AMENDMENT NO. 3
This AMENDMENT NO. 3 (this "Amendment") to the Bank Credit Agreement
dated December 11, 1998 (as previously amended by Amendment No. 1 dated
February 4, 1999 and Amendment No. 2 dated June 15, 1999, collectively, the
"Credit Agreement"), is entered into as of October 28, 1999, by and between
Xxxxxxx Leasing Corp., a Delaware corporation (the "Xxxxxxx"), First Union
National Bank, a national banking association ("First Union") and
BankBoston, N.A., a national banking association ("BankBoston") (each of
First Union and BankBoston being referred to hereinafter as a "Lender" and
collectively as the "Lenders").
WHEREAS, the Lenders have requested that Xxxxxxx agree to amend certain
of the terms and conditions of the Credit Agreement, and Xxxxxxx has agreed
to such amendments in consideration of certain other extensions of credit;
and
WHEREAS, capitalized terms used and not defined herein shall have the
meanings ascribed thereto in the Credit Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. AMENDMENT TO THE CREDIT AGREEMENT.
Section 1.1 Section 1.1(a) of the Credit Agreement is hereby
amended by deleting the section in its entirety and replacing it with the
following:
Committed Loans ("Facility A") in an aggregate outstanding principal
amount of up to the lesser of:
(i) the Commitment Amount; and
(ii) the Borrowing Base in effect from time to time (the "Borrowing
Base Amount") less the sum of (x) the amount of the Loans outstanding
under Facility B, if any, and (y) all other indebtedness of Xxxxxxx
including but not limited to (a) guaranties by Xxxxxxx of Indebtedness
of others ("Guaranties"), (b) promissory notes payable by Xxxxxxx to
Xxxxxxx Truck Leasing Corporation (also referred to as "Xxxxxxx Notes
Securing Collateral Trust Debentures"), (c) the amount of Loans
outstanding under Facility A, and (d) the Stated Amount of outstanding
letters of credit and other similar instruments issued for the account
of Xxxxxxx pursuant to which Xxxxxxx is obligated to reimburse a bank
or other Person in respect of amounts paid or to be paid under the
letter of credit or similar instrument ("Letters of Credit") (the net
foregoing amount is referred to as the "Net Borrowing Base"). For the
purpose of the foregoing calculation of the amount of Indebtedness,
contingent obligations of Xxxxxxx, including but not limited to
Guaranties, will be deemed to be the full amount of the potential
liability, and liabilities under Letters of Credit shall be the Stated
Amount of the Letters of Credit.
Advances under Facility A will be divided equally between the Lenders
such that each Lender's commitment under Facility A will be equal to
half of the lesser of the foregoing subpart (i) and subpart (ii).
The availability of advances of Facility A shall be limited to the
lesser of (i) the Commitment Amount less the Stated Amount of
outstanding letters of credit issued by any other Lenders for the
account of Xxxxxxx less outstanding Loans under Facility A, and (ii)
the Net Borrowing Base.
Section 1.2 Section 4.1 of the Credit Agreement is hereby amended
by deleting the first eight lines of the Section and replacing it with the
following:
At any time after the date of this Agreement, any of the Lenders may,
by written notice to Xxxxxxx, require that all of Xxxxxxx'
Indebtedness to Lenders, be fully secured by Xxxxxxx. Upon delivery of
such notice by any Lender to Xxxxxxx, the Lenders shall have, and
Xxxxxxx shall and does hereby (effective upon the delivery of such
notice), assign, transfer and grant to the Lenders, jointly, a
security interest and first priority lien in and to the following and
all proceeds thereof, to secure the payment of all Indebtedness of
Xxxxxxx to the Lenders, now existing or arising in the future, (i) all
Eligible Equipment.
Section 1.3 The term "Exhibit B" appearing in Section 7.10 of
the Credit Agreement is replaced with the term "Exhibit C". A copy of Exhibit
C is attached to this Amendment and incorporated in the Credit Agreement by
reference.
Section 1.4 Line 13 of Section 7.10 of the Credit Agreement is
replaced in its entirety with the following:
Previously reported to any Lender; (iv) a schedule describing in
reasonable detail all Indebtedness of Xxxxxxx; and (v) a calculation
of the remaining Facility A availability under Section 1.1 of the
Credit Agreement.
Section 1.5 Section 16.17 of the Credit Agreement is replaced
in its entirety with the following:
16.17 "Indebtedness", as applied to a Person, means (a) all items,
except items of capital stock or of surplus, which in accordance
with generally accepted accounting principles would be included
in determining total liabilities as shown on the liability side
of a balance sheet of such person as at the date as of which
Indebtedness is to be determined, excluding all current
liabilities of such Person (except current liabilities which
represent liabilities for borrowed funds), liabilities or
reserves for deferred income tax and reserves for liabilities
pursuant to a self-insurance program of such person, (b) to the
extent not included into he foregoing, all indebtedness,
obligations, and liabilities secured by any mortgage, pledge,
lien, conditional sale or other title retention agreement, or
other security interest to which any property or asset owned or
held by such Person is subject, whether or not the indebtedness,
obligations or liabilities secured thereby shall have been,
assumed, (c) to the extent not included in the foregoing, all
indebtedness, obligations and liabilities of others which such
Person has directly or indirectly guaranteed, endorsed (other
than for collection or deposit in the ordinary course of
business), discounted, sold with recourse or for less than face
value or agreed (contingently or otherwise) to purchase or
repurchase or otherwise acquire or in respect of which such
Person has agreed to supply or advance funds (whether by way of
Loan, stock purchase, capital contribution or otherwise) or
otherwise to become directly or indirectly liable, (d) all
obligations to reimburse any bank or other Person in respect of
amounts paid or to be paid under a letter of credit or similar
instrument, and (e) to the extent not included in the foregoing,
lease obligations capitalized according to FASB 13.
Section 1.5 A new Section 16.46 is added to the credit Agreement
which provides as follows:
16.46 Stated Amount of each Letter of Credit shall, at any time
mean the maximum amount available to be drawn thereunder, in each case
determined without regard to whether the conditions to drawing could then
be met, but after giving effect to all previous drawings made thereunder.
Section 2. CONDITIONS TO EFFECTIVENESS. This Amendment shall
become effective upon receipt by each of the Lenders of a duly executed
signature page hereto from Xxxxxxx and each of the Lenders.
Section 3. REPRESENTATIONS AND WARRANTIES. Xxxxxxx hereby
represents and warrants to the Lenders as follows:
Section 3.1 Representations and Warranties in Credit Agreement.
The representations and warranties of Xxxxxxx contained in the Credit Agreement,
as amended hereby, are true and correct in all material respects when made
and continue to be true and correct in all material respects on the date
hereof, except as such representations and warranties are affected by the
transactions contemplated or permitted by the Credit Agreement, as amended
hereby, or are expressly made as of a prior date.
Section 3.2 Authority, No Conflicts, etc. The execution,
delivery and performance by Xxxxxxx of this Amendment and the consummation
of the transactions contemplated hereby, (i) are within the corporate powers
of Xxxxxxx and have been duly authorized by all necessary corporate action on
the part of Xxxxxxx, (ii) do not require any approval or consent of, or
notice to or filing with, any governmental agency or authority, any court
or other tribunal, or any other Person which has not been given or obtained,
(iii) do not violate any provisions of any law, rule, or regulation or any
provision of any order, judgment, injunction, or decree presently in effect,
or any provision of the charter documents or by-laws of Xxxxxxx, (iv) do not
result in any breach of or constitute a default under any other agreement
or instrument to which Xxxxxxx is a party or by which it or any of its
properties are bound, and (v) do not result in or require the creation or
imposition of any mortgage, deed of trust, pledge, lien, security interest
or other charge or encumbrance of any nature upon any of the assets or
properties of Xxxxxxx.
Section 4. NO OTHER AMENDMENTS OR WAIVERS. Xxxxxxx acknowledges
that except as expressly provided in this Amendment, all of the terms and
conditions of the Credit Agreement shall remain in full force and effect
without any defense, counterclaim, or right or claim of setoff. This
Amendment does not, and shall not, constitute a waiver of any present or
future Default or Event of Default. Nothing in this Amendment shall be
construed to imply any willingness on the part of the Lenders to grant any
similar or other future amendment of any of the terms and conditions of the
Credit Agreement.
Section 5. EXECUTION COUNTERPARTS. This Amendment may be executed
in any number of counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an original, but all
of which together shall constitute one instrument. In proving this
Amendment, it shall not be necessary to produce or account for more than one
such counterpart signed by the party against whom enforcement is sought.
Section 6. EFFECTIVE DATE. Subject to the satisfaction of the
conditions precedent set forth in Section 2 hereof, this Amendment shall be
deemed to be effective as of the date first above written.
Section 7. GOVERNING LAW. This Amendment shall be deemed to be a
contract under the laws of the Commonwealth of Pennsylvania and shall for
all purposes be construed in accordance with and governed by the internal
laws of said Commonwealth without reference to principles of conflicts of
law.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
XXXXXXX LEASING CORP.
Attest: /s/ X. X. Xxxxxx By: /s/ I. Xxxxx Xxxxx
Title: President
Name: I. Xxxxx Xxxxx
FIRST UNION NATIONAL BANK
By: /s/ Xxxx X. Xxxxxxx
Title: Senior Vice President
Name: Xxxx X. Xxxxxxx
BANKBOSTON, N.A.
By: /s/ Xxxx Xxxxx
Title: Vice President
Name: Xxxx Xxxxx
EXHIBIT C
Consolidated Borrowing Base Certificate
For______ Quarter, _________
HEADER HEADER HEADER
LEASES IN COMMERCIAL TOTAL
GOOD STANDING RENTAL FLEET
A. Net Book Value of Motor Vehicles
Maximum Commercial Rental Fleet permitted (40%
of Total of Line A per Section 16.7(c)). If Net Book
value of Commercial Rental Fleet exceeds this amount,
the Net Book Value of Commercial Rental Fleet in
Line A must be reduced to 2/3 of Net Book Value of
Eligible Equipment subject to Leases in Good Standing
in order to comply with Section 16.7(c).
B. Total Net Book Value of Eligible Equipment other than
Motor Vehicles (Not to exceed $5 Million)
C. Net book Value of Eligible Equipment (A+B)
D. Borrowing Base Amount (90% of C)
Less Total Exclusions:
E. Facility B Loans
F. Other Indebtedness of Xxxxxxx
1. Xxxxxxx notes securing RTLC collateral Trust Debentures
2. Obligations guaranteed by Xxxxxxx
3. Outstanding Letters of Credit for the account of Xxxxxxx
4. Outstanding Facility A Loans from Lenders
5. All other Indebtedness of Xxxxxxx
G. Total Exclusions
H. Net Borrowing Base (D-G)
Lesser of:
I. $50,000,000
Less:
1. Outstanding Facility A Loans
2. Outstanding Letters of Credit issued by Lenders
J. Net Borrowing Base (H)
Remaining Facility A Availability
THE FOREGOING INFORMATION IS CERTIFIED TO BE CORRECT:
XXXXXXX LEASING CORP.
BY:_________________________________
NAME:______________________________
TITLE:______________________________
DATED:_____________________________
UNCONDITIONAL GUARANTY
October 28, 1999
Xxxxxxx Truck Leasing Corp.
Xxx Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
(Individually and collectively "Borrower")
Xxxxxxx Leasing Corp.
Xxx Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
(Individually and collectively "Guarantor")
First Union National Bank
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
(Hereinafter referred to as "Bank")
To induce Bank to make, extend or renew loans, advances, credit, or other
financial accommodations to or for the benefit of Borrower, and in
consideration of loans, advances, credit, or other financial accommodations
made, extended or renewed to or for the benefit of Borrower, Guarantor
hereby absolutely, irrevocably and unconditionally guarantees to Bank and
its successors, assigns and affiliates the timely payment and performance
of all liabilities and obligations of Borrower to Bank under letters of
credit issued by Bank for account of Borrower and associated reimbursement
agreements, the Loan Documents as defined herein, and all extensions,
modifications and renewals thereof, including without limitation all
principal, interest, charges, and costs and expenses incurred thereunder
(including attorneys' fees and other costs of collection incurred,
regardless of whether suit is commenced) (collectively, the "Guaranteed
Obligations").
Guarantor further covenants and agrees:
GUARANTOR'S LIABILITY. This Guaranty is a continuing and unconditional
guaranty of payment and performance and not of collection. The parties to
this Guaranty are jointly and severally obligated hereunder. This Guaranty
does not impose any obligation on Bank to extend or continue to extend
credit or otherwise deal with Borrower at any subsequent time. This
Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of the Guaranteed Obligations is rescinded,
avoided or for any other reason must be returned by Bank, and the returned
payment shall remain payable as part of the Guaranteed Obligations, all as
though such payment had not been made. Except to the extent the provisions
of this Guaranty give Bank additional rights, this Guaranty shall not be
deemed to supersede or replace any other guaranties given to Bank by
Guarantor; and the obligations guaranteed hereby shall be in addition to any
other obligations guaranteed by Guarantor pursuant to any other agreement
of guaranty given to Bank and other guaranties of the Guaranteed
Obligations.
TERMINATION OF GUARANTY. Guarantor may terminate this Guaranty only by
written notice, delivered personally to or received by certified or
registered United States Mail by an authorized officer of Bank at the
address for notices provided herein. Such termination shall be effective
with respect to Guaranteed Obligations arising more than 15 days after the
date such written notice is received by said Bank officer. Guarantor may
not terminate this Guaranty as to Guaranteed Obligations (including any
subsequent extensions, modifications or compromises of the Guaranteed
Obligations) then existing, or to Guaranteed Obligations arising subsequent
to receipt by Bank of said notice if such Guaranteed Obligations are a
result of Bank's obligation to make advances pursuant to a commitment
entered into prior to expiration of the 15 day notice period, or are a
result of advances which are necessary for Bank to protect its collateral
or otherwise preserve its interests. Termination of this Guaranty by any
single Guarantor will not affect the existing and continuing obligations of
any other Guarantor hereunder.
CONSENT TO MODIFICATIONS. Guarantor consents and agrees that Bank may from
time to time, in its sole discretion, without affecting, impairing,
lessening or releasing the obligations of Guarantor hereunder: (a) extend
or modify the time, manner, place or terms of payment or performance and/or
otherwise change or modify the credit terms of the Guaranteed Obligations;
(b) increase, renew, or enter into a novation of the Guaranteed Obligations;
(c) waive or consent to the departure from terms of the Guaranteed
Obligations; (d) permit any change in the business or other dealings and
relations of Borrower or any other guarantor with Bank; (e) proceed against,
exchange, release, realize upon, or otherwise deal with in any manner any
collateral that is or may be held by Bank in connection with the Guaranteed
Obligations or any liabilities or obligations of Guarantor; and (f) proceed
against, settle, release, or compromise with Borrower, any insurance
carrier, or any other person or entity liable as to any part of the
Guaranteed Obligations, and/or subordinate the payment of any part of the
Guaranteed Obligations to the payment of any other obligations, which may
at any time be due or owing to Bank; all in such manner and upon such terms
as Bank may deem appropriate, and without notice to or further consent from
Guarantor. No invalidity, irregularity, discharge or unenforceability of,
or action or omission by Bank relating to any part of the Guaranteed
Obligations or any security therefore shall affect or impair this Guaranty.
WAIVERS AND ACKNOWLEDGMENTS. Guarantor waives and releases the following
rights, demands, and defenses Guarantor may have with respect to Bank and
collection of the Guaranteed Obligations: (a) promptness and diligence in
collection of any of the Guaranteed Obligations from Borrower or any other
person liable thereon, and in foreclosure of any security interest and sale
of any property serving as collateral for the guaranteed Obligations: (b)
any law or statute that requires that Bank make demand upon, assert claims
against, or collect from Borrower or other persons or entities, foreclose
any security interest, sell collateral, exhaust any remedies, or take any
other action against Borrower or other persons or entities prior to making
demand upon, collecting from or taking action against Guarantor with respect
to the Guaranteed Obligations, including any such rights Guarantor might
otherwise have had under Va. Code Sub-Sections 49-25 and 49-26, et seq.,
N.C.G.S. Sub-Section 26-7, et seq., Tenn. Code Xxx. Section 00-00-000,
O.C.G.A. Section 10-7-24 and any successor statute and any other applicable
law; (c) any law or statute that requires that Borrower or any other person
be joined in, notified of or made part of any action against Guarantor; (d)
that Bank preserve, insure or perfect any security interest in collateral
or sell or dispose of collateral in a particular manner or at a particular
time; (e) notice of extensions, modifications, renewals, or novations of the
Guaranteed Obligations, or any new transactions or other relationships
between Bank, Borrower and/or any guarantor, and of changes in the financial
condition of, ownership of, or business structure of Borrower or any other
guarantor; (f) presentment, protest, notice of dishonor, notice of default,
demand for payment, notice of intention to accelerate maturity, notice of
acceleration of maturity, notice of sale, and all other notices of any kind
whatsoever; (g) the right to assert against Bank any defense (legal or
equitable), set-off, counterclaim, or claim that Guarantor may have at any
time against Borrower or any other party liable to Bank; (h) all defenses
relating to invalidity, insufficiency, unenforceability, enforcement,
release or impairment of Bank's lien on any collateral, of the Loan
Documents, or of any other guaranties held by Bank; (i) any claim or defense
that acceleration of maturity of the Guaranteed Obligations is stayed
against Guarantor because of the stay of assertion or of acceleration of
claims against any other person or entity for any reason including the
bankruptcy or insolvency of that person or entity; and (j) the benefit of
any exemption claimed by Guarantor. Guarantor acknowledges and represents
that Guarantor has relied upon Guarantor's own due diligence in making an
independent appraisal of Borrower, Borrower's business affairs and financial
condition, and any collateral; Guarantor will continue to be responsible for
making an independent appraisal of such matters; and Guarantor has not
relied upon and will not hereafter rely upon Bank for information regarding
Borrower or any collateral.
FINANCIAL CONDITION. Guarantor warrants, represents and covenants to Bank
that on and after the date hereof; (a) the fair saleable value of
Guarantor's assets exceeds its liabilities, Guarantor is meeting its current
liabilities as they mature, and Guarantor is and shall remain solvent; (b)
all financial statements of Guarantor furnished to Bank are correct and
accurately reflect the financial condition of Guarantor as of the respective
dates thereof; (c) since the date of such financial statements, there has
not occurred a material adverse change in the financial condition of
Guarantor; (d) there are not now pending any court or administrative
proceedings or undischarged judgments against Guarantor, no federal or state
tax liens have been filed or threatened against Guarantor, and Guarantor is
not in default or claimed default under any agreement; and (e) at such
reasonable times as Bank requests, Guarantor will furnish Bank with such
other financial information as Bank may reasonably request.
INTEREST AND APPLICATION OF PAYMENTS. Regardless of any other provision of
this Guaranty or other Loan Documents, if for any reason the effective
interest on any of the Guaranteed Obligations should exceed the maximum
lawful interest, the effective interest shall be deemed reduced to and shall
be such maximum lawful interest, and any sums of interest which have been
collected in excess of such maximum lawful interest shall be applied as a
credit against the unpaid principal balance of the Guaranteed Obligations.
Monies received from any source by Bank for applications toward payment of
the Guaranteed Obligations may be applied to such Guaranteed Obligations in
any manner or order deemed appropriate by Bank.
DEFAULT. If any of the following events occur, a default ("Default") under
this Guaranty shall exist: (a) failure of timely payment or performance of
the Guaranteed Obligations or a default under any Loan Document; (b) a
breach of any agreement or representation contained or referred to in the
Guaranty, or any of the Loan Documents, or contained in any other contract
or agreement of Guarantor with Bank or its affiliates, whether now existing
or hereafter arising; and/or (c) the death of, appointment of a guardian
for, dissolution of, termination of existence of, loss of good standing
status by, appointment of a receiver for, assignment for the benefit of
creditors of, or the commencement of any insolvency or bankruptcy proceeding
by or against Guarantor or any general partner of or the holder(s) of the
majority ownership interests of Guarantor.
If a Default occurs, the Guaranteed Obligations shall be due immediately and
payable without notice, and, Bank may exercise any rights and remedies as
provided in this Guaranty and other Loan Documents, or as provided at law
or equity. Guarantor shall pay interest on the Guaranteed Obligations from
such Default at the highest rate of interest charged on any of the
Guaranteed Obligations.
ATTORNEYS' FEES AND OTHER COSTS OF COLLECTION. Guarantor shall pay all of
Bank's reasonable expenses incurred to enforce or collect any of the
Guaranteed Obligations, including, without limitation, reasonable
arbitration, paralegals', attorneys' and experts' fees and expenses, whether
incurred without the commencement of a suit, in any suit, arbitration, or
administrative proceeding, or in any appellate or bankruptcy proceeding.
SUBORDINATION OF OTHER DEBTS. Guarantor agrees: (a) to subordinate the
obligations now or hereafter owed by Borrower to Guarantor ("Subordinated
Debt") to any and all obligations of Borrower to Bank now or hereafter
existing while this Guaranty is in effect, provided however that Guarantor
may receive regularly scheduled principal and interest payments on the
Subordinated Debt so long as (i) all sums due and payable by Borrower to
Bank have been paid in full on or prior to such date, and (ii) no event or
condition which constitutes or which with notice or the lapse of time would
constitute an event of default with respect to the Guaranteed Obligations
shall be continuing on or as of the payment date; (b) Guarantor will either
place a legend indicating such subordination on every note, ledger page or
other document evidencing any part of the Subordinated Debt or deliver such
documents to Bank; and (c) except as permitted by this paragraph, Guarantor
will not request or accept payment of or any security for any part of the
Subordinated Debt, and any proceeds of the Subordinated Debt paid to
Guarantor, through error or otherwise, shall immediately be forwarded to
Bank by Guarantor, properly endorsed to the order of Bank, to apply to the
Guaranteed Obligations.
MISCELLANEOUS. Assignment. This Guaranty and other Loan Documents shall
inure to the benefit of and be binding upon the parties and their respective
heirs, legal representatives, successors and assigns. Bank's interest in
and rights under this Guaranty and other Loan Documents are freely
assignable, in whole or in part, by Bank. Any assignment shall not release
Guarantor from the Guaranteed Obligations. Applicable Law; Conflict Between
Documents. This Guaranty and other Loan Documents shall be governed by and
construed under the laws of the state named in Bank's address shown above
without regard to that state's conflict of laws principles. If the terms
of this Guaranty should conflict with the terms of any commitment letter
that survives closing, the terms of this Guaranty shall control.
Guarantor's Accounts. Except as prohibited by law, Guarantor grants Bank
a security interest in all of Guarantor's accounts with Bank and its
affiliates. Jurisdiction. Guarantor irrevocably agrees to non-exclusive
personal jurisdiction in the state named in Bank's address shown above.
Severability. If any provision of this Guaranty or of the other Loan
Documents shall be prohibited or invalid under applicable law, such
provision shall be ineffective but only to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty or other Loan Documents. Notices.
Any notices to Guarantor shall be sufficiently given if in writing and
mailed or delivered to Guarantor's address shown above or such other address
as provided hereunder, and to Bank, if in writing and mailed or delivered
to Bank's office address shown above or such other address as Bank may
specify in writing from time to time. In the event that Guarantor changes
Guarantor's address at any time prior to the date the Guaranteed Obligations
are paid in full, Guarantor agrees to promptly give written notice of said
change of address to Bank by registered or certified mail, return receipt
requested, all charges prepaid. Plural; Captions. All references in the
Loan Documents to borrower, guarantor, person, document or other nouns of
reference mean both the singular and plural form, as the case may be, and
the term "person" shall mean any individual person or entity. The captions
contained in the Loan Documents are inserted for convenience only and shall
not affect the meaning or interpretation of the Loan Documents. Binding
Contract. Guarantor by execution of and Bank by acceptance of this Guaranty
agree that each party is bound to all terms and provisions of this Guaranty.
Amendments, Waivers and Remedies. No waivers, amendments or modifications
of this Guaranty and other Loan Documents shall be valid unless in writing
and signed by an officer of Bank. No waiver by Bank of any Default shall
operate as a waiver of any other Default or the same Default on a future
occasion. Neither the failure nor any delay on the part of Bank in
exercising any right, power, or privilege granted pursuant to this Guaranty
and other Loan Documents shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise
or the exercise of any other right, power or privilege. All remedies
available to Bank with respect to this Guaranty and other Loan Documents and
remedies available at law or in equity shall be cumulative and may be
pursued concurrently or successively. Partnerships. If Guarantor is a
partnership, the obligations, liabilities and agreements on the part of
Guarantor shall remain in full force and effect and fully applicable
notwithstanding any changes in the individuals comprising the partnership.
The term "Guarantor" includes any altered or successive partnerships, and
predecessor partnership(s) and the partners shall not be released from any
obligations or liabilities hereunder. Loan Documents. The term "Loan
Documents" refers to all documents executed in connection with the
Guaranteed Obligations and may include, without limitation, commitment
letters that survive closing, loan agreements, other guaranty agreements,
security agreements, instruments, financing statements, mortgages, deeds of
trust, deeds to secure debt, letters of credit and any amendments or
supplements (excluding swap agreements as defined in 11 U.S. Code Section
101).
FINANCIAL AND OTHER INFORMATION. Guarantor shall deliver to Bank such
information as Bank may reasonably request from time to time, including
without limitation, financial statements and information pertaining to
Guarantor's financial condition. Such information shall be true, complete,
and accurate.
ARBITRATION. Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any claim or controversy arising out
of or relating to the Loan Documents between parties hereto (a "Dispute")
shall be resolved by binding arbitration conducted under and governed by the
Commercial Financial Disputes Arbitration Rules (the "Arbitration Rules")
of the American Arbitration Association (the "AAA") and the Federal
Arbitration Act. Disputes may include, without limitation, tort claims,
counterclaims, a dispute as to whether a matter is subject to arbitration,
claims brought as class actions, or claims arising from documents executed
in the future. A judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding the foregoing, this arbitration provision
does not apply to disputes under or related to swap agreements. Special
Rules. All arbitration hearings shall be conducted in the city named in the
address of Bank first stated above. A hearing shall begin within 90 days
of demand for arbitration and all hearings shall conclude within 120 days
of demand for arbitration. These time limitations may not be extended
unless a party shows cause for extension and then for no more than a total
of 60 days. The expedited procedures set forth in Rule 51 et. Seq. of the
Arbitration Rules shall be applicable to claims of less than $1,000,000.00.
Arbitrators shall be licensed attorneys selected from the Commercial
Financial Dispute Arbitration Panel of the AAA. The parties do not waive
applicable Federal or state substantive law except as provided herein.
Preservation and Limitation of Remedies. Notwithstanding the preceding
binding arbitration provisions, the parties agree to preserve, without
diminution, certain remedies that any party may exercise before or after an
arbitration proceeding is brought. The parties shall have the right to
proceed in any court of proper jurisdiction or by self-help to exercise or
prosecute the following remedies, as applicable: (i) all rights to foreclose
against any real or personal property or other security by exercising a
power of sale or under applicable law by judicial foreclosure including a
proceeding to confirm the sale; (ii) all rights of self-help including
peaceful occupation of real property and collection of rents, set-off, and
peaceful possession of personal property; (iii) obtaining provisional or
ancillary remedies including injunctive relief, sequestration, garnishment,
attachment, appointment of receiver and filing an involuntary bankruptcy
proceeding; and (iv) when applicable, a judgment by confession of judgment.
Any claim or controversy with regard to any party's entitlement to such
remedies is a Dispute. Waiver of Exemplary Damages. The parties agree that
they shall not have a remedy of punitive or exemplary damages against other
parties in any Dispute and hereby waive any right or claim to punitive or
exemplary damages they have now or which may arise in the future in
connection with any Dispute whether the Dispute is resolved by arbitration
or judicially. Waiver of Jury Trial. THE PARTIES ACKNOWLEDGE THAT BY
AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY WAIVED ANY RIGHT THEY
MAY HAVE TO JURY TRIAL WITH REGARD TO A DISPUTE.
IN WITNESS WHEREOF, Guarantor, on the day and year first written above, has
caused this Unconditional Guaranty to be executed under seal.
Xxxxxxx Leasing Corp.
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ I. Xxxxx Xxxxx
SEAL Name: I. Xxxxx Xxxxx
Title: President
