (as the same may be amended, modified, supplemented or extended from
time to time, the "Credit Agreement"; terms used herein and not defined herein
have their respective defined meanings as set forth in the Credit Agreement) by
and among Xxxx Industries, Inc. (the "Borrower"), the Lenders named therein,
Bank of America, N.A., as Administrative Agent and SunTrust Bank, Atlanta, as
Documentation Agent, the Lenders have made available to the Borrower certain
financial accommodations on the terms and conditions set forth in the Credit
Agreement;
WHEREAS, the Guarantor is a Material Subsidiary of the Borrower and is
required, pursuant to Section 4.1(b)(ii) of the Credit Agreement, to execute and
deliver this Guaranty;
WHEREAS, as a Material Subsidiary of the Borrower, the Guarantor has
and will benefit from the financial accommodations provided by the
Administrative Agent and the Lenders to the Borrower under the Credit Agreement
as such financial accommodations will enable the Borrower to provide the
Guarantor with sufficient capital to operate the Guarantor's operations; and
WHEREAS, the Guarantor is therefore willing to guarantee the payment in
full of the principal of, and interest on, all Guaranteed Obligations (as
defined below) owing by the Borrower to the Administrative Agent and the other
Guaranteed Parties under the Credit Agreement and otherwise.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Guarantor, the Guarantor
agrees as follows:
Section 1. Guaranty. The Guarantor hereby, irrevocably and
unconditionally, guarantees the due and punctual payment and performance when
due, whether at stated maturity, by acceleration or otherwise, of the following
(the following collectively referred to as the "Guaranteed Obligations"): (a)
all Obligations (as defined in the Credit Agreement); and (b) any and all
extensions, renewals, modifications, amendments or substitutions of the
foregoing.
Section 2. Guaranty of Payment and Not of Collection. This Guaranty is
a guaranty of payment, and not of collection, and a debt of the Guarantor for
its own account. Accordingly, the Guaranteed Parties shall not be obligated or
required before enforcing this Guaranty against the Guarantor: (a) to pursue any
right or remedy any Guaranteed Party may have against the Borrower, any Loan
Party or any other guarantor of the Guaranteed Obligations or commence any suit
or other proceeding against the Borrower, any Loan Party or any other guarantor
of the Guaranteed Obligations in any court or other tribunal; (b) to make any
claim in a liquidation or bankruptcy of the Borrower, any Loan Party or any
other guarantor of the Guaranteed Obligations; or (c) to make demand of the
Borrower or any other guarantor of the Guaranteed Obligations or to enforce or
seek to enforce or realize upon any collateral security held by the
Administrative Agent or any Lender which may secure any of the Guaranteed
Obligations. In this connection, the Guarantor hereby waives the right of the
Guarantor to require any holder of the Guaranteed Obligations to take action
against the Borrower as provided in Official Code of Georgia Annotated
ss.10-7-24.
Section 3. Guaranty Absolute. The Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
documents evidencing the same, 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 the
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 the Guarantor consents thereto or has notice
thereof):
(a) (i) any change in the amount, interest rate or due date or other
term of any Guaranteed Obligations, or (ii) any change in the time, place or
manner of payment of all or any portion of the Guaranteed Obligations, or (iii)
any amendment or waiver of, or consent to the departure from or other indulgence
with respect to, the Credit Agreement, any other Loan Document, or any other
document or instrument evidencing any Guaranteed Obligations, or (iv) any
waiver, renewal, extension, addition, or supplement to, or deletion from, or any
other action or inaction under or in respect of, the Credit Agreement, the other
Loan Documents, or any other documents, instruments or agreements relating to
the Guaranteed Obligations or any other instrument or agreement referred to
therein or evidencing any Guaranteed Obligations or any assignment or transfer
of any of the foregoing;
(b) any lack of validity or enforceability of the Credit Agreement, the
other Loan Documents, or any other document, instrument or agreement referred to
therein or evidencing any Guaranteed Obligations or any assignment or transfer
of any of the foregoing;
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(c) any furnishing to the Guaranteed Parties of any security for the
Guaranteed Obligations, or any sale, exchange, release or surrender of, or
realization on, any collateral 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 the Borrower;
(e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to the
Guarantor or the Borrower or any other Loan Party or any other Person, 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 securing any of the Guaranteed Obligations;
(g) any application of sums paid by the Borrower or any other Person
with respect to the liabilities of the Borrower to the Guaranteed Parties,
regardless of what liabilities of the Borrower remain unpaid;
(h) any defect, limitation or insufficiency in the borrowing powers of
the Borrower or in the exercise thereof;
(i) any act or failure to act by any Guaranteed Party which may
adversely affect the Guarantor's subrogation rights, if any, against the
Borrower to recover payments made under this Guaranty; or
(k) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Guarantor.
Section 4. Action with Respect to Guaranteed Obligations. The
Administrative Agent or any other Guaranteed Party may, at any time and from
time to time, without the consent of, or notice to, the Guarantor, and without
discharging the Guarantor from its obligations hereunder take any and all
actions described in Section 3 above and may otherwise: (a) amend, modify, alter
or supplement the terms of any of the Guaranteed Obligations, including, but not
limited to, extending or shortening the time of payment of any of the Guaranteed
Obligations or increasing, decreasing or otherwise changing the interest rate or
fees that may accrue on any of the Guaranteed Obligations; (b) amend, modify,
alter or supplement the Credit Agreement or any other Loan Document or any other
document evidencing any Guaranteed Obligations; (c) sell, exchange, release or
otherwise deal with all, or any part, of any Collateral; (d) release any Person
liable in any manner for the payment or collection of the Guaranteed
Obligations; (e) exercise, or refrain from exercising, any rights against the
Borrower or any other Person (including, without limitation, any other guarantor
of the Guaranteed Obligations); and (f) apply any sum, by whomsoever paid or
however realized, to the Guaranteed Obligations in such order as such Guaranteed
Party shall elect.
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Section 5. Waiver. The Guarantor, to the fullest extent permitted by
law, hereby waives notice of acceptance hereof or any presentment, demand,
protest or notice of any kind, and any other act or thing, or omission or delay
to do any other act or thing, which in any manner or to any extent might vary
the risk of the Guarantor or which otherwise might operate to discharge the
Guarantor from its obligations hereunder.
Section 6. Inability to Accelerate Loan. If any Guaranteed Party or the
holder of any of the Guaranteed Obligations is prevented under Applicable Law or
otherwise from demanding or accelerating payment thereof by reason of any
automatic stay or otherwise, the Guaranteed Party or such holder shall be
entitled to receive from the Guarantor, upon demand therefor, the sums which
otherwise would have been due had such demand or acceleration occurred.
Section 7. Reinstatement of 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 the Borrower or a trustee in bankruptcy for the
Borrower), then, and in such event, the Guarantor agrees that any such judgment,
decree, order, settlement or compromise shall be binding on it, notwithstanding
any revocation hereof or the cancellation of the Credit Agreement, the other
Loan Documents, or any other instrument evidencing any liability of the
Borrower, and the Guarantor 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.
Section 8. Waiver of Subrogation. The Guarantor hereby forever waives
and releases any and all claims or causes of action the Guarantor may have
against the Borrower or any other Loan Party or any other Person arising by
reason of any payment by the Guarantor to any other Guaranteed Party pursuant to
this Guaranty, whether such claim or cause of action arises by way of any
common-law right of subrogation, by way of any other applicable law or statutes,
or by way of any written or oral agreement between the Guarantor and the
Borrower or Loan Party or Person. This waiver of subrogation is for the benefit
of the Borrower and the Guaranteed Parties and the foregoing waiver may not be
revoked by the Guarantor without the prior, written consent of the
Administrative Agent and the Requisite Lenders on behalf of the other Guaranteed
Parties.
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Section 9. Payments Free and Clear. All sums payable by the Guarantor
hereunder, whether of principal, interest, fees, expenses, premiums or
otherwise, shall be paid in full, without set-off or counterclaim or any
deduction or withholding whatsoever (including any withholding tax or liability
imposed by any governmental agency or authority, wherever located, or any
statute, rule or regulation promulgated thereby), and in the event that the
Guarantor is required by such applicable law or by such governmental agency or
authority to make any such deduction or withholding, the Guarantor shall pay to
the Guaranteed Parties such additional amount as will result in the receipt by
the Administrative Agent on behalf of the Guaranteed Parties of the full amount
payable hereunder had such deduction or withholding not occurred or been
required.
Section 10. Set-off. The Guarantor authorizes the Administrative Agent
and the other Guaranteed Parties at any time and from time to time, without
notice to the Guarantor, which notice the Guarantor hereby expressly waives, to
set off and apply any and all deposits (whether general or special, time or
demand, provisional or final, including any negotiable or non-negotiable
certificate of deposit now or hereafter issued by the Administrative Agent or
the other Guaranteed Parties to the Guarantor) or other indebtedness owing by
such Administrative Agent or Guaranteed Party to the Guarantor, to the then
outstanding Guaranteed Obligations then due and payable. The Administrative
Agent or any other Guaranteed Party may exercise this right of setoff whether or
not such Administrative Agent or Guaranteed Party has made demand for, or
accelerated, any Guaranteed Obligations. The rights of the Administrative Agent
and the other Guaranteed Parties under this Section are in addition to, and not
in limitation or substitution of, other rights and remedies (including, but not
limited to, other rights of set-off) that the Administrative Agent and the other
Guaranteed Parties may have.
Section 11. Subordination Of the Borrower's Obligations To the
Guarantor. As an independent covenant, the Guarantor hereby expressly covenants
and agrees for the benefit of the Guaranteed Parties that all obligations and
liabilities owing by the Borrower to the Guarantor of whatsoever description
including, without limitation, all intercompany receivables owing to the
Guarantor from the Borrower ("Junior Claims") shall be subordinate and junior in
right of payment to all obligations of the Borrower to the Administrative Agent
and other Guaranteed Parties under the terms of the Credit Agreement and the
other Loan Documents ("Senior Claims").
If an Event of Default shall occur, then, unless and until such Event
of Default shall have been cured, waived, or shall have ceased to exist, no
direct or indirect payment (in cash, property, securities by setoff or
otherwise) shall be made by the Borrower to the Guarantor on account of or in
any manner in respect of any Junior Claim and the Guarantor shall not receive or
accept any such direct or indirect payment.
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In the event of a Proceeding (as hereinafter defined), all Senior
Claims shall first be paid in full before any direct or indirect payment or
distribution (in cash, property, securities by setoff or otherwise) shall be
made to any Guarantor on account of or in any manner in respect of any Junior
Claim. For the purposes of the previous sentence, "Proceeding" means the
Borrower or the Guarantor shall commence a voluntary case concerning itself
under the Bankruptcy Code of 1978, as amended (the "Bankruptcy Code") or any
other applicable bankruptcy laws; or any involuntary case is commenced against
the Borrower or the Guarantor; or a custodian (as defined in the Bankruptcy Code
or any other applicable bankruptcy laws) is appointed for, or takes charge of,
all or any substantial part of the property of the Borrower or the Guarantor, or
the Borrower or the Guarantor commences any other proceedings under any
reorganization arrangement, adjustment of debt, relief of debtor, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to the Borrower or the Guarantor, or any such
proceeding is commenced against the Borrower or the Guarantor, or the Borrower
or the Guarantor is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; or the Borrower or
the Guarantor suffers any appointment of any custodian or the like for it or any
substantial part of its property; or the Borrower or the Guarantor makes a
general assignment for the benefit of creditors; or the Borrower or the
Guarantor shall fail to pay, or shall state that it is unable to pay, or shall
be unable to pay, its debts generally as they become due; or the Borrower or the
Guarantor shall call a meeting of its creditors with a view to arranging a
composition or adjustment of its debts; or the Borrower or the Guarantor shall
by any act or failure to act indicate its consent to, approval of or
acquiescence in any of the foregoing; or any corporate action shall be taken by
the Borrower or the Guarantor for the purpose of effecting any of the foregoing.
In the event any direct or indirect payment or distribution is made to
the Guarantor in contravention of this Section 11, such payment or distribution
shall be deemed received in trust for the benefit of the Administrative Agent
and other Guaranteed Parties and shall be immediately paid over to the
Administrative Agent for application against the Guaranteed Obligations in
accordance with the terms of the Credit Agreement.
The Guarantor agrees to execute such additional documents as the
Administrative Agent may reasonably request to evidence the subordination
provided for in this Section 11.
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Section 12. Automatic Acceleration in Certain Events. Upon the
occurrence of an Event of Default specified in Section 9.1.(e) or 9.1.(f) of the
Credit Agreement, all Guaranteed Obligations shall automatically become
immediately due and payable by the Guarantor, without notice or other action on
the part of the Administrative Agent or other Guaranteed Parties, and regardless
of whether payment of the Guaranteed Obligations by the Borrower has then been
accelerated. In addition, if any event described in Section 9.1.(e) or 9.1.(f)
of the Credit Agreement should occur with respect to the Guarantor, then the
Guaranteed Obligations shall automatically become immediately due and payable by
the Guarantor, without notice or other action on the part of the Administrative
Agent or other Guaranteed Parties, and regardless of whether payment of the
Guaranteed Obligations by the Borrower has then been accelerated.
Section 13. Savings Clause. (a) It is the intent of the Guarantor and
the Guaranteed Parties that the Guarantor's maximum liability hereunder shall
be, but not in excess of:
(i) in a Proceeding commenced by or against the 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 the Guarantor to the Guaranteed Parties) to be
avoidable or unenforceable against the 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 Proceeding commenced by or against the Guarantor
under the Bankruptcy Code subsequent to 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 the Guarantor to the Guaranteed Parties) to be
avoidable or unenforceable against the Guarantor under any state
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 Proceeding commenced by or against the 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
the Guarantor to the Guaranteed Parties) to be avoidable or
unenforceable against the Guarantor under such 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 the 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 the 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, the maximum Guaranteed Obligations
for which the 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 the Guarantor to the Guaranteed
Parties), as so reduced, to be subject to avoidance under the Avoidance
Provisions.
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(c) This Section 13 shall be applicable only in connection with a
Proceeding brought by or against the Guarantor and is intended solely to
preserve the rights of the Guaranteed Parties hereunder to the maximum extent
that would not cause the Guaranteed Obligations of the Guarantor to be subject
to avoidance under the Avoidance Provisions in connection with any such
Proceeding. Neither the 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 the Guarantor or such other Person outside of any
Proceeding.
Section 14. Information. The Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower'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
the Guarantor assumes and incurs hereunder, and agrees that none of the
Guaranteed Parties will have any duty to advise the Guarantor of information
known to it or any of them regarding such circumstances or risks.
Section 15. Governing Law. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of GEORGIA.
Section 16. Jurisdiction/JURY TRIAL WAIVER/OTHER MATTERS. (a) EACH OF
THE GUARANTEED PARTIES AND THE GUARANTOR ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS GUARANTY OR THE RELATIONSHIP OF THE
GUARANTOR AND THE GUARANTEED PARTIES ESTABLISHED HEREBY, WOULD BE BASED UPON
DIFFICULT AND COMPLEX ISSUES. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY
LAW, EACH OF THE GUARANTOR AND THE GUARANTEED PARTIES HEREBY WAIVES TRIAL BY
JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT IN WHICH AN
ACTION MAY BE COMMENCED BY OR AGAINST THE GUARANTOR ARISING OUT OF THIS GUARANTY
OR BY REASON OF ANY OTHER CAUSE OR DISPUTE WHATSOEVER BETWEEN THE GUARANTOR AND
ANY GUARANTEED PARTY OF ANY KIND OR NATURE.
(b) EACH OF THE GUARANTOR AND THE GUARANTEED PARTIES AGREES THAT THE
FEDERAL COURT OF THE NORTHERN DISTRICT OF GEORGIA OR ANY STATE COURT LOCATED IN
XXXXXX COUNTY, GEORGIA SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS
OR DISPUTES BETWEEN THE GUARANTOR AND ANY GUARANTEED PARTY PERTAINING DIRECTLY
OR INDIRECTLY TO THIS GUARANTY OR TO ANY MATTER ARISING HEREFROM. THE GUARANTOR
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
PROCEEDING COMMENCED IN SUCH COURT. THE GUARANTOR AND THE GUARANTEED PARTIES
WAIVE ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
PROCEEDING IN ANY SUCH COURT OR THAT SUCH PROCEEDING WAS BROUGHT IN AN
INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME.
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(c) THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED
TO PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT OR ANY OTHER GUARANTEED
PARTY OR THE ENFORCEMENT BY THE AGENT OR ANY OTHER GUARANTEED PARTY OF ANY
JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.
(d) THE GUARANTOR AGREES THAT ALL OF ITS PAYMENT OBLIGATIONS HEREUNDER
SHALL BE ABSOLUTE, UNCONDITIONAL AND, FOR THE PURPOSES OF MAKING PAYMENTS
HEREUNDER, THE GUARANTOR HEREBY WAIVES ANY RIGHT TO ASSERT ANY SETOFF,
COUNTERCLAIM OR CROSS-CLAIM.
(e) THE GUARANTOR ACKNOWLEDGES THAT ALL OF THE WAIVERS IN THIS SECTION
HAVE BEEN MADE WILLINGLY, WITH THE ADVICE OF LEGAL COUNSEL AND WITH A FULL
UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF.
Section 17. Loan Accounts. The Administrative Agent on behalf of the
other Guaranteed Parties may maintain books and accounts setting forth the
amounts of principal, interest and other sums paid and payable with respect to
the Guaranteed Obligations, and in the case of any dispute relating to any
Guaranteed Obligation, the entries in such account shall be binding upon the
Guarantor as to the outstanding amount of such Guaranteed Obligations and the
amounts paid and payable with respect thereto absent manifest error. The failure
of the Administrative Agent to maintain such books and accounts shall not in any
way relieve or discharge the Guarantor of any of its obligations hereunder.
Section 18. Waiver of Remedies. No delay or failure on the part of the
Administrative Agent or any other Guaranteed Party in the exercise of any right
or remedy it may have against the Guarantor hereunder or otherwise shall operate
as a waiver thereof, and no single or partial exercise by the Lender of any such
right or remedy shall preclude other or further exercise thereof or the exercise
of any other such right or remedy.
Section 19. Successors and Assigns. Each reference herein to the
Administrative Agent or any other Guaranteed Party shall be deemed to include
the Administrative Agent's and such other Guaranteed Party's successors and
assigns (including, but not limited to, any holder of the Guaranteed
Obligations) in whose favor the provisions of this Guaranty also shall inure,
and each reference herein to the Guarantor shall be deemed to include the
Guarantor's executors, administrators, successors and assigns, upon whom this
Guaranty also shall be binding. The Administrative Agent and any other
Guaranteed Party may assign, transfer or sell any Guaranteed Obligation, or
grant or sell participation in any Guaranteed Obligations, pursuant to the terms
of the Loan Documents, to any Person or entity without the consent of, or notice
to, the Guarantor and without releasing, discharging or modifying the
Guarantor's obligations hereunder. The Guarantor hereby consents to the delivery
by the Administrative Agent or any other Guaranteed Party to any assignee,
transferee or participant of any financial or other information regarding the
Borrower or the Guarantor. The Guarantor may not assign or transfer its
obligations hereunder to any Person.
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Section 20. Survival of Agreement. All agreements, representations and
warranties made herein shall survive the execution and delivery of this Guaranty
and the Credit Agreement, the making of the Loans and the execution and delivery
of the other Loan Documents.
Section 21. Amendments. This Guaranty may not be amended except in
writing signed by the Administrative Agent and the Guarantor.
Section 22. Payments/Expenses. All payments made by the Guarantor
pursuant to this Guaranty shall be made in the lawful currency of the United
States of America, in immediately available funds to the office of the
Administrative Agent set forth on Annex I to the Credit Agreement not later than
11:00 a.m., Atlanta time, on the date one Business Day after demand therefor.
The Guarantor shall pay, on demand, all costs and expenses incurred by the
Guaranteed Parties in the collection and enforcement of this Guaranty including
the reasonable fees and disbursements of counsel to the Guaranteed Parties if
collection and/or enforcement is sought by or through an attorney.
Section 23. Notices. All notices, demands or other communications to
the Guarantor hereunder shall be in writing and shall be mailed or hand
delivered or sent via facsimile transmission to the address for the Guarantor
set forth below its signature hereto. All such notices, demands and
communications shall be deemed received by the Guarantor (a) if personally
delivered or by messenger or overnight courier or delivered via facsimile
transmission, on the date of delivery thereof or (b) if through the United
States mail, on the earlier of (i) the date three days after the posting thereof
and (ii) the date of actual receipt by the Guarantor.
Section 24. Severability. In case any provision of this Guaranty shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 25. Headings. Section headings used in this Guaranty are for
convenience only and shall not affect the construction of this Guaranty.
Section 26. Review of Credit Agreement/Loan Documents. The Guarantor
acknowledges that, prior to the execution and delivery of this Guaranty, the
Guarantor has had the opportunity to review and ask questions regarding the
Credit Agreement and the other Loan Documents referred to therein and to discuss
the same and this Guaranty with its counsel.
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IN WITNESS WHEREOF, the Guarantor has duly executed and delivered this
Guaranty as of the date and year first written above.
XXXX CONTRACT FLOORING
SERVICES, INC.
By:______________________________________________
Title:_____________________________________
Address for Notices:
c/o Shaw Industries, Inc.
Xxxx Xxxxxx Xxxxxx 0000
Xxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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