SUBSIDIARY GUARANTY AGREEMENT
Exhibit 10.1.2
THIS SUBSIDIARY GUARANTY AGREEMENT (the “Agreement”), dated as of April 20, 2009, by
and among XXXXXX INVESTMENT MANAGEMENT CORP., a Maryland corporation (the “Borrower”), each
of the subsidiaries of the Borrower listed on Schedule I hereto (each such subsidiary
individually, a “Guarantor” and collectively, the “Guarantors”) and SUNTRUST BANK,
a Georgia banking corporation, as administrative agent (the “Administrative Agent”) for the
benefit of itself and the several banks and other financial institutions (the “Lenders”)
from time to time party to the Revolving Credit Agreement, dated as of the date hereof, by and
among the Borrower, the several banks and other financial institutions from time to time party
thereto (the “Lenders”), the Administrative Agent, and SunTrust Bank, as Issuing Bank and
as Swingline Lender (as amended, restated, supplemented or otherwise modified from time to time,
the “Credit Agreement”; capitalized terms used herein and not otherwise defined herein
shall the meanings assigned to such terms in the Credit Agreement).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to establish a revolving
credit facility in favor of the Borrower;
WHEREAS, each of the Guarantors is a direct or indirect Subsidiary of the Borrower and will
derive substantial benefit from the making of Loans by the Lenders and the issuance of Letters of
Credit by the Issuing Bank; and
WHEREAS, it is a condition precedent to the obligations of the Administrative Agent, the
Issuing Bank, the Swingline Lender, and the Lenders under the Credit Agreement that each Guarantor
execute and deliver to the Administrative Agent a Subsidiary Guaranty Agreement in the form hereof,
and each Guarantor wishes to fulfill said condition precedent;
NOW, THEREFORE, in order to induce Lenders to extend the Loans and the Issuing Bank to issue
Letters of Credit and to make the financial accommodations as provided for in the Credit Agreement
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Guarantee. Each Guarantor unconditionally guarantees, jointly with the
other Guarantors and severally, as a primary obligor and not merely as a surety, (i) the due and
punctual payment of all Obligations including, without limitation, (A) the principal of and
premium, if any, and interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in
such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (B) each payment required to be made by the Borrower
under the Credit Agreement in respect of any Letter of Credit, when and as due, including payments
in respect of reimbursement or disbursements, interest thereon and obligations to provide cash
collateral, and (C) all other monetary obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Loan
Parties to the Administrative Agent and the Lenders under the
Credit Agreement and the other Loan Documents, (ii) the due and punctual performance of all
covenants, agreements, obligations and liabilities of the Loan Parties under or pursuant to the
Credit Agreement and the other Loan Documents; and (iii) the due and punctual payment and
performance of all obligations of the Borrower, monetary or otherwise, arising under any Hedging
Transaction incurred to limit interest rate or fee fluctuation with respect to the Loans and
Letters of Credit entered into with a counterparty that was a Lender or an Affiliate of a Lender at
the time such Hedging Transaction was entered into (each such person a “Specified Hedge
Provider”; the Administrative Agent, the Lenders and the Specified Hedge Providers,
collectively, the “Guaranteed Parties” and each individually a “Guaranteed Party”)
(all the monetary and other obligations referred to in the preceding clauses (i) through
(iii) being collectively called the “Guaranteed Obligations”). Each Guarantor further
agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without
notice to or further assent from such Guarantor, and that such Guarantor will remain bound upon its
guarantee notwithstanding any extension or renewal of any Guaranteed Obligations.
Section 2. Obligations Not Waived. To the fullest extent permitted by applicable law,
each Guarantor waives presentment or protest to, demand of or payment from the other Loan Parties
of any of the Guaranteed Obligations, and also waives notice of acceptance of its guarantee and
notice of protest for nonpayment. To the fullest extent permitted by applicable law, the
obligations of each Guarantor hereunder shall not be affected by (i) the failure of the
Administrative Agent or any Lender to assert any claim or demand or to enforce or exercise any
right or remedy against the Borrower or any other Guarantor under the provisions of the Credit
Agreement, any other Loan Document or otherwise, (ii) the failure of any Guaranteed Party to assert
any claim or demand or to enforce or exercise any right or remedy against the Borrower or any other
Guarantor under the provisions or any instruments, agreements or documents executed in connection
with any Hedging Transaction incurred to limit interest rate or fee fluctuation with respect to the
Loans and Letters of Credit entered into with a Specified Hedge Provider (each such document, a
“Hedging Document”), (iii) any rescission, waiver, amendment or modification of, or any
release from any of the terms or provisions of, this Agreement, any other Loan Document, any
Hedging Document, any guarantee or any other agreement, including with respect to any other
Guarantor under this Agreement, or (iv) the failure to perfect any security interest in, or the
release of, any of the security held by or on behalf of the Administrative Agent or any Guaranteed
Party.
Section 3. Guarantee of Payment. Each Guarantor further agrees that its guarantee
constitutes a guarantee of payment when due and not of collection, and waives any right to require
that any resort be had by the Administrative Agent or any Guaranteed Party to any of the security
held for payment of the Guaranteed Obligations or to any balance of any deposit account or credit
on the books of the Administrative Agent or any Guaranteed Party in favor of the Borrower or any
other Person.
Section 4. No Discharge or Diminishment of Guarantee. The obligations of each
Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination
for any reason (other than the indefeasible payment in full in cash of the Guaranteed Obligations),
including any claim of waiver, release, surrender, alteration or compromise of any of the
Guaranteed Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment
or termination whatsoever by reason of the invalidity, illegality or unenforceability of the
Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected
by the failure of the Administrative Agent or any Guaranteed Party to assert any claim or demand or
to enforce any remedy under the Credit Agreement, any other Loan Document, any Hedging Document or
any other agreement, by any waiver or modification of any provision of any thereof, by any default,
failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations, or by any
other act or omission that may or might in any manner or to the extent vary the risk of any
Guarantor or that would otherwise operate as a discharge of each Guarantor as a matter of law or
equity (other than the indefeasible payment in full in cash of all the Obligations).
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Section 5. Defenses of Borrower Waived. To the fullest extent permitted by applicable
law, each Guarantor waives any defense based on or arising out of any defense of any Loan Party or
the unenforceability of the Guaranteed Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of any Loan Party, other than the final and indefeasible
payment in full in cash of the Guaranteed Obligations. The Administrative Agent and the Guaranteed
Parties may, at their election, foreclose on any security held by one or more of them by one or
more judicial or nonjudicial sales, accept an assignment of any such security in lieu of
foreclosure, compromise or adjust any part of the Guaranteed Obligations, make any other
accommodation with any other Loan Party or any other guarantor, without affecting or impairing in
any way the liability of any Guarantor hereunder except to the extent the Guaranteed Obligations
have been fully, finally and indefeasibly paid in cash. Pursuant to applicable law, each Guarantor
waives any defense arising out of any such election even though such election operates, pursuant to
applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right
or remedy of such Guarantor against the Borrower or any other Guarantor or guarantor, as the case
may be, or any security.
Section 6. Agreement to Pay; Subordination. In furtherance of the foregoing and not
in limitation of any other right that the Administrative Agent or any Guaranteed Party has at law
or in equity against any Guarantor by virtue hereof, upon the failure of the Borrower or any other
Loan Party to pay any Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby promises to and will
forthwith pay, or cause to be paid, to the Administrative Agent for the benefit of the Guaranteed
Parties in cash the amount of such unpaid Obligation. Upon payment by any Guarantor of any sums to
the Administrative Agent, all rights of such Guarantor against any Loan Party arising as a result
thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall
in all respects be subordinate and junior in right of payment to the prior indefeasible payment in
full in cash of all the Guaranteed Obligations. In addition, any indebtedness of any Loan Party
(other than that set forth on Schedule 7.1 to the Credit Agreement and in effect on the Closing
Date) now or hereafter held by any Guarantor is hereby subordinated in right of payment to the
prior payment in full in cash of the Guaranteed Obligations; provided, however, that if no Default
or Event of Default has occurred and is continuing, payment of such indebtedness may be made as
permitted under the Credit Agreement. If any amount shall erroneously be paid to any Guarantor on
account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii)
any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the
Administrative Agent and the Guaranteed Parties and shall forthwith be paid to the Administrative
Agent to be credited against the payment of the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms of the Loan Documents.
Section 7. Information. Each Guarantor assumes all responsibility for being and
keeping itself informed of other Loan Parties’ 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 Administrative Agent or 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.
Section 8. Indemnity and Subrogation. In addition to all such rights of indemnity and
subrogation as the Guarantors may have under applicable law (but subject to Section 6), the
Borrower agrees that (a) in the event a payment shall be made by any Guarantor under this
Agreement, the Borrower shall indemnify such Guarantor for the full amount of such payment and such
Guarantor shall be subrogated to the rights of the person to whom such payment shall have been made
to the extent of such payment and (b) in the event any assets of any Guarantor shall be sold to
satisfy a claim of any Guaranteed Party under this Agreement, the Borrower shall indemnify such
Guarantor in an amount equal to the greater of the book value or the fair market value of the
assets so sold.
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Section 9. Contribution and Subrogation. Each Guarantor (a “Contributing
Guarantor”) agrees (subject to Section 6) that, in the event a payment shall be made by
any other Guarantor under this Agreement or assets of any other Guarantor shall be sold to satisfy
a claim of any Guaranteed Party and such other Guarantor (the “Claiming Guarantor”) shall
not have been fully indemnified by the Borrower as provided in Section 8, the Contributing
Guarantor shall indemnify the Claiming Guarantor in an amount equal to the amount of such payment
or the greater of the book value or the fair market value of such assets, as the case may be, in
each case multiplied by a fraction of which the numerator shall be the net worth of the
Contributing Guarantor on the date hereof and the denominator shall be the aggregate net worth of
all the Guarantors on the date hereof (or, in the case of any Guarantor becoming a party hereto
pursuant to Section 21, the date of the Supplement hereto executed and delivered by such
Guarantor). Any Contributing Guarantor making any payment to a Claiming Guarantor pursuant to this
Section 9 shall be subrogated to the rights of such Claiming Guarantor under
Section 8 to the extent of such payment.
Section 10. Subordination. Notwithstanding any provision of this Agreement to the
contrary, all rights of the Guarantors under Section 8 and Section 9 and all other
rights of indemnity, contribution or subrogation under applicable law or otherwise shall be fully
subordinated to the indefeasible payment in full in cash of the Guaranteed Obligations; provided,
however, that if no Default or Event of Default has occurred and is continuing, payment with
respect to such rights may be made as permitted under the Credit Agreement. No failure on the part
of the Borrower or any Guarantor to make the payments required under applicable law or otherwise
shall in any respect limit the obligations and liabilities of any Guarantor with respect to its
obligations hereunder, and each Guarantor shall remain liable for the full amount of the
obligations of such Guarantor hereunder.
Section 11. Representations and Warranties. Each Guarantor represents and warrants as
to itself that all representations and warranties relating to it (as a Subsidiary of the Borrower)
contained in the Credit Agreement are true and correct.
Section 12. Termination. The guarantees made hereunder (i) shall terminate when all
the Guaranteed Obligations (other than those Guaranteed Obligations relating to the Hedging
Obligations) have been paid in full in cash and the Lenders have no further commitment to lend
under the Credit Agreement, the LC Exposure has been reduced to zero and the Issuing Bank has no
further obligation to issue Letters of Credit under the Credit Agreement and (ii) shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of
any Obligation is rescinded or must otherwise be restored by any Lender or any Guarantor upon the
bankruptcy or reorganization of the Borrower, any Guarantor or otherwise. In connection with the
foregoing, the Administrative Agent shall execute and deliver to such Guarantor or Guarantor’s
designee, at such Guarantor’s expense, any documents or instruments, without representation or
recourse, which such Guarantor shall reasonably request from time to time to evidence such
termination and release.
Section 13. Binding Effect; Several Agreement; Assignments. Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises and agreements by or on behalf of
the Guarantors that are contained in this Agreement shall bind and inure to the benefit of each
party hereto and their respective successors and assigns. This Agreement shall become effective as
to any Guarantor when a counterpart hereof executed on behalf of such Guarantor shall have been
delivered to the Administrative Agent, and a counterpart hereof shall have been executed on behalf
of the Administrative Agent, and thereafter shall be binding upon such Guarantor and the
Administrative Agent and their respective successors and assigns, and shall inure to the benefit of
such Guarantor, the Administrative Agent and the Guaranteed Parties, and their respective
successors and assigns, except that no Guarantor shall have the right to assign its rights or
obligations hereunder or any interest herein (and any such attempted
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assignment shall be void). If all of the capital stock of a Guarantor is sold, transferred or
otherwise disposed of pursuant to a transaction permitted by the Credit Agreement, such Guarantor
shall be released from its obligations under this Agreement without further action. This Agreement
shall be construed as a separate agreement with respect to each Guarantor and may be amended,
modified, supplemented, waived or released with respect to any Guarantor without the approval of
any other Guarantor and without affecting the obligations of any other Guarantor hereunder.
Section 14. Waivers; Amendment.
(a) No failure or delay of the Administrative Agent of any kind in exercising any power, right
or remedy hereunder and no course of dealing between any Guarantor on the one hand the and
Administrative Agent or any holder of any Note on the other hand shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power, right or remedy hereunder, under any
other Loan Document or under any Hedging Document, or any abandonment or discontinuance of steps to
enforce such a power, right or remedy, preclude any other or further exercise thereof or the
exercise of any other power, right or remedy. The rights and of the Administrative Agent hereunder
and of the Guaranteed Parties under the other Loan Documents and the Hedging Documents, as
applicable, are cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or consent to any departure by any
Guarantor therefrom shall in any event be effective unless the same shall be permitted by
subsection (b) below, and then such waiver and consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on any Guarantor in any case
shall entitle such Guarantor to any other or further notice in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to a written agreement entered into between the Guarantors with respect to which such
waiver, amendment or modification relates and the Administrative Agent, with the prior written
consent of the Required Lenders (except as otherwise provided in the Credit Agreement).
Section 15. Notices. All communications and notices hereunder shall be in writing and
given as provided in Section 10.1 of the Credit Agreement. All communications and notices
hereunder to each Guarantor shall be given to it at its address set forth on Schedule I
attached hereto.
Section 16. Severability. Any provision of this Agreement held to be illegal, invalid
or unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent
of such illegality, invalidity or unenforceability without affecting the legality, validity or
enforceability of the remaining provisions hereof or thereof; and the illegality, invalidity or
unenforceability of a particular provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 17. Counterparts; Integration. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when taken together
shall constitute a single contract (subject to Section 13), and shall become effective as
provided in Section 13. Delivery of an executed signature page to this Agreement by
facsimile or other electronic transmission shall be as effective as delivery of a manually executed
counterpart of this Agreement. This Agreement constitutes the entire agreement among the parties
hereto regarding the subject matters hereof and supersedes all prior agreements and understandings,
oral or written, regarding such subject matter.
Section 18. Rules of Interpretation. The rules of interpretation specified in
Section 1.4 of the Credit Agreement shall be applicable to this Agreement.
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Section 19. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and be governed by the law of the
State of New York.
(b) Each Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the exclusive jurisdiction of the United States courts located within the Southern
district in the State of New York, and of the Supreme Court of the State of New York sitting in New
York county and any appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, any other Loan Document or any Hedging Document or the transactions
contemplated hereby or thereby, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York state court or, to the extent
permitted by applicable law, such Federal court. Each Guarantor agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent, the Issuing Bank or any Guaranteed Party may
otherwise have to bring any action or proceeding relating to this Agreement against any Guarantor
or its properties in the courts of any jurisdiction.
(c) Each Guarantor irrevocably and unconditionally waives any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding described in
paragraph (b) of this Section and brought in any court referred to in paragraph (b) of this
Section. Each party hereto irrevocably waives, to the fullest extent permitted by applicable law,
the defense of an inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each Guarantor irrevocably consents to the service of process in the manner provided for
notices in Section 10.1 of the Credit Agreement. Nothing in this Agreement will affect the right
of the Administrative Agent or any Guaranteed Party to serve process in any other manner permitted
by law.
Section 20. Waiver of Jury Trial. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY
HEDGING DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (ii) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS AND THE HEDGING DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION.
Section 21. Additional Guarantors. Upon execution and delivery after the date hereof
by the Administrative Agent and such Subsidiary of an instrument in the form of Annex 1,
each Subsidiary that is required to become a party to this Agreement pursuant to Section 5.12 of
the Credit Agreement shall become a Guarantor hereunder with the same force and effect as if
originally named as a Guarantor herein. The execution and delivery of any instrument adding an
additional Guarantor as a party to this Agreement shall not require the consent of any other
Guarantor hereunder. The rights and obligations of each Guarantor hereunder shall remain in full
force and effect notwithstanding the addition of any new Guarantor as a party to this Agreement.
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Section 22. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Guaranteed Party is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other Indebtedness at any time owing by
such Guaranteed Party to or for the credit or the account of any Guarantor against any or all the
obligations of such Guarantor now or hereafter existing under this Agreement, the other Loan
Documents and the Hedging Documents held by such Guaranteed Party, irrespective of whether or not
such Person shall have made any demand under this Agreement, any other Loan Document or any Hedging
Document and although such obligations may be unmatured. The rights of each Guaranteed Party under
this Section 22 are in addition to other rights and remedies (including other rights of
setoff) that such Guaranteed Party may have.
Section 23. Savings Clause.
(a) It is the intent of each Guarantor and the Administrative Agent that each Guarantor’s
maximum obligations hereunder shall be, but not in excess of:
(i) in a case or proceeding commenced by or against any Guarantor under the provisions
of Title 11 of the United States Code, 11 U.S.C. §§101 et seq. (the “Bankruptcy
Code”) on or within two years 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 owed to the Administrative Agent or the
Guaranteed Parties) to be avoidable or unenforceable against such Guarantor under
(i) Section 548 of the Bankruptcy Code or (ii) 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 any Guarantor under the Bankruptcy
Code subsequent to two years 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 Administrative Agent or the Guaranteed
Parties) to be avoidable or unenforceable against such 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 case or proceeding commenced by or against any 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 Administrative Agent or the Guaranteed Parties) to be avoidable or unenforceable against
such 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.
(b) The substantive laws under which the possible avoidance or unenforceability of the
Guaranteed Obligations (or any other obligations of such Guarantor to the Administrative Agent or
the Guaranteed Parties) as may be determined in any case or proceeding shall hereinafter be
referred to as the “Avoidance Provisions”. To the extent set forth in
Section 23(a)(i), (ii), and (iii), but only to the extent that the
Guaranteed Obligations would otherwise be subject to avoidance or found unenforceable under the
Avoidance Provisions, if any 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 such Guarantor insolvent, or leave such Guarantor with an unreasonably
small capital to conduct its business, or cause such Guarantor to have incurred debts (or to
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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 the contribution by such Guarantor, 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 Administrative Agent or the Guaranteed Parties), as so
reduced, to be subject to avoidance or unenforceability under the Avoidance Provisions.
(c) This Section 23 is intended solely to preserve the rights of the Administrative
Agent and the Guaranteed Parties hereunder to the maximum extent that would not cause the
Guaranteed Obligations of such Guarantor to be subject to avoidance or unenforceability under the
Avoidance Provisions, and neither the Guarantors nor any other Person shall have any right or claim
under this Section 23 as against the Administrative Agent or Guaranteed Parties that would
not otherwise be available to such Person under the Avoidance Provisions.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and
year first above written.
| EACH OF THE SUBSIDIARIES LISTED ON SCHEDULE I HERETO |
||||
| By: | /s/ Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| Title: | Secretary | |||
| XXXXXX INVESTMENT MANAGEMENT CORP. |
||||
| By: | /s/ Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| Title: | Secretary | |||
| SUNTRUST BANK, as Administrative Agent |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Managing Director | |||
