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Exhibit (4)(d)
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of March 2, 2001 (this "Guaranty"),
is made by XXXXX XXXXX FINANCE CORP., a Michigan corporation (the "Guarantor"),
in favor of each of the Lenders as defined below.
RECITALS
A. Xxxxx Xxxxx Partners, L.P., a Delaware limited partnership
(the "Borrower"), and GoldenTree Asset Management LLC, as a lender (together
with the other lenders party thereto, the "Lenders"), are entering into a Credit
Agreement dated as of March 2, 2001 (as amended or modified from time to time,
the "Credit Agreement").
B. Pursuant to the terms of the Loan Documents the Lenders have
agreed to make certain extensions of credit to the Borrower.
C. The Guarantor is an affiliate of the Borrower, the Borrower
and the Guarantor are engaged in related businesses, and the Guarantor has
derived or will derive substantial direct and indirect benefit from the making
of the extensions of credit by the Lenders.
D. The obligation of the Lenders to make or continue to make
certain extensions of credit under the Credit Agreement is conditioned upon,
among other things, the execution and delivery by the Guarantor of this
Guaranty, and the extensions of credit under the Credit Agreement will be made
in reliance upon the issuance of this Guaranty.
AGREEMENT
In consideration of the premises and to induce the Lenders to make
loans, extend credit or make other financial accommodations, and to continue to
keep such credit and other financial accommodations available to the Borrower,
the Guarantor hereby agrees with and for the benefit of the Lenders as follows:
1. Defined Terms. As used in this Guaranty, terms defined in the
first paragraph of this Guaranty and in the recital paragraphs are used herein
as defined therein, and the following terms shall have the following meanings:
"Cumulative Guarantors" shall mean the Guarantor and all other future
guarantors of the Liabilities.
"Liabilities" shall mean all indebtedness, obligations and liabilities
of the Borrower to any of the Lenders or the Agent (as defined in the Security
Agreement) in connection with or pursuant to the Loan Documents, including,
without limitation, all
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principal, interest (including, but without limitation, interest which, but for
the filing of a bankruptcy petition, would have accrued on the principal amount
of the Liabilities), charges, fees and all costs and expenses, including without
limitation reasonable fees and expenses of counsel, in each case whether now
existing or hereafter arising, direct or indirect (including without limitation
any participation interest acquired by any Lender in such indebtedness,
obligations and liabilities of the Borrower to any other person), absolute or
contingent, joint and/or several, secured or unsecured, arising by operation of
law or otherwise.
All other capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Credit Agreement.
2. Guarantee. (a) The Guarantor hereby guarantees to the Lenders,
irrevocably, absolutely and unconditionally, as primary obligor and not as
surety only, the prompt and complete payment of the Liabilities.
(b) All payments to be made under this Guaranty (except
pursuant to paragraph (c) below) shall be made to each Lender and the Agent pro
rata in accordance with the unpaid amount of Liabilities held by each Lender and
the Agent at the time of such payment.
(c) The Guarantor agrees to make prompt payment, on demand, of
any and all reasonable costs and expenses incurred by any Lender in connection
with enforcing the obligations of the Guarantor hereunder, including without
limitation the reasonable fees and disbursements of counsel.
3. Consents to Renewals, Modifications and Other Actions and
Events. This Guaranty and all of the obligations of the Guarantor hereunder
shall remain in full force and effect without regard to and shall not be
released, affected or impaired by: (a) any amendment, assignment, transfer,
modification of or addition or supplement to the Liabilities or any Agreement;
(b) any extension, indulgence, increase in the Liabilities or other action or
inaction in respect of any of the Loan Documents or otherwise with respect to
the Liabilities, or any acceptance of security for, or other guaranties of, any
of the Liabilities or Loan Documents, or any surrender, release, exchange,
impairment or alteration of any such security or guaranties including without
limitation the failing to perfect a security interest in any such security or
abstaining from taking advantage of or realizing upon any other guaranties or
upon any security interest in any such security; (c) any default by the Borrower
under, or any lack of due execution, invalidity or unenforceability of, or any
irregularity or other defect in, any of the Loan Documents; (d) any waiver by
any Lender or any other person of any required performance or otherwise of any
condition precedent or waiver of any requirement imposed by any of the Loan
Documents, any other guaranties or otherwise with respect to the Liabilities;
(e) any exercise or non-exercise of any right, remedy, power or privilege in
respect of this
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Guaranty, any other guaranty or any of the Loan Documents; (f) any sale, lease,
transfer or other disposition of the assets of the Borrower or any consolidation
or merger of the Borrower with or into any other person, corporation, or entity,
or any transfer or other disposition of any equity interests in the Borrower;
(g) any bankruptcy, insolvency, reorganization or similar proceedings involving
or affecting the Borrower or any other guarantor of the Liabilities; (h) the
release or discharge of the Borrower from the performance or observance of any
agreement, covenant, term or condition under any of the Liabilities or contained
in any of the Loan Documents, of any Cumulative Guarantor or of this Guaranty,
by operation of law or otherwise; or (i) any other cause whether similar or
dissimilar to the foregoing which, in the absence of this provision, would
release, affect or impair the obligations, covenants, agreements and duties of
the Guarantor hereunder, including without limitation any act or omission by any
Lender or any other person which increases the scope of the Guarantor's risk;
and in each case described in this paragraph whether or not the Guarantor shall
have notice or knowledge of any of the foregoing, each of which is specifically
waived by the Guarantor. The Guarantor warrants to the Lenders that it has
adequate means to obtain from the Borrower on a continuing basis information
concerning the financial condition and other matters with respect to the
Borrower and that it is not relying on any Lender to provide such information
either now or in the future.
4. Waivers, Etc. The Guarantor unconditionally waives: (a) notice
of any of the matters referred to in Paragraph 3 above; (b) all notices which
may be required by statute, rule of law or otherwise to preserve any rights of
any Lender, including, without limitation, notice to the Guarantor of default,
presentment to and demand of payment or performance from the Borrower and
protest for non-payment or dishonor; (c) any right to the exercise by any Lender
of any right, remedy, power or privilege in connection with any of the Loan
Documents; (d) any requirement of diligence or marshaling on the part of any
Lender; (e) any requirement that any Lender, in the event of any default by the
Borrower, first make demand upon or seek to enforce remedies against the
Borrower or any other Cumulative Guarantor before demanding payment under or
seeking to enforce this Guaranty; (f) any right to notice of the disposition of
any security which any Lender may hold from the Borrower or otherwise and any
right to object to the commercial reasonableness of the disposition of any such
security; and (g) all errors and omissions in connection with any Lender's
administration of any of the Liabilities, any of the Loan Documents or any other
Cumulative Guarantor, or any other act or omission of any Lender which changes
the scope of the Guarantor's risk. The obligations of the Guarantor hereunder
shall be complete and binding forthwith upon the execution of this Guaranty by
it and subject to no condition whatsoever, precedent or otherwise, and notice of
acceptance hereof or action in reliance hereon shall not be required.
5. Nature of Guaranty; Payments. This Guaranty is an absolute,
unconditional, irrevocable and continuing guaranty of payment and not a guaranty
of collection, and is wholly independent of and in addition to other rights and
remedies of
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any Lender with respect to the Borrower, any collateral, any Cumulative
Guarantor or otherwise, and it is not contingent upon the pursuit by any Lender
of any such rights and remedies, such pursuit being hereby waived by the
Guarantor. The obligations of the Guarantor hereunder shall be continuing and
shall continue (irrespective of any statute of limitations otherwise applicable)
and cover and include all the Liabilities of the Borrower accruing or in the
process of accruing to the Lenders before the Lenders deliver to the Guarantor a
release of this Guaranty, which is in writing, refers specifically to this
Guaranty, and is signed by a President, a Senior Vice President, or a Vice
President of each Lender. Nothing shall discharge or satisfy the liability of
the Guarantor hereunder except the full and irrevocable payment and performance
of all of the Liabilities and the expiration or termination of all the Loan
Documents. All payments to be made by the Guarantor hereunder shall be made
without set-offs or counterclaim, and the Guarantor hereby waives the assertion
of any such set-offs or counterclaims in any proceeding to enforce its
obligations hereunder. All payments to be made by the Guarantor hereunder shall
also be made without deduction or withholding for, or on account of, any present
or future taxes or other similar charges of whatsoever nature, provided that if
the Guarantor is nevertheless required by law to make any deduction or
withholding, the Guarantor shall pay to the Lenders such additional amounts as
may be necessary to ensure that the Lenders shall receive a net sum equal to the
sum which it would have received had no such deduction or withholding been made.
The Guarantor agrees that, if at any time all or any part of any payment
previously applied by any Lender to any of the Liabilities must be returned by
such Lender for any reason, whether by court order, administrative order, or
settlement and whether as a "voidable preference", "fraudulent conveyance" or
otherwise, the Guarantor remains liable for the full amount returned as if such
amount had never been received by such Lender, notwithstanding any termination
of this Guaranty or any cancellation of any of the Loan Documents and the
Liabilities and all obligations of the Guarantor hereunder shall be reinstated
in such case.
6. Evidence of Liabilities. Each Lender's books and records
showing the Liabilities shall be admissible in any action or proceeding, shall
be binding upon the Guarantor for the purpose of establishing the Liabilities
due from the Borrower and shall constitute prima facie proof, absent manifest
error, of the Liabilities of the Borrower to such Lender, as well as the
obligations of the Guarantor to such Lender.
7. Subordination, Subrogation, Contribution, Etc. The Guarantor
agrees that all present and future indebtedness, obligations and liabilities of
the Borrower to the Guarantor shall be fully subordinate and junior in right and
priority of payment to any indebtedness of the Borrower to the Lenders, and,
notwithstanding anything in this Guaranty or under any other guaranty or other
agreement to the contrary, the Guarantor hereby agrees that it will not exercise
or enforce any rights of subrogation, contribution, reimbursement or indemnity
whatsoever and all rights of recourse to security for the debts and obligations
of the Borrower, whether arising under this Guaranty, under any other guaranty
or agreement, by operation of law or otherwise until all Liabilities have
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been irrevocably paid in full and all Commitments to advance funds pursuant to
the Loan Documents shall have expired or been terminated.
5. Assignment by Lenders. Each Lender shall have the right to
assign and transfer this Guaranty to any assignee of any portion of the
Liabilities. Each Lender's successors and assigns hereunder shall have the right
to rely upon and enforce this Guaranty.
6. Joint and Several Obligations. The obligations of the
Guarantor hereunder and all other Cumulative Guarantors shall be joint and
several and the Guarantor shall be liable for all of the Liabilities to the
extent provided herein regardless of any other Cumulative Guarantors, and each
Lender shall have the right, in its sole discretion, to pursue its remedies
against the Guarantor without the need to pursue its remedies against any other
Cumulative Guarantor, whether now or hereafter in existence, or against any one
or more Cumulative Guarantors separately or against any two or more jointly, or
against some separately and some jointly.
7. Representations and Warranties. The Guarantor hereby
represents and warrants to the Lenders that:
(a) the execution, delivery and performance by the Guarantor
of this Guaranty are within its corporate powers, have been duly authorized by
all necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official, and do not contravene or
constitute a default under, any provision of applicable law or regulation or of
the articles of incorporation or other charter documents or bylaws of the
Guarantor, or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Guarantor, or result in the creation or imposition
of any lien, security interest or other charge or encumbrance on any asset of
the Guarantor;
(b) this Guaranty constitutes a legal, valid and binding
agreement of the Guarantor, enforceable against the Guarantor in accordance with
its terms;
(c) as of the date hereof, each of the following is true and
correct for the Guarantor: (i) the fair saleable value and the fair valuation of
the Guarantor's property is greater than the total amount of its liabilities
(including contingent liabilities) and greater than the amount that would be
required to pay its probable aggregate liability on its existing debts as they
become absolute and matured, (ii) the Guarantor's capital is not unreasonably
small in relation to its current and/or contemplated business or other
undertaken transactions, and (iii) the Guarantor does not intend to incur, or
believe that it will incur, debt beyond its ability to pay such debts as they
become due; and
(d) the Borrower and the Guarantor are engaged as an
integrated group in the cable television business and that the Guarantor has
requested the Lenders to continue
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to lend and to make credit available to the Borrower for the purpose of
financing the integrated operations of the Borrower and the Guarantor, with the
Guarantor expecting to derive benefit, direct or indirectly, from the loans and
other credit extended by the Lenders to the Borrower, both in the Guarantor's
separate capacity and as a member of the integrated group, inasmuch as the
successful operation and condition of the Guarantor is dependent upon the
continued successful performance of the functions of the integrated group as a
whole. The Guarantor hereby determines and agrees that the execution, delivery
and performance of this Guaranty are necessary and convenient to the conduct,
promotion or attainment of the business of the Guarantor and in furtherance of
the corporate purposes of the Guarantor.
8. Binding on Successors and Assigns. This Guaranty shall be the
valid, binding and enforceable obligation of the Guarantor and its successors
and assigns.
9. Indemnity. As a separate, additional and continuing
obligation, the Guarantor unconditionally and irrevocably undertakes and agrees
with each Lender that, should the Liabilities not be recoverable from the
Guarantor as guarantor under this Guaranty for any reason whatsoever (including,
without limitation, by reason of any provision of any of the Liabilities or the
Loan Documents being or becoming void, unenforceable, or otherwise invalid under
any applicable law), then, notwithstanding any knowledge thereof by any Lender
at any time, the Guarantor as original and independent obligor, upon demand by
the Lenders, will make payment to the Lenders of the Liabilities by way of a
full indemnity.
10. Cumulative Rights and Remedies, Etc. The obligations of the
Guarantor under this Guaranty are continuing obligations and a new cause of
action shall arise in respect of each default hereunder. No course of dealing on
the part of any Lender, nor any delay or failure on the part of any Lender in
exercising any right, power or privilege hereunder, shall operate as a waiver of
such right, power, or privilege or otherwise prejudice the Lenders' rights and
remedies hereunder; nor shall any single or partial exercise thereof preclude
any further exercise thereof or the exercise of any other right, power or
privilege. No right or remedy conferred upon or reserved to any Lender under
this Guaranty is intended to be exclusive of any other right or remedy, and
every right and remedy shall be cumulative and in addition to every other right
or remedy given hereunder or now or hereafter existing under any applicable law.
Every right and remedy given by this Guaranty or by applicable law to the
Lenders may be exercised from time to time and as often as may be deemed
expedient by any Lender.
11. Severability. If any one or more provisions of this Guaranty
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected, impaired, prejudiced or disturbed thereby, and any
provision hereunder found partially unenforceable shall be interpreted to be
enforceable to the fullest extent possible. If at any time all or any portion of
the obligation of the Guarantor under this Guaranty would
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otherwise be determined by a court of competent jurisdiction to be invalid,
unenforceable or avoidable under Section 548 of the Federal Bankruptcy Code or
under any fraudulent conveyance or transfer laws or similar applicable law of
any jurisdiction, then notwithstanding any other provisions of this Guaranty to
the contrary such obligation or portion thereof of the Guarantor under this
Guaranty shall be limited to the maximum amount of which this Guaranty is
determined to be enforceable.
12. Merger; Amendments. This Guaranty is intended as a final
expression of the subject matter hereof and is also intended as a complete and
exclusive statement of the terms hereof. The Guarantor's liability hereunder is
independent of and in addition to its liability under any other guaranty
previously or subsequently executed. No course of dealing, course of performance
or trade usage, and no parole evidence of any nature, shall be used to
supplement or modify any terms hereof, nor are there any conditions to the full
effectiveness of this Guaranty. None of the terms and provisions of this
Guaranty may be waived, altered, modified or amended in any way except by an
instrument in writing executed by duly authorized officers of each Lender and
the Guarantor.
13. Governing Law; Headings. This Guaranty shall be governed by
and construed in accordance with the laws of the State of Michigan without
giving effect to the choice of law principles of such state. The headings of the
various paragraphs hereof are for the convenience of reference only and shall in
no way modify any of the terms or provisions hereof.
14. Notices. Any notice, demand, consent or request given or made
to the Guarantor by any Lender shall be deemed to have been duly given or made
if sent in writing (including telecommunications) to the Guarantor to the
address or telex or telecopy number set forth below the name of the Guarantor on
the signature page hereof, or at such other address or telex or telecopy number
as the Guarantor may hereafter specify to the Lenders in writing. All notices or
other communications sent by means of telecopy, telex or other wire transmission
shall be made with request for assurance of receipt in a manner typical with
respect to communications of that type. Written notices or other communications
shall be deemed delivered upon receipt if delivered by hand or by telecopy,
three business days after mailing if mailed, or one business day after deposit
with an overnight courier service if delivered by overnight courier. Notices or
other communications delivered by hand shall be deemed delivered upon receipt.
15. Recourse. No recourse under or upon any obligation, covenant
or agreement of Guarantor in this Agreement shall be had against any officer,
director or employee, past, present or future, of the Guarantor or of any
successor corporation or against the property or asset of any such officer,
employee or director, either directly or through the Guarantor or any successor
corporation, whether by virtue or any constitution, statue or rule of law, or by
the enforcement of any assessment or penalty or otherwise.
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16. WAIVER OF JURY TRIAL. THE LENDERS, IN ACCEPTING THIS GUARANTY,
AND THE GUARANTOR, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT
WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY
LENDER MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT
OF THIS GUARANTY OR ANY RELATED INSTRUMENT OR AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS GUARANTY OR ANY COURSE OF CONDUCT, DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY OF THEM. NEITHER THE
LENDERS NOR THE GUARANTOR SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR
OTHERWISE, ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER
ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS
SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY ANY
OF THE LENDERS OR THE GUARANTOR EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY ALL
OF THEM. THIS GUARANTY IS FREELY AND VOLUNTARILY GIVEN TO THE LENDERS BY THE
GUARANTOR WITHOUT ANY DURESS OR COERCION, AND AFTER THE GUARANTOR HAS EITHER
CONSULTED WITH COUNSEL OR BEEN GIVEN AN OPPORTUNITY TO DO SO. THE GUARANTOR HAS
CAREFULLY AND COMPLETELY READ ALL OF THE TERMS AND PROVISIONS OF THIS GUARANTY
AND OF EACH AGREEMENT.
EXECUTED and effective as of the 2nd day of March, 2001.
XXXXX XXXXX FINANCE CORP.
By: _______________________________________
X. X. Xxxxx
Its: President
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