EXHIBIT 99.9
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY (as amended, supplemented, or otherwise modified
from time to time, this "Guaranty"), dated as of December 20, 2001 by Covad
Communications Company, a California corporation (the "Guarantor"), is made in
favor of and for the benefit of SBC Communications Inc., a Delaware corporation
(the "Lender").
RECITALS
WHEREAS, Covad Communications Group, Inc., a Delaware corporation (the
"Borrower") and the Lender are parties to that certain Credit Agreement, dated
as of November 12, 2001 (as amended, supplemented or otherwise modified and
supplemented and in effect from time to time, the "Credit Agreement", and
capitalized terms used herein without definition shall have the meanings given
such terms in the Credit Agreement); and
WHEREAS, it is a condition to the Lender entering into the Credit Agreement
and extending the loan thereunder that the Guarantor executes and delivers this
Guaranty; and
WHEREAS, the Guarantor desires to execute and deliver this Guaranty; and
WHEREAS, the Guarantor is a wholly owned subsidiary of the Borrower and the
Guarantor derives substantial economic benefits from the extensions of credit to
the Borrower as provided in the Credit Agreement;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and affirmed, and in order to induce the Lender to enter into the
Credit Agreement, the Guarantor agrees as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. As used in this Guaranty, the following terms shall have
the following meanings unless the context otherwise requires:
"Guaranty" means this Guaranty, as it may be amended, supplemented or
otherwise modified from time to time.
"Payment in full," "paid in full" or any similar term means the
payment in full of (i) all amounts due or to become due or payable to the
Lender pursuant to Section 8.4.1 of the Resale Agreement, dated as of
November 12, 2001 (the "Resale Agreement"), among the Borrower, Covad
Communications Company and the Lender (the "Prepayment Balance") and (ii)
the Obligations (as defined in the Credit Agreement and, together with the
Prepayment Balance, referred to collectively herein as the "Obligations")
including, without limitation, all principal, interest, costs, fees and
expenses (including, without limitation, reasonable legal fees and
expenses) of the Lender as expressly required by the Resale Agreement and
the Credit Agreement.
1.2 Certain Terms.
(a) The words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Guaranty as a whole, and not to any particular Article,
Section, subsection or clause in this Guaranty
(b) References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Guaranty unless otherwise specifically
provided.
(c) Whenever the words "include," "includes" or "including" are used in
this Guaranty, they shall be deemed to be followed by the words "without
limitation."
ARTICLE II
GUARANTY PROVISIONS
2.1 Guaranty. The Guarantor hereby irrevocably and unconditionally
(a) guarantees, as a primary obligor and not merely as a surety, the full
and punctual payment when due of all Obligations, whether at stated maturity, by
mandatory prepayment, acceleration, demand or otherwise (including amounts that
would become due but for the operation of the automatic stay under Section
362(a) of the United States Bankruptcy Code, 11 U.S.C. ss. 362(a), and the
operation of Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11
U.S.C. ss.502(b) and ss.506(b)), in each case in accordance herewith. The term
"Obligations" is used herein in its most comprehensive sense and includes any
and all obligations of the Borrower in respect of notes, advances, borrowings,
loans, debts, interest, fees, costs, expenses (including reasonable legal fees
and expenses of counsel), indemnities and liabilities of whatsoever nature now
or hereafter made, incurred or created, whether absolute or contingent,
liquidated or unliquidated, regardless of class, whether due or not due, and
however arising under or in connection with the Resale Agreement or the Credit
Agreement, as applicable including those arising under successive borrowing
transactions under the Credit Agreement which shall either continue such
obligations of the Borrower or from time to time renew them after they have been
satisfied; and
(b) agrees that, if any payment made by the Borrower or any other Person
and applied to the Obligations is at any time annulled, avoided, set aside,
rescinded, invalidated, declared to be fraudulent or preferential or otherwise
required to be refunded or repaired, or the proceeds of Collateral are required
to be returned by the Lender to the Borrower, its estate, trustee, receiver or
any other party, including the Guarantor, under any bankruptcy law, state or
federal law, common law or equitable cause, then, to the extent of such payment
or repayment, the Guarantor's liability hereunder (and any Lien or other
Collateral securing such liability) shall be and remain in full force and
effect, as fully as if such payment had never been made or, if prior thereto
this Guaranty shall have been cancelled or surrendered (and if any Lien or other
Collateral securing the Guarantor's liability hereunder shall have been released
or terminated by virtue of such cancellation or surrender), this Guaranty (and
such Lien or other Collateral) shall be reinstated in full force and effect, and
such prior cancellation or surrender shall not diminish, release, discharge,
impair or otherwise affect the obligations of the Guarantor in respect of the
amount of such payment (or any Lien or other Collateral securing such
obligation).
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2.2 Limitation on Amount Guaranteed. Any term or provision of this Guaranty
to the contrary notwithstanding, the obligations of the Guarantor hereunder
shall be limited to a maximum aggregate amount equal to the largest amount that
would not render its obligations hereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of Title 11 of the United States Code
or any applicable provisions of comparable state law (collectively, the
"Fraudulent Transfer Laws"), in each case after giving effect to all other
liabilities of the Guarantor, contingent or otherwise, that are relevant under
the Fraudulent Transfer Laws (specifically excluding, however, any liabilities
of the Guarantor (i) in respect of intercompany indebtedness to the Borrower or
other Affiliates of the Borrower to the extent that such indebtedness would be
discharged in an amount equal to the amount paid by the Guarantor hereunder and
(ii) under any guaranty of subordinated indebtedness which guaranty contains a
limitation as to maximum amount similar to that set forth in this Section 2.2,
pursuant to which the liability of the Guarantor hereunder is included in the
liabilities taken into account in determining such maximum amount) and after
giving effect as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to subrogation,
reimbursement, indemnification or contribution of the Guarantor pursuant to
applicable law or pursuant to any agreement.
2.3 Guaranty Absolute and Unconditional. The Guarantor agrees that its
obligations hereunder are irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than payment in full of the
Obligations. In furtherance of the foregoing and without limiting the generality
thereof, the Guarantor agrees as follows:
(a) This Guaranty is a Guaranty of payment and not of collectibility.
(b) The obligations of the Guarantor hereunder are independent of the
obligations of any other guarantor or the obligations of the Borrower, and
a separate action or actions may be brought and prosecuted against the
Guarantor whether or not any action is brought against the Borrower or any
such other guarantor and whether or not the Borrower and/or any such
guarantor are joined in any such action or actions.
(c) Payment by the Guarantor of a portion, but not all, of the
Obligations shall in no way limit, affect, modify or abridge the
Guarantor's liability for any portion of the Obligations which has not been
paid. Without limiting the generality of the foregoing, if the Lender is
awarded a judgment in any suit brought to enforce the Guarantor's covenant
to pay a portion of the Obligations, such judgment shall not be deemed to
release the Guarantor from its covenant to pay the portion of the
Obligations that is not the subject of such suit, and such judgment shall
not, except to the extent satisfied by the Guarantor, limit, affect, modify
or abridge any other Guarantor's liability hereunder in respect of the
Obligations.
(d) The Lender, upon five Business Days' written notice, without
affecting the validity or enforceability of this Guaranty or giving rise to
any reduction, limitation, impairment, discharge or termination of the
Guarantor's liability hereunder, from time to time may (i) renew, extend,
accelerate, increase the rate of interest on, or otherwise change the time,
place, manner or terms of payment of the Obligations; (ii) settle,
compromise, release or discharge, or accept or refuse any offer of
performance with respect to, or substitutions for, the Obligations or any
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agreement relating thereto and/or subordinate the payment of the same to
the payment of any other obligations; (iii) request and accept other
guaranties of the Obligations and take and hold security for the payment of
this Guaranty or the Obligations; (iv) release, surrender, exchange,
substitute, compromise, settle, rescind, waive, alter, subordinate or
modify, with or without consideration, any security for payment of the
Obligations, any other guaranties of the Obligations, or any other
obligation of any Person (including any other Guarantor) with respect to
the Obligations; (v) enforce and apply any security now or hereafter held
by or for the benefit of the Lender in respect of this Guaranty or the
Obligations and direct the order or manner of sale thereof, or exercise any
other right or remedy that the Lender may have against any such security,
as the Lender in its discretion may determine consistent with the Resale
Agreement or the Credit Agreement and any applicable security agreement,
including foreclosure on any such security pursuant to one or more judicial
or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable, and even though such action operates to impair or
extinguish any right of reimbursement or subrogation or other right or
remedy of the Guarantor against the Borrower or any security for the
Obligations; and (vi) exercise any other rights available to it.
(e) This Guaranty and the obligations of the Guarantor hereunder shall
be valid and enforceable and shall not be subject to any reduction,
limitation, impairment, discharge or termination for any reason (except to
the extent of payment of the Obligations), including the occurrence of any
of the following, whether or not the Guarantor shall have had notice or
knowledge of any of them: (i) any failure or omission to assert or enforce,
or agreement or election not to assert or enforce, or the stay or
enjoining, by order of court, by operation of law or otherwise, of the
exercise or enforcement of, any claim or demand or any right, power or
remedy (whether arising at law, in equity or otherwise) with respect to the
Obligations or any agreement relating thereto, or with respect to any other
guaranty of or security for the payment of the Obligations; (ii) any
rescission, waiver, amendment or modification of, or any consent to
departure from, any of the terms or provisions (including provisions
relating to events of default) of the Resale Agreement or the Credit
Agreement or any agreement or instrument executed pursuant thereto, or of
any other guaranty or security for the Obligations, in each case whether or
not in accordance with the terms of the Credit Agreement or any agreement
relating to such other guaranty or security; (iii) the Obligations, or any
agreement relating thereto, at any time being found to be illegal, invalid
or unenforceable in any respect; (iv) the application of payments received
from any source (other than payments received from the proceeds of any
security for the Obligations, except to the extent such security also
serves as collateral for indebtedness other than the Obligations) to the
payment of indebtedness other than the Obligations, even though the Lender
might have elected to apply such payment to any part or all of the
Obligations; (v) the Lender's consent to the change, reorganization or
termination of the corporate structure or existence of the Borrower or any
subsidiary of the Borrower and to any corresponding restructuring of the
Obligations; (vi) any failure to perfect or continue perfection of a
security interest in any collateral which secures any of the Obligations;
(vii) any defenses, setoffs or counterclaims which any Borrower may allege
or assert against the Lender in respect of the Obligations, including
failure of consideration, breach of warranty, payment, statute of frauds,
statute of limitations, accord and satisfaction and usury; and (viii) any
other act or thing or omission, or delay to do any other act or thing,
which may or might in any manner or to any extent vary the risk of the
Guarantor as an obligor in respect of the Obligations.
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2.4 Waivers by Guarantor. The Guarantor hereby waives, for the benefit of
the Lender:
(a) any right to require the Lender, as a condition of payment or
performance by the Guarantor, to (i) proceed against any Borrower, any other
guarantor of the Obligations or any other Person, (ii) proceed against or
exhaust any security held from any Borrower, any other guarantor of the
Obligations or any other Person, (iii) proceed against or have resort to any
balance of any deposit account or credit on the books of the Lender in favor of
any Borrower or any other Person, or (iv) pursue any other remedy in the power
of the Lender whatsoever;
(b) any defense arising by reason of the incapacity, lack of authority or
any disability or other defense of the Borrower including any defense based on
or arising out of the lack of validity or the unenforceability of the
Obligations or any agreement or instrument relating thereto or by reason of the
cessation of the liability of the Borrower from any cause other than payment in
full of the Obligations;
(c) any defense based upon any statute or rule of law which provides that
the obligation of a surety must be neither larger in amount nor in other
respects more burdensome than that of the principal;
(d) any defense based upon the Lender's errors or omissions in the
administration of the Obligations;
(e) (i) any principles or provisions of law, statutory or otherwise, which
are or might be in conflict with the terms of this Guaranty and any legal or
equitable discharge of the Guarantor's obligations hereunder, (ii) the benefit
of any statute of limitations affecting the Guarantor's liability hereunder or
the enforcement hereof, (iii) any rights to setoffs, recoupments and
counterclaims, and (iv) promptness, diligence and any requirement that the
Lender protect, secure, perfect or insure any security interest or lien or any
property subject thereto;
(f) notices, demands, presentments, protests, notices of protest, notices
of dishonor and notices of any action or inaction, including acceptance of this
Guaranty, notices of default under the Resale Agreement or the Credit Agreement
or any agreement or instrument related thereto, notices of any renewal,
extension or modification of the Obligations or any agreement related thereto,
notices of any extension of credit to the Borrower and notices of any of the
matters referred to in Section 2.3 and any right to consent to any thereof; and
(g) any defenses or benefits that may be derived from or afforded by law
which limit the liability of or exonerate Guarantor or sureties, or which may
conflict with the terms of this Guaranty.
2.5 Payment by Guarantor; Application of Payments. Subject to the
provisions of Section 2.2, the Guarantor hereby agrees, in furtherance of the
foregoing and not in limitation of any other right which the Lender or any other
Person may have at law or in equity against the Guarantor by virtue hereof, that
upon the failure of the Borrower to pay any of the Obligations when and as the
same shall become due, whether at stated maturity, by required prepayment,
acceleration, demand or otherwise (including amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C.
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ss. 362(a), and the operation of Sections 502(b) and 506(b) of the United States
Bankruptcy Code, 11 U.S.C. ss.502(b) and ss.506(b)), the Guarantor will upon
demand pay, or cause to be paid, in cash, to the Lender, an amount equal to the
sum of the unpaid principal amount of all Obligations then due as aforesaid,
accrued and unpaid interest on such Obligations (including interest which, but
for the filing of a petition in bankruptcy with respect to the Borrower or any
guarantor of the Obligations, would have accrued on such Obligations, whether or
not a claim is allowed against the Borrower or any guarantor of the Obligations
for such interest in any such bankruptcy proceeding) and all other Obligations
then owed to Lender as aforesaid. All such payments shall be applied promptly
from time to time by the Lender:
First, to the payment of the costs and expenses of any collection or
other realization under this Guaranty, including reasonable fees and
expenses of the Lender and its counsel, and all expenses, liabilities and
advances made or incurred by the Lender in connection therewith;
Second, to the payment of all other Obligations in the order set forth
in the Resale Agreement or the Credit Agreement, as applicable; and
Third, after payment in full of all Obligations, to the payment to the
Guarantor, or their respective successors or assigns, or to whomsoever may
be lawfully entitled to receive the same or as a court of competent
jurisdiction may direct, of any surplus then remaining from such payments.
2.6 Guarantor's Rights of Subrogation, Contribution, Etc. The Guarantor
hereby waives any claim, right or remedy, direct or indirect, that the Guarantor
now has or may hereafter have against the Borrower or any of its assets in
connection with this Guaranty or the performance by the Guarantor of its
obligations hereunder, in each case whether such claim, right or remedy arises
in equity, under contract, by statute, under common law or otherwise and
including without limitation (a) any right of subrogation, reimbursement or
indemnification that the Guarantor now has or may hereafter have against the
Borrower, (b) any right to enforce, or to participate in, any claim, right or
remedy that the Lender now has or may hereafter have against the Borrower, and
(c) any benefit of, and any right to participate in, any collateral or security
now or hereafter held by or for the benefit of the Lender. In addition, until
the Obligations shall have been paid in full, the Guarantor shall withhold
exercise of any right of contribution the Guarantor may have against any other
guarantor of the Obligations. The Guarantor further agrees that, to the extent
the waiver or agreement to withhold the exercise of its rights of subrogation,
reimbursement, indemnification and contribution as set forth herein is found by
a court of competent jurisdiction to be void or voidable for any reason, any
rights of subrogation, reimbursement or indemnification the Guarantor may have
against the Borrower or against any collateral or security, and any rights of
contribution the Guarantor may have against any such other guarantor, shall be
junior and subordinate to any rights the Lender may have against the Borrower,
to all right, title and interest the Lender may have in any such collateral or
security, and to any right the Lender may have against such other guarantor. If
any amount shall be paid to the Guarantor on account of any such subrogation,
reimbursement, indemnification or contribution rights at any time when all
Obligations shall not have been paid in full, such amount shall be held in trust
for the Lender and shall forthwith be paid over to the Lender to be credited
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and applied against the Obligations, whether matured or unmatured, in accordance
with the terms hereof.
2.7 Subordination of Other Obligations. Any indebtedness of the Borrower
now or hereafter held by the Guarantor is hereby subordinated in right of
payment to the Obligations, and any such indebtedness of the Borrower to the
Guarantor collected or received by the Guarantor after an Event of Default has
occurred and is continuing shall be held in trust for the Lender and shall
forthwith be paid over to the Lender to be credited and applied against the
Obligations but without affecting, impairing or limiting in any manner the
liability of the Guarantor under any other provision of this Guaranty.
2.8 Expenses. The Guarantor agrees to pay, or cause to be paid, on demand,
and to save the Lender harmless against liability for, any and all costs and
expenses (including reasonable fees and disbursements of counsel and allocated
costs of internal counsel) incurred or expended by the Lender in connection with
the enforcement of or preservation of any rights under this Guaranty.
2.9 Continuing Guaranty. This Guaranty is a continuing Guaranty and shall
remain in effect until all of the Obligations shall have been paid in full. The
Guarantor hereby irrevocably waives any right to revoke this Guaranty as to
future transactions giving rise to any Obligations.
2.10 Authority of the Guarantor or the Borrower. It is not necessary for
the Lender to inquire into the capacity or powers of the Guarantor or the
Borrower or the officers, directors or the Lender acting or purporting to act on
behalf of any of them.
2.11 Financial Condition of the Borrower. Any Term Loan or other payments
may be granted to the Borrower or continued from time to time without notice to
or authorization from the Guarantor regardless of the financial or other
condition of the Borrower at the time of any such grant or continuation. The
Lender shall have no obligation to disclose or discuss with the Guarantor its
assessment, or the Guarantor's assessment, of the financial condition of the
Borrower. The Guarantor has adequate means to obtain information from the
Borrower on a continuing basis concerning the financial condition of the
Borrower and its ability to perform their obligations, and the Guarantor assumes
the responsibility for being and keeping informed of the financial condition of
the Borrower and of all circumstances bearing upon the risk of nonpayment of the
Obligations. The Guarantor hereby waives and relinquishes any duty on the part
of the Lender to disclose any matter, fact or thing relating to the business,
operations or conditions of the Borrower now known or hereafter known by the
Lender.
2.12 Rights Cumulative. The rights, powers and remedies given to the Lender
by this Guaranty are cumulative and shall be in addition to and independent of
all rights, powers and remedies given to the Lender by virtue of any statute or
rule of law or any agreement between the Guarantor and the Lender or between the
Borrower and the Lender. Any forbearance or failure to exercise, and any delay
by the Lender in exercising, any right, power or remedy hereunder shall not
impair any such right, power or remedy or be construed to be a waiver thereof,
nor shall it preclude the further exercise of any such right, power or remedy.
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2.13 Reinstatement of Guaranty. If all or any portion of the Obligations
are paid by the Borrower, the obligations of the Guarantor hereunder shall
continue and remain in full force and effect or be reinstated, as the case may
be, in the event that all or any part of such payment(s) are rescinded or
recovered directly or indirectly from the Lender as a preference, fraudulent
transfer or otherwise, and any such payments which are so rescinded or recovered
shall constitute Obligations for all purposes under this Guaranty.
2.14 Notice of Events. As soon as the Guarantor obtains knowledge thereof,
the Guarantor shall give the Lender written notice of any condition or event
which has resulted in (a) a material adverse change in the financial condition
of the Guarantor or the Borrower or (b) a breach of or noncompliance with any
term, condition or covenant contained herein or in the Resale Agreement or the
Credit Agreement or any other document delivered pursuant hereto or thereto.
2.15 Setoff. In addition to any other rights the Lender may have under law
or in equity, if any amount shall at any time be due and owing by the Guarantor
to the Lender under this Guaranty, the Lender is authorized at any time or from
time to time, with five Business Days written notice (any such notice being
hereby expressly waived), to setoff and to appropriate and to apply any and all
deposits (general or special, whether matured or unmatured) and any other
indebtedness of the Lender owing to the Guarantor and any other property of the
Guarantor held by the Lender to or for the credit or the account of the
Guarantor against and on account of the Obligations and liabilities of the
Guarantor to the Lender under this Guaranty.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to accept this Guaranty and to enter into the
Resale Agreement and the Credit Agreement and to make the Term Loan and payments
thereunder, the Guarantor hereby represents and warrants to the Lender that the
following statements are true and correct:
3.1 Corporate Existence. The Guarantor is validly existing and in good
standing under the laws of the state of its incorporation, has the corporate
power to own its assets and to transact the business in which it is now engaged
and is duly qualified as a foreign corporation and in good standing under the
laws of each jurisdiction where its ownership or lease of property or the
conduct of its business requires such qualification, except for failures to be
so qualified, authorized or licensed that would not in the aggregate have a
material adverse effect on the business, operations, assets or financial
condition of the Guarantor.
3.2 Corporate Power; Authorization; Enforceable Obligations. The Guarantor
has the corporate power, authority and legal right to execute, deliver and
perform this Guaranty and all obligations required hereunder and has taken all
necessary corporate action to authorize its Guaranty hereunder on the terms and
conditions hereof and its execution, delivery and performance of this Guaranty
and all obligations required hereunder. No consent of any other
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Person including stockholders and creditors of the Guarantor, and no license,
permit, approval or authorization of, exemption by, notice or report to, or
registration, filing or declaration with, any governmental authority is required
by the Guarantor in connection with this Guaranty or the execution, delivery,
performance, validity or enforceability of this Guaranty and all obligations
required hereunder. This Guaranty has been, and each instrument or document
required hereunder will be, executed and delivered by a duly authorized officer
of the Guarantor, and this Guaranty constitutes, and each instrument or document
required hereunder when executed and delivered by the Guarantor hereunder will
constitute, the legally valid and binding obligation of the Guarantor,
enforceable against the Guarantor in accordance with its terms.
3.3 No Legal Bar to this Guaranty. The execution, delivery and performance
of this Guaranty and the documents or instruments required hereunder, and the
use of the proceeds of the borrowings under the Credit Agreement and payments
under the Resale Agreement, will not violate any provision of any material
existing law or regulation binding on the Guarantor, or any order, judgment,
award or decree of any court, arbitrator or governmental authority binding on
the Guarantor, or the certificate of incorporation or bylaws of the Guarantor or
any securities issued by the Guarantor, or any mortgage, indenture, lease,
contract or other agreement, instrument or undertaking to which the Guarantor is
a party or by which the Guarantor or any of its assets may be bound, which would
have a material adverse effect on the business, operations, assets or financial
and will not result in, or require, the creation or imposition of any Lien on
any of its property, assets or revenues pursuant to the provisions of any such
mortgage, indenture, lease, contract or other agreement, instrument or
undertaking.
ARTICLE IV
MISCELLANEOUS
4.1 Acknowledgement Regarding Certain Environmental Obligations. The
Guarantor hereby acknowledges and agrees that the Obligations include the
Borrower's obligation under the Credit Agreement to comply with the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 and
all other Environmental Laws and to indemnify and hold harmless the Lender from
and against any and all liability arising out of, or in connection with the
presence of any Contaminant or the occurrence of any Release at any property of
the Borrower or the Guarantor given as security for the Obligations, and the
Guarantor hereby expressly guarantees the payment, performance and discharge of
such obligations and liabilities of the Borrower.
4.2 Notices, Etc. All notices and other communications provided for in this
Guaranty shall be in writing and mailed, telecopied or delivered by hand, if to
the Guarantor, at its address at
Covad Communications Company
0000 Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Telecopy: (000) 000-0000
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with a copy to:
Irell & Xxxxxxx LLP
1800 Avenue of the Stars
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Email: xxxxxxxx@xxxxx.xxx
if to the Lender, at its address at
SBC Communications Inc.
000 Xxxx Xxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
or, as to the Borrower or the Lender, at such other address as shall be
designated by such party in a written notice to the other party. All such
notices and communications hereunder shall, when mailed, telecopied or
delivered, be effective three (3) Business Days after being deposited in the
mails, postage prepaid, when telecopied with confirmation of receipt, or when
delivered by hand to the addressee or its agent, respectively, except that
notices and communications to the Lender by telecopy shall not be effective
unless one of the Attention Persons has received telephonic notice thereof.
4.3 No Waiver; Remedies. No failure on the part of the Lender to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
4.4 Severability. In case any provision in or obligation under this
Guaranty shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
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4.5 Amendments and Waivers. No amendment, modification, termination or
waiver of any provision of this Guaranty, or consent to any departure by the
Guarantor therefrom, shall in any event be effective without the written
concurrence of Lender and Guarantor. Any waiver or consent shall be effective
only in the specific instance and for the specific purpose for which it was
given.
4.6 Section Headings. Section and subsection headings in this Guaranty are
included herein for convenience of reference only and shall not constitute a
part of this Guaranty for any other purpose or be given any substantive effect.
4.7 GOVERNING LAW. THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO, INCLUDING THE INTERPRETATION, CONSTRUCTION, VALIDITY AND
ENFORCEABILITY THEREOF, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF DELAWARE WITHOUT REGARD TO CHOICE OF
LAW PROVISIONS.
4.8 Successors and Assigns. This Guaranty is a continuing Guaranty and
shall be binding upon the Guarantor and its successors and assigns. This
Guaranty shall inure to the benefit of the Lender and its successors and
assigns. The Guarantor shall not assign this Guaranty or any of the rights or
obligations of the Guarantor hereunder without the prior written consent of the
Lender. The Lender may, without notice or consent, assign its interest in this
Guaranty in whole or in part. The terms and conditions of this Guaranty shall
inure to the benefit of any transferee or assignee of any Term Loan or other
Obligations, and in the event of such transfer or assignment the rights and
privileges herein conferred upon the Lender shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms and conditions
hereof.
4.9 Entire Agreement. Subject to the terms of the Dispute Resolution
Agreement, this Guaranty, together with the Resale Agreement, the Credit
Agreement and all of the other Loan Documents and all agreements, instruments,
certificates and documents delivered hereunder or thereunder, embodies the
entire agreement of the Guarantor and the Lender and supercedes all prior oral
or written agreements and understandings relating to the subject matter hereof.
No course of dealing, course of performance or trade usage, and no parol
evidence of any nature, shall be used to supplement or modify any terms of this
Guaranty. There are no conditions to the full effectiveness of this Guaranty.
4.10 Further Assurances. At any time or from time to time, upon the request
of the Lender, the Guarantor shall execute and deliver such further documents
and do such other acts and things as the Lender may reasonably request in order
to effect fully the purposes of this Guaranty.
4.11 Counterparts; Effectiveness. This Guaranty may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original for all purposes; but all such counterparts together shall
constitute but one and the same instrument. This Guaranty shall become effective
as to the Guarantor upon the execution of a counterpart hereof by the
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Guarantor (whether or not a counterpart hereof shall have been executed by any
other Guarantor) and receipt by the Lender of written or telephonic notification
of such execution and authorization of delivery thereof.
4.12 Binding Effect. This Agreement shall become effective when it shall
have been executed by the Borrower and the Lender and thereafter shall be
binding upon and inure to the benefit of the Borrower, the Lender and their
respective successors and assigns, except that the Borrower shall not have the
right to assign their respective rights hereunder or any interest herein.
4.13 Survival of Agreement and Warranties. All agreements, representations
and warranties made herein shall survive the execution and delivery of this
Guaranty and any increase in the Obligations under the Resale Agreement or the
Credit Agreement.
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IN WITNESS WHEREOF, the undersigned Guarantor has caused this Guaranty to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
COVAD COMMUNICATIONS COMPANY
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
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