EXHIBIT 10.28
GUARANTY AGREEMENT
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This GUARANTY AGREEMENT (this "Guaranty"), dated effective as of March
18, 2002, is executed and delivered by GLOBAL NETWORK ASSETS, LLC, a Delaware
limited liability company ("Guarantor"), to and in favor of GENERAL ELECTRIC
CAPITAL CORPORATION, as Agent for itself and for other Lessors from time to time
party to that certain Restated Lease Agreement as defined below (in such
capacity, together with its successors and assigns in such capacity, "GE
Capital").
W I T N E S S E T H:
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A. Savvis Communications Corporation, a Missouri corporation
("Savvis"), and the sole shareholder of Guarantor, has entered into that certain
Master Lease Agreement dated as of March 28, 2000 with GE Capital (the "Master
Lease Agreement").
B. Savvis and GE Capital have amended and restated the Master Lease
Agreement pursuant to that certain Amended and Restated Master Lease Agreement
dated as of March 18, 2002 (as such agreement may be amended, renewed, extended,
restated, replaced, substituted, supplemented or otherwise modified from time to
time, the "Restated Lease Agreement").
C. Guarantor, which is operated as part of a common enterprise with
Savvis, has directly and indirectly benefited and will directly and indirectly
benefit from the extension of credit evidenced and governed by the Restated
Lease Agreement and the other Credit Documents and execution and delivery of
this Guaranty is necessary and convenient to the conduct, promotion and
attainment of the business of Guarantor, including extension of maturity of
Savvis' obligations to GE Capital and the Lessors following defaults thereunder
and delay in interest payments.
D. The execution and delivery of this Guaranty is required by the terms
of, and is a condition to the effectiveness of, the Restated Lease Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Guarantor hereby agrees as follows:
1. Definitions. Unless otherwise defined in this Guaranty, all
capitalized terms used in this Guaranty shall have the meanings ascribed to such
terms in the Restated Lease Agreement.
2. Guaranty of Indebtedness, Liabilities and Obligations. Guarantor
hereby absolutely, unconditionally and irrevocably guarantees (a) payment and
performance to GE Capital and Lessors, as and when the same become due or
performable strictly in accordance with the terms and provisions of the Restated
Lease Agreement, whether at stated maturity, by acceleration or otherwise, of
any and all Obligations (as such term is defined in the Restated Lease
Agreement), which Obligations include, without limitation, (i) any and all
interest, penalties, fees and expenses (specifically including, but not limited
to, reasonable attorneys' fees and expenses) which Savvis
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may now or at any time hereafter owe to GE Capital or any Lessor (whether or not
such interest, penalties, fees and expenses were originally contracted with GE
Capital or any Lessor or with another or others and whether or not such
interest, penalties, fees and expenses are enforceable against Savvis) pursuant
to the Restated Lease Agreement or any other Credit Document plus (ii) the
principal amount of any and all indebtedness, liabilities and other obligations,
whether primary, absolute, secondary, direct, indirect, fixed, contingent,
liquidated, unliquidated, secured or unsecured, matured or unmatured, joint,
several or joint and several, due or to become due and whether arising by
agreement, note, discount, acceptance, overdraft or otherwise, which Savvis may
now or at any time hereafter owe to GE Capital or any Lessor (whether or not
such indebtedness, liabilities and obligations were originally contracted with
GE Capital or any Lessor or with another or others and whether or not such
indebtedness, liabilities or obligations are enforceable against Savvis)
pursuant to the Restated Lease Agreement or any other Credit Document and (b)
the faithful, prompt and complete compliance by Savvis and the other Credit
Parties with all terms, conditions, covenants, agreements and undertakings of
Savvis and the other Credit Parties (or any one or more of them) under the
Restated Lease Agreement or any other Credit Document (the Obligations and the
interest, penalties, fees, expenses, indebtedness, liabilities and obligations,
etc. referred to in clauses (a) and (b) preceding as to which payment,
performance and compliance are guaranteed pursuant to this Guaranty are
hereinafter individually and collectively called the "Guaranteed Obligations").
Notwithstanding anything to the contrary contained in this Guaranty, the
Guaranteed Obligations of Guarantor hereunder shall not exceed an aggregate
amount equal to the greatest amount that would not render Guarantor's
indebtedness, liabilities or obligations under this Guaranty subject to
avoidance under Sections 544, 548 or 550 of the Federal Bankruptcy Code or
subject to being set aside or annulled under any applicable state law relating
to fraud on creditors; provided, however, that, for purposes of the immediately
preceding clause, it shall be presumed that the Guaranteed Obligations of
Guarantor under this Guaranty do not equal or exceed any aggregate amount which
would render Guarantor's indebtedness, liabilities or obligations under this
Guaranty subject to being so avoided, set aside or annulled, and the burden of
proof to the contrary shall be on the party asserting to the contrary. Subject
to but without limiting the generality of the foregoing sentence, the provisions
of this Guaranty are severable and, in any legally binding action or proceeding
involving any state corporate law or any bankruptcy, insolvency or other laws of
general application relating to the enforcement of creditors' rights or general
principles of equity, if the indebtedness, liabilities or obligations of
Guarantor under this Guaranty would otherwise be held or determined to be void,
invalid or unenforceable on account of the amount of its indebtedness,
liabilities or obligations under this Guaranty, then, notwithstanding any other
provisions of this Guaranty to the contrary, the amount of such indebtedness,
liabilities or obligations shall, without any further action by Guarantor, GE
Capital, Lessors or any other Person, be automatically limited and reduced to
the greatest amount which is valid and enforceable as determined in such action
or proceeding.
Notwithstanding that Savvis may not be liable or obligated to GE
Capital or any Lessor for interest and/or reasonable attorneys' fees and
expenses on, or in connection with, the Guaranteed Obligations from and after
the Petition Date (as hereinafter defined) as a result of the provisions of the
federal bankruptcy laws or otherwise, the Guaranteed Obligations for which
Guarantor shall be liable and obligated under this Guaranty shall include (to
the extent permitted by law or a court of competent jurisdiction) interest
accruing on the Guaranteed Obligations at the highest rate provided
GUARANTY AGREEMENT (Network Assets, LLC) - Page 2
for in the Restated Lease Agreement from and after the date on which Savvis
files for protection under the federal bankruptcy laws or from and after the
date on which an involuntary proceeding is filed against Savvis under the
federal bankruptcy laws (herein collectively referred to as the "Petition Date")
and all attorneys' fees and expenses incurred by GE Capital or any Lessor from
and after the Petition Date in connection with the Guaranteed Obligations.
3. Continuing Guaranty of Payment. This Guaranty is and shall
be an absolute, unconditional, irrevocable and continuing guaranty of payment,
and not merely of collection, and from time to time or at any time the
Guaranteed Obligations may be increased, reduced or paid in full without
affecting the liability or obligation of Guarantor with respect to indebtedness,
liabilities and obligations of Savvis to GE Capital or any Lessor thereafter
incurred. Guarantor further agrees that this Guaranty shall continue to be
effective or be reinstated (if a release or discharge has occurred), as the case
may be, if at any time any payment (or any part thereof) to GE Capital or any
Lessor in respect of the Guaranteed Obligations is rescinded or must otherwise
be restored by GE Capital or any Lessor pursuant to any bankruptcy, insolvency,
reorganization, receivership or other debtor relief granted to Savvis or its
successors or assigns. In the event that GE Capital or any Lessor must rescind
or restore any payment received by GE Capital or any Lessor, respectively, in
satisfaction of the Guaranteed Obligations, as set forth herein, any prior
release or discharge from the terms of this Guaranty given to Guarantor by GE
Capital or such Lessor, respectively, shall be without effect, and this Guaranty
shall remain in full force and effect and/or shall be reinstated to be in full
force and effect (as applicable). It is the intention of GE Capital, Lessors and
Guarantor that Guarantor's liabilities and obligations hereunder shall not be
discharged except by the full and complete payment and performance of the
Guaranteed Obligations and then only to the extent of such payment and
performance. This Guaranty is independent of, and in addition and without
modification to and does not impair or in any way affect any other guaranty,
endorsement or other agreement executed in favor of GE Capital or any Lessor,
and this Guaranty and Guarantor's liabilities and obligations under this
Guaranty shall not be impaired or otherwise affected by the execution, delivery
or performance by Guarantor or any other Person of any other guaranty,
endorsement or other agreement.
4. Absolute Guaranty. Guarantor's liabilities and obligations under
this Guaranty shall be absolute and unconditional irrespective of, shall not be
released, impaired, limited, reduced, conditioned upon or otherwise affected by
and shall continue in full force and effect notwithstanding the occurrence of
any event (other than an event consisting of payment and performance of such
liabilities and obligations as provided in Paragraph 3 hereof) at any time or
from time to time, including, without limitation, any one or more of the
following events specified in clauses (a) through (o) of this Paragraph 4 below,
and neither GE Capital nor any Lessor shall be obligated or required to take or
to refrain from taking any of such actions or inactions specified below and
shall not have any liability, obligation or duty whatsoever with respect to such
actions or inactions, it being acknowledged and agreed by Guarantor that all of
such liabilities, obligations and duties (if any) of GE Capital or any Lessor
otherwise existing and all rights and remedies (if any) of Guarantor with
respect thereto (whether such liabilities, obligations, duties, rights or
remedies exist by virtue of agreement, common law, equity, statute or
otherwise), and each and every defense which, under principles of guaranty or
suretyship law, would otherwise operate to eliminate, impair, condition or
restrict any indebtedness, liability or obligation of Guarantor for payment of
the Guaranteed
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Obligations or otherwise under this Guaranty is hereby expressly waived by
Guarantor, including, without limitation, any defense consisting of or based
upon any one or more of the following matters specified in clauses (a) through
(o) of this Paragraph 4 below:
(a) the taking or accepting of any security or other guaranty
for any or all of the Guaranteed Obligations, whether heretofore,
concurrently herewith or hereafter;
(b) any failure to create or perfect or properly create or
perfect any lien, security interest or assignment intended as security,
or any release, surrender, exchange, substitution, subordination or
loss of any security or guaranty at any time existing in connection
with any or all of the Guaranteed Obligations for any reason; or any
suretyship defenses, including, without limitation, any impairment of
collateral;
(c) any partial or full release of the liability or obligation
of Guarantor under any other guaranty whether or not similar to this
Guaranty;
(d) the entering into, delivery of, modification of, amendment
to or waiver of compliance with the Restated Lease Agreement or any
Credit Document, or any agreement, document or instrument evidencing,
securing or otherwise affecting all or part of the Guaranteed
Obligations, without the notification of Guarantor, the right of such
notification being hereby specifically waived by Guarantor;
(e) the bankruptcy, insolvency, arrangement, adjustment,
composition, liquidation, disability, dissolution or lack of authority
(whether corporate, partnership or trust or relating to any other
entity or Person) of Savvis, Guarantor or any other Credit Party or
other Person at any time liable or obligated for the payment of any or
all of the Guaranteed Obligations, whether now existing or hereafter
arising;
(f) any increase, reduction, renewal, extension, amendment,
modification, repayment, refunding and/or rearrangement of the payment
or any other terms or provisions of any or all of the Guaranteed
Obligations at any time and from time to time, whether on one or more
occasions, either with or without notice to or consent of Guarantor, or
any adjustment, indulgence, forbearance or compromise that might be
granted or given by GE Capital or any Lessor to Savvis, Guarantor or
any Credit Party;
(g) any neglect, delay, omission, failure or refusal of GE
Capital or any Lessor (i) to exercise or properly or diligently
exercise any right or remedy with respect to any or all of the
Guaranteed Obligations or the collection thereof or any collateral,
security or guaranty therefor, whether under the Restated Lease
Agreement or any other Credit Document or otherwise, including, without
limitation, to ensure compliance with any term or provision of the
Restated Lease Agreement or any other Credit Document, (ii) to take or
prosecute or properly or diligently take or prosecute any action for
the collection of any or all of the Guaranteed Obligations against
Savvis, Guarantor or any other guarantor of any or all of the
Guaranteed Obligations and/or any other Credit Party or Person, (iii)
to foreclose or
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prosecute or properly or diligently foreclose or prosecute any action
in connection with any agreement, document or instrument or arrangement
evidencing, securing or otherwise affecting all or any part of the
Guaranteed Obligations, including, without limitation, any failure to
conduct a commercially reasonable foreclosure sale, or (iv) to mitigate
damages or take any other action to reduce, collect or enforce the
Guaranteed Obligations;
(h) any failure of GE Capital or any Lessor to give notice to
Savvis or Guarantor and/or any other Credit Party of, or obtain the
consent of Savvis or Guarantor and/or any other Credit Party with
respect to, (i) the incurrence of any of the Guaranteed Obligations,
(ii) the occurrence of any "Default" or "Event of Default" as such
terms are defined in the Restated Lease Agreement or any of the other
Credit Documents, (iii) demand, presentment, protest, nonpayment,
intention to accelerate, acceleration, lack of diligence or delay in
collection of all or any part of the Guaranteed Obligations or any
other matter, or the absence thereof, (iv) any renewal, extension or
assignment of the Guaranteed Obligations or any part thereof, (v) the
disposition or release of all or any part of any security for the
Guaranteed Obligations (whether or not such disposition is commercially
reasonable) or (vi) any other action taken or refrained from being
taken by GE Capital or any Lessor against Savvis or any other Credit
Party, it being agreed that (except as may be expressly provided in the
other Credit Documents) neither GE Capital nor any Lessor shall be
required to give Savvis, Guarantor or any other Credit Party any notice
of any kind or to obtain Savvis', Guarantor's or any other Credit
Party's consent under any circumstances whatsoever with respect to or
in connection with the Guaranteed Obligations;
(i) the unenforceability, illegality or uncollectibility of
all or any part of the Guaranteed Obligations against Savvis or any
other Credit Party by reason of (i) failure of consideration, (ii)
breach of warranty, (iii) fraud, (iv) the fact that the interest
contracted for, charged, collected or received in respect of the
Guaranteed Obligations exceeds the amount permitted by law, (v) the act
of creating the Guaranteed Obligations or any part thereof is ultra
xxxxx, (vi) the officers, directors, partners, trustees or
representatives creating the Guaranteed Obligations acted in excess of
their authority or lacked legal capacity, (vii) the Restated Lease
Agreement or any other Credit Document evidencing the Guaranteed
Obligations has been forged or otherwise is irregular or is not genuine
or authentic, (viii) expiration of the applicable statute of
limitations of the Guaranteed Obligations, (ix) failure to comply with
the statute of frauds, (x) lender liability, or (xi) accord and
satisfaction;
(j) any payment by Savvis or any other Credit Party to GE
Capital or any Lessor is held to constitute a preferential transfer or
a fraudulent conveyance or transfer under any applicable law, or for
any reason GE Capital or any Lessor is required to refund such payment
or pay such amount to Savvis or any other Credit Party or any other
Person;
(k) any merger, reorganization, consolidation or dissolution
of Savvis or any other Credit Party, any sale, lease or transfer of any
or all of the assets of Savvis or any other Credit Party or any change
in name, business, location, composition, structure or any change in
the
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shareholders, partners or members (whether by accession, secession,
death, dissolution, transfer of assets or otherwise) of Savvis or any
other Credit Party;
(l) any failure of GE Capital or any Credit Party to notify
Guarantor of (i) the acceptance of this Guaranty, (ii) the making of
loans by any Lessor in reliance on this Guaranty, (iii) the failure of
Savvis or any other Credit Party to make any payment due by Savvis or
any other Credit Party to GE Capital or any Lessor, or (iv) any
information regarding the financial condition or prospects of Savvis or
any other Credit Party;
(m) any existing or future offset, claim or defense of Savvis
or any other Credit Party against GE Capital or any Lessor or against
payment of all or any part of the Guaranteed Obligations, whether such
offset, claim or defense arises in connection with the Guaranteed
Obligations (or the transactions creating the Guaranteed Obligations)
or otherwise;
(n) any full or partial release of the liability of Savvis or
any other Credit Party, any guarantor of all or any part of the
Guaranteed Obligations or any other Person for all or any part of the
Guaranteed Obligations, it being acknowledged and agreed by Guarantor
that it may be required to pay the Guaranteed Obligations in full
without assistance or support, whether from Savvis or any other Credit
Party, any other guarantor or any other Person; or
(o) any other action taken or omitted to be taken with respect
to any of the Restated Lease Agreement or any other Credit Document,
the Guaranteed Obligations or the security and collateral therefor,
whether or not such action or omission prejudices Guarantor or
increases the likelihood that Guarantor will be required to pay all or
any part of the Guaranteed Obligations pursuant to the terms hereof.
The parties intend the preceding waiver of suretyship defenses to have the
effects described in Section 48 of the Restatement (Third) of the Law of
Suretyship and Guaranty. Without limiting the foregoing or Guarantor's liability
under this Guaranty, to the extent that GE Capital and Lessors (or any of them)
extended credit to Savvis and do not receive payments or benefits thereon in the
amounts and at the times required or provided by or in connection with the
Restated Lease Agreement or any other Credit Document, Guarantor is absolutely
liable to make such payments and to confer such benefits on Lessors on a timely
basis.
5. Representations and Warranties. In connection with this Guaranty,
Guarantor hereby represents and warrants to GE Capital and Lessors that:
(a) Guarantor is a wholly-owned Subsidiary of Savvis and
Savvis and the other Credit Party subsidiaries are members of an
affiliated and integrated group of entities and are engaged in related
businesses and supporting lines of business; Guarantor has received and
will receive a direct and indirect material benefit from the
transactions evidenced by and contemplated in the Restated Lease
Agreement and the other Credit Documents; this Guaranty is given by
Guarantor in furtherance of the direct and indirect business interests
and
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corporate purposes of Guarantor, and is necessary to the conduct,
promotion and attainment of the businesses of Savvis and Guarantor; and
the value of the consideration received and to be received by Guarantor
is believed by Guarantor to be reasonably worth at least as much as the
liability and obligation of Guarantor hereunder;
(b) The execution and delivery of this Guaranty and the
performance of and compliance with the terms hereof will not constitute
a default (or an event which with notice or lapse of time or both would
constitute a default) under, or result in the breach of, any material
contract, agreement or instrument to which Guarantor is a party or
which may be applicable to Guarantor or any of its assets;
(c) This Guaranty, when executed and delivered by Guarantor,
will constitute the legal, valid and binding obligation of Guarantor
enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or other laws of general application relating to
the enforcement of creditors' rights and general principles of equity;
(d) As of the date of this Guaranty, and after giving effect
to this Guaranty and the contingent obligation evidenced by this
Guaranty, but excluding the effect of the provisions of Paragraph 2
hereof which limit the Guaranteed Obligations to an amount that would
not render Guarantor's indebtedness, liabilities or obligations under
this Guaranty subject to avoidance, Guarantor is not, on either an
unconsolidated basis or a consolidated basis with Holdings'
consolidated Subsidiaries (including, without limitation, Savvis),
insolvent, as such term is used or defined in any applicable
bankruptcy, fraudulent conveyance, fraudulent transfer or similar law,
and Guarantor has and will have assets which, fairly valued, exceed its
indebtedness, liabilities and obligations; Guarantor is not executing
this Guaranty with any intention to hinder, delay or defraud any
present or future creditor or creditors of Guarantor; Guarantor is not
engaged in any business or transaction (including, without limitation,
the execution of this Guaranty) which will leave Guarantor with
unreasonably small capital or assets which are unreasonably small in
relation to the business or transactions engaged in by Guarantor, and
Guarantor does not intend to engage in any such business or
transaction; Guarantor does not intend to incur, nor does Guarantor
believe that it will incur, debts beyond Guarantor's ability to repay
such debts as they mature;
(e) All acts and conditions required to be performed and
satisfied prior to the creation and issuance of this Guaranty, and to
constitute this Guaranty as the legal, valid and binding obligation of
Guarantor in accordance with its terms, have been performed and
satisfied in due and strict compliance with all applicable laws;
(f) Guarantor is familiar with, and has independently received
books and records regarding, the financial condition of Savvis and is
familiar with the value of any and all collateral (if any) intended to
secure the Guaranteed Obligations; however, Guarantor is not relying on
such financial condition or any such collateral (if any) as an
inducement to enter into this Guaranty; Guarantor has adequate means to
obtain from Savvis, on a continuing
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basis, the information referred to in this clause (f) and is not
relying on GE Capital or any Lessor or any other party to provide any
such information at any time;
(g) Guarantor has not been induced to enter into this Guaranty
on the basis of a contemplation, belief, understanding or agreement
that any Person other than Guarantor will be liable to pay the
Guaranteed Obligations;
(h) Except for the execution of the Restated Lease Agreement,
neither GE Capital, any Lessor nor any other Person has made any
representation, warranty or statement to, or promise, covenant or
agreement with, Guarantor in order to induce Guarantor to execute this
Guaranty; and
(i) All representations and warranties in the Restated Lease
Agreement relating to the Guarantor are true and correct in all
respects as of the date hereof, except to the extent made only as of a
specific prior date, and on each date the representations and
warranties thereunder are restated pursuant to any of the Credit
Documents with the same force and effect as if such representations and
warranties had been made on and as of such date, all of which are
incorporated herein by reference.
6. Default. Upon the occurrence of an Event of Default, Guarantor
shall, on demand by GE Capital and without further notice of dishonor and
without notice of any kind (including, without limitation, notice of acceptance
by GE Capital or any Lessor of this Guaranty) having been given to Savvis,
Guarantor or any other Person previous to such demand, promptly (i.e., not later
than 1:00 p.m., New York, New York time, on the date of such demand or, if such
demand is made after 12:00 noon, on the next succeeding Business Day) pay, in
immediately available funds, the full unpaid amount of the Guaranteed
Obligations, or such lesser amount, if any, as may be specifically demanded by
GE Capital from time to time, to GE Capital at GE Capital's Principal Office
located in [10 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000] or at such other place as GE
Capital may specify to Guarantor in writing. If acceleration of the time for
payment of any amount payable by Savvis under or with respect to any of the
Guaranteed Obligations is stayed or otherwise delayed upon the insolvency,
bankruptcy or reorganization of Savvis, all such amounts otherwise subject to
acceleration under the terms of the Guaranteed Obligations shall nonetheless be
payable by Guarantor hereunder promptly on demand by GE Capital.
7. Cumulative Remedies; No Election. If Guarantor is or becomes liable
or obligated for the Guaranteed Obligations, by endorsement or otherwise, other
than under this Guaranty, such liability or obligation shall not be in any
manner impaired or affected hereby, and the rights and remedies of GE Capital or
any Lessor hereunder shall be cumulative of any and all other rights and
remedies that GE Capital or such Lessor may ever have against Guarantor. The
exercise by GE Capital or any Lessor of any right or remedy hereunder or under
any other agreement, document or instrument, or at law or in equity, shall not
preclude the concurrent or subsequent exercise of any other right or remedy.
Without in any way limiting the generality of the foregoing, it is specifically
understood and agreed that this Guaranty is given by Guarantor as an additional
guaranty or security to any and all other guaranties or security heretofore,
concurrently herewith or hereafter executed
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and/or delivered by Guarantor to or in favor of GE Capital or any Lessor
relating to the Guaranteed Obligations, and nothing herein shall ever be deemed
to in any way negate or replace any such other guaranties or security; provided,
however, that GE Capital and Lessors shall have all of their rights and remedies
under this Guaranty irrespective of anything to the contrary contained in any
such other guaranties or security. This Guaranty may be enforced from time to
time as often as occasion therefor may arise, and it is agreed and understood
that it shall not be necessary for GE Capital or any Lessors, in order to
enforce this Guaranty against Guarantor, first to exercise any rights or
remedies against Savvis or any other Person or institute suit or exhaust any
available rights or remedies against security in GE Capital's or any Lessor's
possession or under GE Capital's or any Lessor's control, or to resort to any
other sources or means of obtaining payment of the Guaranteed Obligations.
8. Joint and Several Obligation. Guarantor agrees that GE Capital and
Lessors, in their sole discretion, may (a) bring suit against all guarantors or
other Persons liable or obligated to GE Capital or any Lessor or against any one
or more of them, for interest, penalties, expenses, fees, indebtedness,
liabilities and obligations owed to GE Capital or any Lessor and apply any
amounts obtained by GE Capital or any Lessor in such a manner as GE Capital or
any Lessor may elect, (b) bring suit against all guarantors of the Guaranteed
Obligations jointly and severally or against any one or more of them, (c) settle
fully or in part with any one or more of such guarantors for such consideration
as GE Capital or any Lessor may deem proper, and (d) partially or fully release
one or more of such guarantors from liability under any guaranty agreement, and
that no such action shall impair the rights of GE Capital or any Lessor to
collect the Guaranteed Obligations (or the unpaid balance thereof) from other
guarantors (including, without limitation, Guarantor), or any of them, not so
sued, settled with or released.
9. Release of Collateral, etc. If all or any part of the Guaranteed
Obligations is at any time secured, Guarantor agrees that GE Capital or any
Lessor may, at any time and from time to time in its discretion and with or
without valuable consideration, allow substitution or withdrawal of collateral
or other security and release collateral or other security without impairing or
diminishing the liabilities or obligations of Guarantor hereunder. Guarantor
further agrees that, if Savvis or any other Person executes in favor of GE
Capital or any Lessor any collateral agreement, mortgage, deed of trust,
collateral assignment, security agreement or other security instrument, the
exercise by GE Capital or any Lessor of any right or remedy thereby conferred on
GE Capital or any Lessor shall be wholly discretionary with GE Capital or any
Lessor and that the exercise or failure to exercise any such right or remedy
shall in no way impair or diminish the obligation of Guarantor hereunder.
Guarantor further agrees that (except to the extent prohibited by applicable law
notwithstanding an agreement of the parties to the contrary) neither GE Capital
nor any Lessor shall be liable for its failure to use diligence or care in the
collection of the Guaranteed Obligations, in the creation or perfection of any
lien, security interest or assignment intended as security or in preserving the
liability of any Person liable or obligated on the Guaranteed Obligations, and
Guarantor hereby waives presentment for payment, notice of nonpayment, protest
and notice thereof, and diligence in bringing suit against any Person liable on
the Guaranteed Obligations or any part thereof.
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10. Binding Effect. This Guaranty is for the benefit of GE Capital and
Lessors and their successors and permitted assigns, and in the event of an
assignment by GE Capital or any Lessor or their successors or assigns of the
Guaranteed Obligations, or any part thereof, the rights and benefits hereunder,
to the extent applicable to the indebtedness, liabilities and obligations so
assigned, may be transferred with such indebtedness, liabilities and
obligations. This Guaranty is binding, not only upon Guarantor, but upon its
successors and assigns.
11. WAIVER OF SUBROGATION, CONTRIBUTION AND OTHER RIGHTS. UPON PAYMENT
BY GUARANTOR OF ANY SUMS IN RESPECT OF THE GUARANTEED OBLIGATIONS HEREUNDER
(INCLUDING, WITHOUT LIMITATION, ANY AMOUNTS ADVANCED TO SAVVIS BY GUARANTOR),
ALL RIGHTS OF GUARANTOR AGAINST SAVVIS OR ANY OTHER GUARANTOR OF THE GUARANTEED
OBLIGATIONS ARISING AS A RESULT THEREFROM BY WAY OF RIGHT OF SUBROGATION,
REIMBURSEMENT, EXONERATION, CONTRIBUTION, INDEMNIFICATION AND/OR OTHERWISE SHALL
IN ALL RESPECTS BE SUBORDINATE AND JUNIOR IN RIGHT OF PAYMENT AND ENFORCEMENT TO
THE PRIOR INDEFEASIBLE PAYMENT AND ENFORCEMENT IN FULL OF THE GUARANTEED
OBLIGATIONS. GUARANTOR SHALL NOT HAVE, AND HEREBY IRREVOCABLY WAIVES, ANY AND
ALL RIGHTS AND REMEDIES OF SUBROGATION, REIMBURSEMENT, EXONERATION,
CONTRIBUTION, INDEMNIFICATION AND/OR OTHERWISE AGAINST OR FROM SAVVIS UNLESS AND
UNTIL ALL OF THE GUARANTEED OBLIGATIONS HAVE BEEN IRREVOCABLY PAID AND PERFORMED
IN FULL. IN ADDITION TO THE FOREGOING, GUARANTOR HEREBY IRREVOCABLY WAIVES ANY
AND ALL CLAIMS OR OTHER RIGHTS AND REMEDIES IT MAY NOW HAVE OR HEREAFTER ACQUIRE
AGAINST GE CAPITAL, ANY LESSOR, SAVVIS OR ANY OTHER PERSON UNDER NEW YORK LAW
AND UNDER ANY OTHER STATUTE OF ANY STATE OR OTHER JURISDICTION REQUIRING
RECOURSE AGAINST THE PRIMARY OBLIGOR OR IMPOSING OTHER REQUIREMENTS AS A
CONDITION TO RECOURSE AGAINST A GUARANTOR IF AND TO THE EXTENT THAT THE SAME MAY
BE APPLICABLE TO THIS GUARANTY. Except as expressly otherwise provided in this
Xxxxxxxxx 00, Xxxxxxxxx shall have all rights of subrogation, reimbursement,
exoneration, contribution and indemnification that may exist under currently
applicable law.
12. Subordination of Indebtedness and Liens. In connection with this
Guaranty, Guarantor hereby agrees that:
(a) The payment of any and all principal of and interest on
the Subordinated Indebtedness (as defined below) shall in all respects
be subordinate and junior in right of payment and enforcement to the
prior payment and enforcement in full of all Guaranteed Obligations as
provided in this Paragraph 12. Except as otherwise expressly provided
in Section 6.2 of the Restated Lease Agreement, the Subordinated
Indebtedness shall not be payable, and no payment of principal,
interest or other amounts on account thereof, and no property or
guaranty of any nature to secure, guarantee or pay the Subordinated
Indebtedness
GUARANTY AGREEMENT (Network Assets, LLC) - Page 10
shall be made or given, directly or indirectly by or on behalf of any
Debtor (hereafter defined) or received, accepted, retained or applied
by Guarantor unless and until the Guaranteed Obligations shall have
been paid and performed in full. If any sums shall be paid to Guarantor
or any Affiliate of Guarantor by any Debtor or any other Person on
account of the Subordinated Indebtedness when such payment is not
permitted hereunder, such sums shall be held in trust by Guarantor for
the benefit of GE Capital and Lessors and shall forthwith be delivered
to GE Capital without affecting the liability of Guarantor under this
Guaranty and may be applied by GE Capital against the Guaranteed
Obligations in accordance with the Restated Lease Agreement. Upon the
request of GE Capital, Guarantor shall execute, deliver, and endorse to
GE Capital such documentation as GE Capital may request to perfect,
preserve and enforce its rights hereunder. For purposes of this
Guaranty and with respect to Guarantor, the term "Subordinated
Indebtedness" means all indebtedness, liabilities and obligations of
Savvis or any other Credit Party other than Guarantor (Savvis and such
Credit Parties are hereinafter called the "Debtors") to Guarantor,
whether such indebtedness, liabilities and obligations now exist or are
hereafter incurred or arise, or are primary, absolute, secondary,
direct, indirect, fixed, contingent, liquidated, unliquidated, secured
or unsecured, matured or unmatured, joint, several, joint and several,
or otherwise, and irrespective of whether such indebtedness,
liabilities or obligations are evidenced by a note, contract, open
account or otherwise, and irrespective of the Person or Persons in
whose favor such indebtedness, obligations or liabilities may, at their
inception, have been, or may hereafter be created, or the manner in
which they have been or may hereafter be acquired by Guarantor;
(b) Any and all Liens (including any judgment Liens) upon any
Debtor's property or assets securing payment of any Subordinated
Indebtedness (the "Subordinated Liens") shall be and remain inferior
and subordinate to any and all Liens upon any Debtor's assets securing
payment of the Guaranteed Obligations or any part thereof, regardless
of whether such Subordinated Liens presently exist or are hereafter
created or when such Subordinated Liens were created, perfected, filed
or recorded. Guarantor shall not exercise or enforce any creditors'
rights or remedies that it may have against any Debtor or foreclose,
repossess, sequester or otherwise institute any action or proceeding
(whether judicial or otherwise, including, without limitation, the
commencement of, or joinder in, any bankruptcy, insolvency,
reorganization, liquidation, receivership or other debtor relief law)
to enforce any Subordinated Lien on any property or assets of any
Debtor unless and until the Guaranteed Obligations shall have been
irrevocably paid and performed in full;
(c) In the event of any receivership, bankruptcy,
reorganization, rearrangement, debtor's relief or other insolvency
proceeding involving any Debtor as debtor, GE Capital shall have the
right to prove and vote any claim under the Subordinated Indebtedness
and to receive directly from the receiver, trustee or other court
custodian all dividends, distributions and payments made in respect of
the Subordinated Indebtedness until the Guaranteed Obligations have
been paid in full. GE Capital may apply any such dividends,
distributions and payments against the Guaranteed Obligations in
accordance with the Restated Lease Agreement;
GUARANTY AGREEMENT (Network Assets, LLC) - Page 11
(d) All promissory notes, accounts receivable, ledgers,
records or any other evidence of Subordinated Indebtedness, and all
mortgages, deeds of trust, security agreements, assignments and other
security documents evidencing the Subordinated Liens, shall contain a
specific written notice thereon that the indebtedness and Liens
evidenced thereby are subordinated under the terms of this Guaranty;
and
(e) The terms and provisions of this Paragraph 12 are given by
Guarantor as additional rights, remedies and benefits to any and all
other subordination agreements heretofore, concurrently herewith or
hereafter executed by Guarantor to or in favor of GE Capital or any
Lessor, and nothing in this Guaranty shall ever be deemed to in any way
negate or replace any other such previous, concurrent or subsequent
subordination agreements.
13. Right of Setoff. Guarantor hereby grants to GE Capital and each
Lessor a right of setoff upon any and all monies, securities or other property
of Guarantor, and the proceeds therefrom, now or hereafter held or received by
or in transit to GE Capital or any Lessor from or for the account of Guarantor,
whether for safekeeping, custody, pledge, transmission, collection or otherwise,
and also upon any and all deposits (general or special) and credits of
Guarantor, and any and all claims of Guarantor against GE Capital or any Lessor
at any time existing. The right of setoff granted pursuant to this Paragraph 13
shall be cumulative of and in addition to GE Capital's and each Lessor's common
law right of setoff.
14. Further Assurances. Upon the request of GE Capital or any Lessor,
Guarantor will, at any time and from time to time, duly execute and deliver to
GE Capital any and all such further agreements, documents and instruments, and
supply such additional information, as may be necessary or advisable, in the
reasonable opinion of GE Capital or any Lessor, to obtain the full benefits of
this Guaranty.
15. Invalid Provisions. If any provision of this Guaranty is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable, this Guaranty shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof, and the remaining provisions hereof shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom. Furthermore, in
lieu of such illegal, invalid or unenforceable provision there shall be added
automatically as a part of this Guaranty a provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible and be legal,
valid and enforceable. No provision herein or in any other Credit Document
evidencing the Guaranteed Obligations shall require the payment or permit the
collection of interest in excess of the maximum permitted by applicable law.
16. Modification in Writing. No modification, consent, amendment or
waiver of any provision of this Guaranty, and no consent to any departure by
Guarantor herefrom, shall be effective unless the same shall be in writing and
signed by a duly authorized officer of GE Capital and
GUARANTY AGREEMENT (Network Assets, LLC) - Page 12
Guarantor and then shall be effective only in the specific instance and for the
specific purpose for which given.
17. No Waiver, Etc. No notice to or demand on Guarantor or GE Capital
in any case shall entitle Guarantor or GE Capital, respectively, to any other or
further notice or demand in similar or other circumstances. No delay or omission
by GE Capital or any Lessor in exercising any right or remedy hereunder shall
impair any such right or remedy or be construed as a waiver thereof or any
acquiescence therein, and no single or partial exercise of any such right or
remedy shall preclude other or further exercise thereof or the exercise of any
other right or remedy hereunder.
18. Cumulative Rights. All rights and remedies of GE Capital and
Lessors hereunder are cumulative of each other and of every other right or
remedy which GE Capital or any Lessor may otherwise have at law or in equity or
under any other contract or document, and the exercise of one or more rights or
remedies shall not prejudice or impair the concurrent or subsequent exercise of
other rights or remedies.
19. Expenses. Guarantor agrees to pay on demand by GE Capital all
reasonable costs and expenses incurred by GE Capital or any Lessor in connection
with the enforcement of the terms and provisions of this Guaranty and, if and to
the extent that Savvis is obligated therefor in accordance with the Restated
Lease Agreement, any and all amendments, modifications, renewals, restatements
and/or supplements hereto from time to time, including, without limitation, the
reasonable fees and expenses of legal counsel to GE Capital. If Guarantor should
breach or fail to perform any provision of this Guaranty, Guarantor agrees to
pay to GE Capital all costs and expenses incurred by GE Capital or any Lessor in
the enforcement of this Guaranty from time to time, including, without
limitation, the reasonable fees and expenses of all legal counsel to GE Capital
and Lessors.
20. APPLICABLE LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES).
21. NO ORAL AGREEMENTS. THIS GUARANTY REPRESENTS THE FINAL AGREEMENT
BETWEEN GUARANTOR AND GE CAPITAL RELATING TO THE SUBJECT MATTER OF THIS GUARANTY
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
OR AMONG GUARANTOR AND GE CAPITAL OR ANY LESSOR. THIS GUARANTY SUPERSEDES ALL
PRIOR (IF ANY) ORAL AGREEMENTS, ORAL ARRANGEMENTS OR ORAL UNDERSTANDINGS
RELATING TO THE SUBJECT MATTER OF THIS GUARANTY, AND THIS GUARANTY SUPERSEDES
ALL PRIOR (IF ANY) WRITTEN AGREEMENTS RELATING TO THE SUBJECT MATTER OF THIS
GUARANTY IF AND TO THE EXTENT THAT SUCH PRIOR AGREEMENTS ARE INCONSISTENT WITH
THIS GUARANTY.
GUARANTY AGREEMENT (Network Assets, LLC) - Page 13
22. Notices. All notices and other communications provided for in this
Guaranty and the other Credit Documents to which Guarantor is a party shall be
given or made by telecopy or in writing and telecopied, mailed by certified mail
return receipt requested or delivered to the intended recipient at the "Address
for Notices" specified below its name on the signature pages hereof; or, as to
any party, at such other address as shall be designated by such party in a
notice to each other party given in accordance with this Paragraph 22. Except as
otherwise provided in this Guaranty, all such communications shall be deemed to
have been duly given when transmitted by telecopy or personally delivered or, in
the case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid; provided, however, that notices to GE Capital shall be deemed given
when received by GE Capital.
23. Survival. All representations, warranties, covenants and agreements
of Guarantor in this Guaranty shall survive the execution of this Guaranty.
24. Counterparts. This Guaranty may be executed in any number of
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute one and the same Guaranty.
25. Limitation on Interest. Notwithstanding anything to the contrary
contained or referred to in this Guaranty, none of the terms and provisions of
this Guaranty or the Restated Lease Agreement or any other Credit Document shall
ever be construed to create a contract or obligation to pay interest at a rate
in excess of the Maximum Rate allowed by law (the "Maximum Rate"), and neither
GE Capital nor any Lessor shall ever charge, receive, take, collect, reserve or
apply, as interest on the Obligations or the Guaranteed Obligations, any amount
in excess of the Maximum Rate. The parties hereto agree that any interest,
charge, fee, expense or other indebtedness, liability or obligation provided for
in this Guaranty, the Restated Lease Agreement or any other Credit Document
which constitutes interest under applicable law shall be, ipso facto and under
any and all circumstances, limited or reduced to an amount equal to the lesser
of (a) the amount of such interest, charge, fee, expense or other indebtedness,
liability or obligation that would be payable in the absence of this Paragraph
25 or (b) an amount, which when added to all other interest payable under this
Guaranty and the Restated Lease Agreement or any other Credit Document, equals
the Maximum Rate. If, notwithstanding the foregoing, GE Capital or any Lessor
ever contracts for, charges, receives, takes, collects, reserves or applies as
interest any amount in excess of the Maximum Rate, such amount which would be
deemed excessive interest shall be deemed a partial payment or prepayment of
principal of the Obligations and the Guaranteed Obligations and treated
hereunder as such, and if the Obligations and the Guaranteed Obligations, or
applicable portions thereof, are paid in full, any remaining excess shall
promptly be paid to Savvis, Guarantor or such other Person (as appropriate). In
determining whether the interest paid or payable, under any specific
contingency, exceeds the Maximum Rate, Guarantor, Savvis, GE Capital and Lessors
shall, to the maximum extent permitted by applicable law, (i) characterize any
nonprincipal payment as an expense, fee or premium rather than as interest, (ii)
exclude voluntary prepayments and the effects thereof, and (iii) amortize,
prorate, allocate and spread in equal or unequal parts the total amount of
interest throughout the entire contemplated term of the Obligations and the
Guaranteed Obligations, or applicable portions thereof, so that the interest
rate does not exceed the Maximum Rate at any
GUARANTY AGREEMENT (Network Assets, LLC) - Page 14
time during the term of the Obligations and the Guaranteed Obligations; provided
that, if the unpaid principal balance is paid and performed in full prior to the
end of the full contemplated term thereof, and if the interest received for the
actual period of existence thereof exceeds the Maximum Rate, GE Capital and
Lessors shall refund to Savvis, Guarantor or such other Person (as appropriate)
the amount of such excess and, in such event, neither GE Capital nor any Lessor
shall be subject to any penalties provided by any laws for contracting for,
charging, receiving, taking, collecting, receiving or applying interest in
excess of the Maximum Rate.
26. Irrevocable Nature of Guaranty. This Guaranty may not be revoked by
Guarantor; provided, however, in the event it shall be determined that Guarantor
shall have the right, in accordance with applicable law and notwithstanding its
express agreement herein to the contrary, to revoke this Guaranty, Guarantor may
deliver to GE Capital, at its address for notices set forth herein, written
notice of Guarantor's intention not to be liable hereunder for any Guaranteed
Obligations arising, created or incurred after GE Capital's receipt of such
notice, whereupon such notice shall be effective to the extent (but only to the
extent) provided hereinbelow as to Guarantor from and after (but not before) the
time when such notice is actually delivered to and received by and receipted for
in writing by GE Capital (the "Effective Revocation Time"); provided, further,
however, that such notice shall not be effective as to, and shall not in any way
restrict, limit, impair, release or otherwise affect, the indebtedness,
liabilities or obligations of Guarantor under this Guaranty with respect to (a)
any Guaranteed Obligations consisting of indebtedness, liabilities or
obligations under the Restated Lease Agreement or any other Credit Document,
whether incurred before or after the Effective Revocation Time (including,
without limitation, any loans, advances or extensions of credit at any time made
or created under the Restated Lease Agreement, whether or not agreed, committed
or contemplated to be made by GE Capital or any Lessor and whether or not
discretionary with GE Capital or any Lessor), (b) any Guaranteed Obligations
arising, created or incurred prior to the Effective Revocation Time, (c) any
amendments, modifications, renewals, extensions, restatements and/or supplements
to or of the indebtedness, liabilities or obligations referred to in clauses (a)
and (b) preceding, whether occurring before or after the Effective Revocation
Time, or (d) any interest or costs of collection with respect to any of the
indebtedness, liabilities or obligations referred to in clauses (a), (b) or (c)
preceding. Any revocation or attempted revocation of this Guaranty, whether in
whole or in part, shall not be effective except under limited circumstances (if
any), and to the limited extent, expressly provided in this Paragraph 26.
27. Reinstatement of Guaranteed Obligations. Notwithstanding anything
to the contrary contained in this Guaranty or any other Credit Document, if the
payment of any amount of principal or interest with respect to or any other
amount constituting the Guaranteed Obligations, or any portion thereof, is
rescinded, voided or must otherwise be refunded by GE Capital or any Lessor or
otherwise for any reason whatsoever, then the Guaranteed Obligations and all
terms and provisions of this Guaranty will be automatically reinstated and
become automatically effective and in full force and effect, all to the extent
that and as though such payment so rescinded, voided or otherwise refunded had
never been made.
28. Covenants and Agreements. Guarantor covenants and agrees that, as
long as the Guaranteed Obligations or any part thereof are outstanding
(including without limitation any Rent)
GUARANTY AGREEMENT (Network Assets, LLC) - Page 15
Guarantor will comply, strictly in accordance with the terms thereof, with all
covenants and agreements specifically applicable to it as set forth in any one
or more of the Restated Lease Agreement and the other Credit Documents, all of
which are hereby incorporated herein by reference as if stated verbatim herein.
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GUARANTY AGREEMENT (Network Assets, LLC) - Page 16
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of
the date first written above.
GUARANTOR:
----------
GLOBAL NETWORK ASSETS, LLC,
a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: President
Address for Notices:
--------------------
00000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy (which shall not constitute notice) to:
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
GUARANTY AGREEMENT (Network Assets, LLC) - Page 17
The undersigned has executed this Guaranty solely for the purpose of
confirming receipt of this Guaranty and reliance on this Guaranty by GE Capital
as of the date first written above.
GENERAL ELECTRIC CAPITAL
CORPORATION,
as Agent
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Address for Notices:
--------------------
00 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
GUARANTY AGREEMENT (Network Assets, LLC) - Page 18
