PARENT GUARANTY
THIS GUARANTY AGREEMENT (this "Guaranty"), dated as of the 30th day of
September, 1996 (this "Guaranty"), is made between (a) XXXXXXXX HOLDINGS,
L.L.C., a Delaware limited liability company ("Holdings"), and BRIGHTVIEW
COMMUNICATIONS GROUP, INC., a Delaware corporation ("BrightView"; each of
Holdings and BrightView, a "Guarantor," and collectively, the "Guarantors"), and
(b) FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as administrative agent for the
banks and other financial institutions (collectively, the "Lenders") party to
the Credit Agreement referred to below (in such capacity, the "Administrative
Agent"), for the benefit of the Guaranteed Parties (as hereinafter defined).
Capitalized terms used herein without definition shall have the meanings given
to them in the Credit Agreement referred to below.
RECITALS
X. Xxxxxxxx Publishing Company, L.L.C., a Delaware limited liability
company (the "Borrower"), the Lenders, CIBC Inc., as Documentation Agent, and
First Union National Bank of North Carolina, as Administrative Agent and as
Syndication Agent, are parties to a Credit Agreement, dated as of September 30,
1996 (as amended, modified or supplemented from time to time, the "Credit
Agreement"), providing for the availability of certain credit facilities to the
Borrower upon the terms and subject to the conditions set forth therein. The
Guarantors own all of the membership interests in the Borrower.
B. It is a condition to the extension of credit to the Borrower under the
Credit Agreement that each Guarantor shall have agreed, by executing and
delivering this Guaranty, to guarantee to the Guaranteed Parties the payment in
full of the Guaranteed Obligations (as hereinafter defined). The Guaranteed
Parties are relying on this Guaranty in their decision to extend credit to the
Borrower under the Credit Agreement, and would not enter into the Credit
Agreement without this Guaranty.
C. The Guarantors will obtain benefits as a result of the extension of
credit to the Borrower under the Credit Agreement, which benefits are hereby
acknowledged, and, accordingly, desire to execute and deliver this Guaranty.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, to induce the Guaranteed Parties to enter into the Credit
Agreement and to induce the Lenders to extend credit to the Borrower thereunder,
each Guarantor hereby agrees as follows:
1. Guaranty. (a) Each Guarantor hereby irrevocably, absolutely and
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unconditionally, and jointly and severally:
(i) guarantees to the Lenders (including the Issuing Lender and
the Swingline Lender in their capacities as such, and including any Lender
in its capacity as a counterparty
to any Interest Rate Protection Agreement with the Borrower), the
Documentation Agent and the Administrative Agent (collectively, the
"Guaranteed Parties") the full and prompt payment, at any time and from
time to time as and when due (whether at the stated maturity, by
acceleration or otherwise), of all Obligations of the Borrower under the
Credit Agreement and the other Credit Documents, including, without
limitation, all principal of and interest on the Loans, all Reimbursement
Obligations in respect of Letters of Credit, all fees, expenses,
indemnities and other amounts payable by the Borrower under the Credit
Agreement or any other Credit Document (including interest accruing after
the filing of a petition or commencement of a case by or with respect to
the Borrower seeking relief under any applicable federal and state laws
pertaining to bankruptcy, reorganization, arrangement, moratorium,
readjustment of debts, dissolution, liquidation or other debtor relief,
specifically including, without limitation, the Bankruptcy Code and any
fraudulent transfer and fraudulent conveyance laws (collectively,
"Insolvency Laws"), whether or not the claim for such interest is allowed
in such proceeding), all obligations of the Borrower to any Lender under
any Interest Rate Protection Agreement, and all Obligations that, but for
the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, would become due, in each case whether now existing or hereafter
created or arising and whether direct or indirect, absolute or contingent,
due or to become due (all liabilities and obligations described in this
clause (i), collectively, the "Guaranteed Obligations"); and
(ii) agrees to pay or reimburse upon demand all reasonable costs
and expenses (including, without limitation, reasonable attorneys' fees and
expenses) incurred or paid by (y) any Guaranteed Party in connection with
any suit, action or proceeding to enforce or protect any rights of the
Guaranteed Parties hereunder and (z) the Administrative Agent in connection
with any amendment, modification or waiver hereof or consent pursuant
hereto (all liabilities and obligations described in this clause (ii),
collectively, the "Other Obligations"; and the Other Obligations, together
with the Guaranteed Obligations, the "Total Obligations").
(b) The guaranty of each Guarantor set forth in this SECTION 1 is a
guaranty of payment as a primary obligor, and not a guaranty of collection.
2. Guaranty Absolute. Each Guarantor agrees that its obligations
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hereunder are irrevocable, absolute and unconditional, are independent of the
Guaranteed Obligations and any Collateral or other security therefor or other
guaranty or liability in respect thereof, whether given by such Guarantor or any
other Person, and (to the full extent permitted by applicable law) shall not be
discharged, limited or otherwise affected by reason of any of the following,
whether or not such Guarantor has notice or knowledge thereof:
(i) any change in the time, manner or place of payment of, or
in any other term of, any Guaranteed Obligations or any guaranty or other
liability in respect thereof, or any amendment, modification or supplement
to, restatement of, or consent to any rescission or waiver of or departure
from, any provisions of the Credit Agreement, any other Credit Document or
any agreement or instrument delivered pursuant to any of the foregoing;
(ii) the invalidity or unenforceability of any Guaranteed
Obligations, any guaranty or other liability in respect thereof or any
provisions of the Credit Agreement, any other Credit Document or any
agreement or instrument delivered pursuant to any of the foregoing;
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(iii) the release of either Guarantor hereunder or the taking,
acceptance or release of other guarantees of any Guaranteed Obligations or
additional Collateral or other security for any Guaranteed Obligations or
for any guaranty or other liability in respect thereof;
(iv) any renewal, extension, increase, decrease, release,
discharge, modification, settlement, compromise or other action or inaction
in respect of any Guaranteed Obligations or any guaranty or other liability
in respect thereof (other than satisfaction of the Termination Requirements
(as hereinafter defined)), including any acceptance or refusal of any offer
or performance with respect to the same or the subordination of the same to
the payment of any other obligations;
(v) any agreement not to pursue or enforce or any failure to
pursue or enforce (whether voluntarily or involuntarily as a result of
operation of law, court order or otherwise) any right or remedy in respect
of any Guaranteed Obligations, any guaranty or other liability in respect
thereof or any Collateral or other security for any of the foregoing; any
sale, exchange, release, substitution, compromise or other action in
respect of any such Collateral or other security; or any failure to create,
protect, perfect, secure, insure, continue or maintain any Liens in any
such Collateral or other security;
(vi) the exercise of any right or remedy available under the
Credit Documents, at law, in equity or otherwise in respect of any
Collateral or other security for any Guaranteed Obligations or for any
guaranty or other liability in respect thereof, in any order and by any
manner thereby permitted, including, without limitation, foreclosure on any
such Collateral or other security by any manner of sale thereby permitted,
whether or not every aspect of such sale is commercially reasonable;
(vi) any bankruptcy, reorganization, arrangement, liquidation,
insolvency, dissolution, termination, reorganization or like change in the
corporate structure or existence of the Borrower or any other Person
directly or indirectly liable for any Guaranteed Obligations (it being
understood and agreed that, as between each Guarantor, on the one hand, and
the Guaranteed Parties, on the other hand, (a) the maturity of the
Guaranteed Obligations may be accelerated as provided in the Credit
Agreement for the purposes of such Guarantor's guaranty herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed hereby, and (b) in
the event of any declaration of acceleration of such Obligations as
provided in the Credit Agreement, such Obligations (whether or not due and
payable) shall forthwith become due and payable in full by such Guarantor
for purposes of this Guaranty);
(vi) any manner of application of any payments by or amounts
received or collected from any Person, by whomsoever paid and howsoever
realized, whether in reduction of any Guaranteed Obligations or any other
obligations of the Borrower or any other Person directly or indirectly
liable for any Guaranteed Obligations, regardless of what Guaranteed
Obligations may remain unpaid after any such application; or
(ix) any other circumstance that might otherwise constitute a
legal or equitable discharge of, or a defense, set-off or counterclaim
available to, the Borrower, either Guarantor or a surety or guarantor
generally, other than the occurrence of all of the following: (x) the
payment in full of the Total Obligations (other than indemnity obligations
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not then due and payable and that survive termination of the Credit
Documents), (y) the termination or expiration of all Letters of Credit
under the Credit Agreement and (z) the termination of the Commitments under
the Credit Agreement (the events in clauses (x), (y) and (z) above,
collectively, the "Termination Requirements").
3. Waivers. Each Guarantor hereby knowingly, voluntarily and expressly
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waives to the full extent permitted by applicable law:
(i) presentment, demand for payment, demand for performance,
protest and notice of any other kind, including, without limitation, notice
of nonpayment or other nonperformance (including notice of default under
any Credit Document with respect to any Guaranteed Obligations), protest,
dishonor, acceptance hereof, extension of additional credit to the Borrower
and of any of the matters referred to in SECTION 2 and of any rights to
consent thereto;
(ii) any right to require the Guaranteed Parties or any of them,
as a condition of payment or performance by the Guarantors hereunder, to
proceed against, or to exhaust or have resort to any Collateral or other
security from or any deposit balance or other credit in favor of, the
Borrower or any other Person directly or indirectly liable for any
Guaranteed Obligations, or to pursue any other remedy or enforce any other
right; and any other defense based on an election of remedies with respect
to any Collateral or other security for any Guaranteed Obligations or for
any guaranty or other liability in respect thereof, notwithstanding that
any such election (including any failure to pursue or enforce any rights or
remedies) may impair or extinguish any right of indemnification,
contribution, reimbursement or subrogation or other right or remedy of
either Guarantor against the Borrower or any other Person directly or
indirectly liable for any Guaranteed Obligations or any such Collateral or
other security; and, without limiting the generality of the foregoing, each
Guarantor hereby specifically waives the benefits of Sections 26-7 through
26-9, inclusive, of the General Statutes of North Carolina, as amended from
time to time, and any similar statute or law of any other jurisdiction, as
the same may be amended from time to time;
(ii) any right or defense based on or arising by reason of any
right or defense of the Borrower or any other Person, including, without
limitation, any defense based on or arising from a lack of authority or
other disability of the Borrower or any other Person, the invalidity or
unenforceability of any Guaranteed Obligations, any Collateral or other
security therefor or any Credit Document or other agreement or instrument
delivered pursuant thereto, or the cessation of the liability of the
Borrower for any reason other than the satisfaction of the Termination
Requirements;
(iv) any defense based on the acts or omissions of any
Guaranteed Party in the administration of the Guaranteed Obligations, any
guaranty or other liability in respect thereof or any Collateral or other
security for any of the foregoing, and promptness, diligence or any
requirement that any Guaranteed Party create, protect, perfect, secure,
insure, continue or maintain any Liens in any such Collateral or other
security;
(v) any right to assert against any Guaranteed Party, as a
defense, counterclaim, crossclaim or set-off, any defense, counterclaim,
claim, right of recoupment or set-off that it
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may at any time have against any Guaranteed Party (including, without
limitation, failure of consideration, statute of limitations, payment,
accord and satisfaction and usury), other than compulsory counterclaims;
and
(vi) any defense based on or afforded by any applicable law that
limits the liability of or exonerates guarantors or sureties or that may in
any other way conflict with the terms of this Guaranty.
4. Waiver of Subrogation; Subordination. Each Guarantor hereby
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knowingly, voluntarily and expressly waives, until satisfaction of the
Termination Requirements, all claims and rights that it may have against the
Borrower at any time as a result of any payment made under or in connection with
this Guaranty or the performance or enforcement hereof, including all rights of
subrogation to the rights of any Guaranteed Party against the Borrower, all
rights of indemnity, contribution or reimbursement against the Borrower, all
rights to enforce any remedies of any Guaranteed Party against the Borrower, and
any benefit of, and any right to participate in, any Collateral or other
security held by any Guaranteed Party to secure payment of the Guaranteed
Obligations, in each case whether such claims or rights arise by contract,
statute (including, without limitation, the Bankruptcy Code), common law or
otherwise. Each Guarantor agrees that all indebtedness and other obligations,
whether now or hereafter existing, of the Borrower to such Guarantor, including,
without limitation, any such indebtedness in any proceeding under the Bankruptcy
Code and any intercompany receivables, together with any interest thereon, shall
be, and hereby are, subordinated and made junior in right of payment to the
Total Obligations. Each Guarantor agrees further that if any amount shall be
paid to or any distribution received by such Guarantor (i) on account of any
such indebtedness at any time after the occurrence and during the continuance of
an Event of Default, or (ii) on account of any such rights of subrogation,
indemnity, contribution or reimbursement at any time prior to the satisfaction
of the Termination Requirements, such amount or distribution shall be deemed to
have been received and to be held in trust for the benefit of the Guaranteed
Parties, and shall forthwith be delivered to the Administrative Agent in the
form received (with any necessary endorsements in the case of written
instruments), to be applied against the Guaranteed Obligations, whether or not
matured, in accordance with the terms of the applicable Credit Documents and
without in any way discharging, limiting or otherwise affecting the liability of
such Guarantor under any other provision of this Guaranty.
5. Representations and Warranties. Each Guarantor represents and
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warrants to the Guaranteed Parties as follows:
(a) Such Guarantor (i) is a limited liability company or corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has the full limited liability company or
corporate power and authority to execute, deliver and perform this Guaranty and
the other Transaction Documents to which it is or will be a party, to own and
hold its property and to engage in its business as presently conducted, and
(iii) is duly qualified to do business as a foreign limited liability company or
corporation and is in good standing in each jurisdiction where the nature of its
business or the ownership of its properties requires it to be so qualified,
except where the failure to be so qualified could not, individually or in the
aggregate, be reasonably expected to have a Material Adverse Effect.
(b) Such Guarantor has taken, or on the Closing Date will have taken, all
necessary limited liability company or corporate action to execute, deliver and
perform this Guaranty and each
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of the other Transaction Documents to which it is or will be a party, and has,
or on the Closing Date (or any later date of execution and delivery) will have,
validly executed and delivered this Guaranty and each of the other Transaction
Documents to which it is or will be a party. This Guaranty constitutes, and upon
execution and delivery thereof each of such other Transaction Documents will
constitute, the legal, valid and binding obligation of such Guarantor,
enforceable against it in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally or by general equitable
principles or principles of good faith and fair dealing.
(c) The execution, delivery and performance by such Guarantor of this
Guaranty and each of the other Transaction Documents to which it is or will be a
party, compliance by it with the terms hereof and thereof, and the consummation
of the Transactions, do not and will not (i) violate any provision of its
articles of organization, certificate of incorporation, operating agreement or
bylaws, as applicable, or contravene any other Requirement of Law applicable to
it, (ii) conflict with, result in a breach of or constitute (with notice, lapse
of time or both) a default under any indenture, agreement or other instrument to
which it is a party, by which it or any of its properties is bound or to which
it is subject, (iii) require any approval of its stockholders or members or any
approval or consent of any Person under any agreement to which it is a party,
except for such approvals or consents which will be obtained on or before the
Closing Date and disclosed in writing to the Lenders or such approvals or
consents the failure of which to obtain could not reasonably be expected, singly
or in the aggregate, to have a Material Adverse Effect, or (iv) except for the
Liens granted pursuant to the Security Documents, result in or require the
creation or imposition of any Lien upon any of its properties or assets.
(d) No consent, approval, authorization or other action by, notice to, or
registration or filing with, any Governmental Authority or other Person is or
will be required as a condition to or otherwise in connection with the due
execution, delivery and performance by such Guarantor of this Guaranty or any of
the other Transaction Documents to which it is or will be a party or the
legality, validity or enforceability hereof or thereof, other than (i) consents,
authorizations and filings in connection with the Xxxxxxxx Acquisition that have
been (or on or prior to the Closing Date will have been) made or obtained and
that are (or on the Closing Date will be) in full force and effect, which
consents, authorizations and filings are listed on SCHEDULE 5.4 to the Credit
Agreement, and (ii) filings of Uniform Commercial Code financing statements and
other instruments and actions necessary to perfect the Liens created by the
Security Documents.
(e) There are no actions, investigations, suits or proceedings pending or,
to the knowledge of such Guarantor (after due investigation) threatened, at law,
in equity or in arbitration, before any court, other Governmental Authority or
other Person, (i) against or affecting such Guarantor or any of its properties
that could, if adversely determined, be reasonably expected to have a Material
Adverse Effect, or (ii) with respect to this Guaranty, any of the other
Transaction Documents or any of the Transactions.
(f) All representations and warranties contained in the Credit Agreement
or any of the other Credit Documents that relate to such Guarantor are true and
correct in all material respects.
(g) Such Guarantor has been provided with a true and complete copy of the
executed Credit Agreement, as in effect as of the date hereof, and its principal
officers are familiar with the contents thereof, particularly insofar as the
contents thereof relate or apply to such Guarantor.
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6. Financial Condition of the Borrower. Each Guarantor represents that
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it has knowledge of the Borrower's financial condition and affairs and that it
has adequate means to obtain from the Borrower on an ongoing basis information
relating thereto and to the Borrower's ability to pay and perform the Guaranteed
Obligations, and agrees to assume the responsibility for keeping, and to keep,
so informed for so long as this Guaranty is in effect with respect to such
Guarantor. Each Guarantor agrees that the Guaranteed Parties shall have no
obligation to investigate the financial condition or affairs of the Borrower for
the benefit of either Guarantor nor to advise either Guarantor of any fact
respecting, or any change in, the financial condition or affairs of the Borrower
that might become known to any Guaranteed Party at any time, whether or not such
Guaranteed Party knows or believes or has reason to know or believe that any
such fact or change is unknown to either Guarantor, or might (or does)
materially increase the risk of either Guarantor as guarantor, or might (or
would) affect the willingness of either Guarantor to continue as a guarantor of
the Guaranteed Obligations.
7. Negative Covenants. Each Guarantor covenants and agrees that, until
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the termination of the Commitments and all Letters of Credit and the payment in
full of all principal and interest with respect to the Loans and all
Reimbursement Obligations together with all other amounts then due and owing
under the Credit Agreement:
(a) Such Guarantor will not incur, create, assume or suffer to exist any
Indebtedness (including, without limitation, any Contingent Obligations), except
for (i) the Indebtedness created by this Guaranty, (ii) guaranties of the
Subordinated Bridge Indebtedness, the Subordinated Term Indebtedness and any
Permitted Refinancing Indebtedness (provided that such guaranties are
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subordinated to the obligations of the Guarantors under this Guaranty to at
least the same extent and in the same manner as the Subordinated Bridge
Indebtedness, the Subordinated Term Indebtedness or Permitted Refinancing
Indebtedness, as the case may be, is (or are) subordinated to the Guaranteed
Obligations), and (iii) Indebtedness in an aggregate principal amount not
exceeding $5,000,000 outstanding at any time issued to repurchase its Capital
Stock from former management employees in connection with their termination or
departure (provided that such Indebtedness is subordinated in right and time of
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payment to the Guaranteed Obligations on terms and conditions satisfactory to
the Administrative Agent in its sole discretion (which terms and conditions may,
at the sole discretion of the Administrative Agent, provide that such
Indebtedness shall not mature or require any cash payment of principal or
interest at any time prior to the first anniversary of the Tranche B Maturity
Date)).
(b) Such Guarantor shall not own, lease, manage or otherwise operate any
assets or properties, or make any investments, loans or advances to any Person,
in each case other than in connection with the activities described in
subsection (c) below.
(c) Such Guarantor shall not conduct, transact or otherwise engage, or
commit to transact, conduct or otherwise engage, in any business or operations
other than (i) the consummation of the Transactions, (ii) the ownership of
equity interests in the Borrower (and, as to BrightView, also the ownership of
equity interests in Holdings) and the exercise of rights and performance of
obligations in connection therewith, (iii) the entry into, and exercise of
rights and performance of obligations in respect of, (A) this Guaranty and any
other Transaction Documents to which it is or may become a party, (B) contracts
and agreements with or for the benefit of officers, directors and employees of
it or any Subsidiary thereof relating to their employment or directorships, (C)
insurance policies and related contracts and agreements and (D) equity
subscription agreements, registration
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rights agreements, warrant agreements, voting and other stockholder agreements,
engagement letters, underwriting agreements and other agreements in respect of
its equity securities or any offering, issuance or sale thereof, (iv) the
offering, issuance and sale of its equity securities to the extent such
offering, issuance or sale does not constitute a Default or Event of Default,
(v) the filing of registration statements, and compliance with applicable
reporting and other obligations, under federal, state or other securities laws,
(vi) the performance of obligations under and compliance with its articles of
organization and operating agreement, or certificate of incorporation and by-
laws, or any applicable law, ordinance, regulation, rule, order, judgment,
decree or permit, including, without limitation, as a result of or in connection
with the activities of its Subsidiaries, (vii) the performance of contractual
obligations not otherwise prohibited hereunder, (viii) the incurrence and
payment of its business expenses and any taxes for which it may be liable, and
(ix) other activities reasonably incidental or related to the foregoing.
(d) Such Guarantor will (i) maintain and preserve in full force and effect
its limited liability company or corporate existence, as applicable, and (ii)
comply in all respects with all Requirements of Law applicable in respect of the
conduct of its business and the ownership and operation of its properties,
except to the extent the failure so to comply could not be reasonably expected
to have a Material Adverse Effect.
(e) Such Guarantor will contribute to the Borrower, promptly upon its
receipt thereof, such of the Net Cash Proceeds received by it from any Debt
Issuance or Equity Issuance as shall enable the Borrower to comply with its
obligations under SECTION 2.6(F) of the Credit Agreement arising as a result of
such Debt Issuance or Equity Issuance.
(f) Such Guarantor will deliver to the Lenders, promptly upon the sending,
filing or receipt thereof, all reports and other information sent, filed or
received by it of the types described in SECTIONS 6.2(D) and 6.2(E) of the
Credit Agreement.
(g) Such Guarantor shall not take or omit to take any action if such
action or omission would result in a violation of any of the covenants of the
Borrower contained in ARTICLE VI, ARTICLE VII or ARTICLE VIII of the Credit
Agreement.
8. Payments; Application; Set-Off. (a) Each Guarantor agrees that, upon
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the failure of the Borrower to pay any Guaranteed Obligations when and as the
same shall become due (whether at the stated maturity, by acceleration or
otherwise), and without limitation of any other right or remedy that any
Guaranteed Party may have at law, in equity or otherwise against such Guarantor,
such Guarantor will forthwith pay or cause to be paid to the Administrative
Agent, for the benefit of the Guaranteed Parties, an amount equal to the amount
of the Guaranteed Obligations then due and owing as aforesaid.
(b) All payments made by each Guarantor hereunder will be made in Dollars
to the Administrative Agent, without set-off, counterclaim or other defense and,
in accordance with SECTION 2.17 of the Credit Agreement, free and clear of and
without deduction for any Taxes, each Guarantor hereby agreeing to comply with
and be bound by the provisions of SECTION 2.17 of the Credit Agreement in
respect of all payments made by it hereunder and the provisions of which Section
are hereby incorporated into and made a part of this Guaranty by this reference
as if set forth herein at length.
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(c) All payments made hereunder shall be applied upon receipt as follows:
(i) first, to the payment of all Other Obligations owing to the
Administrative Agent;
(ii) second, after payment in full of the amounts specified in
clause (i) above, to the ratable payment of all other Total Obligations
owing to the Guaranteed Parties; and
(iii) third, after payment in full of the amounts specified in
clauses (i) and (ii) above, and following the termination of this Guaranty,
to the Guarantors or any other Person lawfully entitled to receive such
surplus.
(d) For purposes of applying amounts in accordance with this Section, the
Administrative Agent shall be entitled to rely upon any Guaranteed Party that
has entered into an Interest Rate Protection Agreement with the Borrower for a
determination (which such Guaranteed Party agrees to provide or cause to be
provided upon request of the Administrative Agent) of the outstanding Guaranteed
Obligations owed to such Guaranteed Party under any such Interest Rate
Protection Agreement. Unless it has actual knowledge (including by way of
written notice from any such Guaranteed Party) to the contrary, the
Administrative Agent, in acting hereunder, shall be entitled to assume that no
Interest Rate Protection Agreements or Obligations in respect thereof are in
existence between any Guaranteed Party and the Borrower.
(e) The Guarantors shall remain jointly and severally liable to the extent
of any deficiency between the amount of all payments made hereunder and the
aggregate amount of the sums referred to in clauses (i) and (ii) of subsection
(c) above.
(f) In addition to all other rights and remedies available under the
Credit Documents or applicable law or otherwise, upon and at any time after the
occurrence and during the continuance of any Event of Default, each Guaranteed
Party may, and is hereby authorized by each Guarantor, at any such time and from
time to time, to the fullest extent permitted by applicable law, without
presentment, demand, protest or other notice of any kind, all of which are
hereby knowingly and expressly waived by each Guarantor, to set off and to apply
any and all deposits (general or special, time or demand, provisional or final)
and any other property at any time held (including at any branches or agencies,
wherever located), and any other indebtedness at any time owing, by such
Guaranteed Party to or for the credit or the account of such Guarantor against
any or all of the obligations of such Guarantor to such Guaranteed Party
hereunder now or hereafter existing, whether or not such obligations may be
contingent or unmatured, each Guarantor hereby granting to each Guaranteed Party
a continuing security interest in and Lien upon all such deposits and other
property as security for such obligations. Each Guaranteed Party agrees to
notify any affected Guarantor promptly after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
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validity of such set-off and application.
9. Enforcement. The Guaranteed Parties agree that, except as provided in
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SECTION 8(F), this Guaranty may be enforced only by the Administrative Agent,
acting upon the instructions or with the consent of the Required Lenders as
provided for in the Credit Agreement, and that no Guaranteed Party shall have
any right individually to enforce or seek to enforce this Guaranty or to realize
upon any Collateral or other security given to secure the payment and
performance of the Guarantors' obligations hereunder. The obligations of each
Guarantor hereunder are independent of the
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Guaranteed Obligations, and a separate action or actions may be brought against
either Guarantor whether or not action is brought against the Borrower or the
other Guarantor and whether or not the Borrower or the other Guarantor is joined
in any such action. Each Guarantor agrees that to the extent all or part of any
payment of the Guaranteed Obligations made by any Person is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid by or on behalf of any Guaranteed Party to a trustee, receiver or any
other party under any Insolvency Laws (the amount of any such payment, a
"Reclaimed Amount"), then, to the extent of such Reclaimed Amount, this Guaranty
shall continue in full force and effect or be revived and reinstated, as the
case may be, as to the Guaranteed Obligations intended to be satisfied as if
such payment had not been received; and each Guarantor acknowledges that the
term "Guaranteed Obligations" includes all Reclaimed Amounts that may arise from
time to time. Notwithstanding any other provisions contained herein or in any
other Credit Document, no provision of this Guaranty shall require or permit the
collection from either Guarantor of interest in excess of the maximum rate or
amount that such Guarantor may be required or permitted to pay pursuant to
applicable law.
10. Amendments, Waivers, etc. No amendment, modification, waiver,
------------------------
discharge or termination of, or consent to any departure by either Guarantor
from, any provision of this Guaranty, shall be effective unless in a writing
executed and delivered in accordance with SECTION 11.6 of the Credit Agreement,
and then the same shall be effective only in the specific instance and for the
specific purpose for which given.
11. Continuing Guaranty; Term; Successors and Assigns; Assignment;
--------------------------------------------------------------
Survival. This Guaranty is a continuing guaranty and covers all of the
--------
Guaranteed Obligations as the same may arise and be outstanding at any time and
from time to time from and after the date hereof, and shall (i) remain in full
force and effect until satisfaction of all of the Termination Requirements, (ii)
be binding upon and enforceable against each Guarantor and its successors and
assigns (provided, however, that no Guarantor may sell, assign or transfer any
-------- -------
of its rights, interests, duties or obligations hereunder without the prior
written consent of all of the Lenders) and (iii) inure to the benefit of and be
enforceable by each Guaranteed Party and its successors and assigns. All
representations, warranties, covenants and agreements herein shall survive the
execution and delivery of this Guaranty.
12. Governing Law; Consent to Jurisdiction. THIS GUARANTY SHALL BE
--------------------------------------
INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE GUARANTEED PARTIES AND THE
GUARANTORS DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO
CONFLICTS OF LAW PROVISIONS) OF THE STATE OF NORTH CAROLINA. AS PART OF THE
CONSIDERATION FOR NEW VALUE THIS DAY RECEIVED, EACH GUARANTOR HEREBY CONSENTS TO
THE JURISDICTION OF ANY STATE COURT WITHIN MECKLENBURG COUNTY, NORTH CAROLINA OR
ANY FEDERAL COURT LOCATED WITHIN THE WESTERN DISTRICT OF THE STATE OF NORTH
CAROLINA FOR ANY PROCEEDING INSTITUTED HEREUNDER OR UNDER ANY OF THE OTHER
CREDIT DOCUMENTS, OR ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY OR ANY
OF THE OTHER CREDIT DOCUMENTS, OR ANY PROCEEDING TO WHICH ANY GUARANTEED PARTY
OR SUCH GUARANTOR IS A PARTY, INCLUDING ANY ACTIONS BASED UPON, ARISING OUT OF,
OR IN CONNECTION WITH ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY GUARANTEED PARTY OR SUCH GUARANTOR.
EACH GUARANTOR IRREVOCABLY
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AGREES TO BE BOUND (SUBJECT TO ANY AVAILABLE RIGHT OF APPEAL) BY ANY JUDGMENT
RENDERED OR RELIEF GRANTED THEREBY AND FURTHER WAIVES ANY OBJECTION THAT IT MAY
HAVE BASED ON LACK OF JURISDICTION OR IMPROPER VENUE OR FORUM NON CONVENIENS TO
--------------------
THE CONDUCT OF ANY SUCH PROCEEDING. EACH GUARANTOR CONSENTS THAT ALL SERVICE OF
PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO IT AT ITS
ADDRESS SET FORTH HEREINBELOW, AND SERVICE SO MADE SHALL BE DEEMED TO BE
COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR THREE (3) BUSINESS DAYS
AFTER DEPOSIT IN THE UNITED STATES MAILS, PROPER POSTAGE PREPAID AND PROPERLY
ADDRESSED. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT TO SERVE LEGAL PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF ANY GUARANTEED PARTY
TO BRING ANY ACTION OR PROCEEDING AGAINST EITHER GUARANTOR IN THE COURTS OF ANY
OTHER JURISDICTION.
13. Arbitration; Preservation and Limitation of Remedies. (a) Upon
----------------------------------------------------
demand of any party hereto, whether made before or after institution of any
judicial proceeding, any dispute, claim or controversy arising out of, connected
with or relating to this Guaranty or any other Credit Document ("Disputes")
between or among the Guarantors and the Guaranteed Parties, or any of them,
shall be resolved by binding arbitration as provided herein. Institution of a
judicial proceeding by a party does not waive the right of that party to demand
arbitration hereunder. Disputes may include, without limitation, tort claims,
counterclaims, claims brought as class actions, claims arising from documents
executed in the future, or claims arising out of or connected with the
transactions contemplated by this Guaranty, the Credit Agreement and the other
Credit Documents. Arbitration shall be conducted under and governed by the
Commercial Financial Disputes Arbitration Rules (the "Arbitration Rules") of the
American Arbitration Association (the "AAA"), as in effect from time to time,
and Title 9 of the U.S. Code, as amended. All arbitration hearings shall be
conducted in the city in which the principal office of the Administrative Agent
is located. 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. All
applicable statutes of limitation shall apply to any Dispute. A judgment upon
the award may be entered in any court having jurisdiction. The panel from which
all arbitrators are selected shall be comprised of licensed attorneys. The
single arbitrator selected for expedited procedure shall be a retired judge from
the highest court of general jurisdiction, state or federal, of the state where
the hearing will be conducted or, if such person is not available to serve, the
single arbitrator may be a licensed attorney. Notwithstanding the foregoing,
this arbitration provision does not apply to Disputes under or related to
Interest Rate Protection Agreements.
(b) Notwithstanding the preceding binding arbitration provisions, the
parties hereto agree to preserve, without diminution, certain remedies that any
party hereto may employ or exercise freely, independently or in connection with
an arbitration proceeding or after an arbitration action is brought. Any party
hereto 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 Collateral by exercising a power of sale
granted pursuant to any of the Credit Documents or under applicable law or by
judicial foreclosure and sale, 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 a receiver and filing an
involuntary bankruptcy proceeding; and (iv) when applicable, a judgment by
confession of
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judgment. Preservation of these remedies does not limit the power of an
arbitrator to grant similar remedies that may be requested by a party in a
Dispute. The parties hereto agree that no party shall have a remedy of punitive
or exemplary damages against any other party in any Dispute, and each party
hereby waives any right or claim to punitive or exemplary damages that it has
now or that may arise in the future in connection with any Dispute, whether such
Dispute is resolved by arbitration or judicially.
14. Notices. All notices and other communications provided for hereunder
-------
shall be given in the manner set forth in and subject to the provisions of
SECTION 11.5 of the Credit Agreement and shall be addressed (a) if to either
Guarantor, in care of the Borrower and at the Borrower's address for notices set
forth in SECTION 11.5 of the Credit Agreement, and (b) if to any Guaranteed
Party, at its address for notices set forth in SECTION 11.5 of the Credit
Agreement; or to such other address as any of the Persons listed above may
designate for itself by like notice to the other Persons listed above; and in
each case, with copies to such other Persons as may be specified under the
provisions of the Credit Agreement.
15. No Waiver. The rights and remedies of the Guaranteed Parties
---------
expressly set forth in this Guaranty and the other Credit Documents are
cumulative and in addition to, and not exclusive of, all other rights and
remedies available at law, in equity or otherwise. No failure or delay on the
part of any Guaranteed Party in exercising any right, power or privilege shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or privilege preclude any other or further exercise thereof or
the exercise of any other right, power or privilege or be construed to be a
waiver of any Default or Event of Default. No course of dealing between either
Guarantor and any Guaranteed Party or their agents or employees shall be
effective to amend, modify or discharge any provision of this Guaranty or any
other Credit Document or to constitute a waiver of any Default or Event of
Default. No notice to or demand upon either Guarantor in any case shall entitle
such Guarantor or the other Guarantor to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the right of any
Guaranteed Party to exercise any right or remedy or take any other or further
action in any circumstances without notice or demand.
16. Severability. To the extent any provision of this Guaranty is
------------
prohibited by or invalid under the applicable law of any jurisdiction, such
provision shall be ineffective only to the extent of such prohibition or
invalidity and only in such jurisdiction, without prohibiting or invalidating
such provision in any other jurisdiction or the remaining provisions of this
Guaranty in any jurisdiction.
17. Construction. The headings of the various sections and subsections of
------------
this Guaranty have been inserted for convenience only and shall not in any way
affect the meaning or construction of any of the provisions hereof. Unless the
context otherwise requires, words in the singular include the plural and words
in the plural include the singular.
18. Counterparts. This Guaranty may be executed in any number of
------------
counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to be
executed by their duly authorized officers as of the date first above written.
XXXXXXXX HOLDINGS, L.L.C.
By: ?????????
----------------------------------
Title: President
-------------------------------
BRIGHTVIEW COMMUNICATIONS GROUP, INC.
By: ??????????
----------------------------------
Title: Chief Financial Officer
-------------------------------
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA, as
Administrative Agent
?????????
By: ------------------------------
Title: SVP
------------------------------
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