Exhibit 10.1.t
Guaranty and Suretyship Agreement
THIS GUARANTY AND SURETYSHIP AGREEMENT (this "Guaranty") is made
and entered into as of this 30 day of March, 2000, by KLT Inc. (the
"Guarantor"), with an address at 00000 Xxxx, Xxxxx 000, Xxxxxxxx Xxxx,
Xxxxxx 00000, in consideration of the extension of credit by PNC BANK,
NATIONAL ASSOCIATION (the "Bank"), with an address at One PNC Plaza,
000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, to STRATEGIC ENERGY,
L.L.C. (the "Borrower"), and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged.
1. Guaranty of Obligations. The Guarantor hereby guarantees,
and becomes surety for, the prompt payment and performance of all
loans, advances, debts, liabilities, obligations, covenants and duties
owing by the Borrower to the Bank or to any other direct or indirect
subsidiary of The PNC Financial Services Group, Inc., of any kind or
nature, present or future (including any interest accruing thereon
after maturity, or after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding
relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), arising under
or related to (x) that certain Letter Agreement governing a
$25,000,000 committed line of credit for the issuance of standby
letters of credit between the Borrower and the Bank, dated as of even
date herewith, (y) each letter of credit issued by the Bank on account
of the Borrower pursuant to such Letter Agreement, and (z) that
certain Reimbursement Agreement for Standby Letter(s) of Credit
executed by the Borrower in favor of the Bank, dated November 14,
2000, as amended on the date hereof, and any amendments, extensions,
renewals or increases of any of the foregoing and all costs and
expenses of the Bank incurred in the documentation, negotiation,
modification, enforcement, collection or otherwise in connection with
any of the foregoing, including reasonable attorneys' fees and
expenses (hereinafter referred to collectively as the "Obligations").
If the Borrower defaults under any such Obligations, the Guarantor
will pay the amount due to the Bank.
2. Nature of Guaranty; Waivers. This is a guaranty of payment
and not of collection and the Bank shall not be required, as a
condition of the Guarantor's liability, to make any demand upon or to
pursue any of its rights against the Borrower, or to pursue any rights
which may be available to it with respect to any other person who may
be liable for the payment of the Obligations.
This is an absolute, unconditional, irrevocable and continuing
guaranty and will remain in full force and effect until all of the
Obligations have been indefeasibly paid in full, and the Bank has
terminated this Guaranty. This Guaranty will remain in full force and
effect even if there is no principal balance outstanding under the
Obligations at a particular time or from time to time. This Guaranty
will not be affected by any surrender, exchange, acceptance,
compromise or release by the Bank of any other party, or any other
guaranty or any security held by it for any of the Obligations, by any
failure of the Bank to take any steps to perfect or maintain its lien
or security interest in or to preserve its rights to any security or
other collateral for any of the Obligations or any guaranty, or by any
irregularity, unenforceability or invalidity of any of the Obligations
or any part thereof or any security or other guaranty thereof. The
Guarantor's obligations hereunder shall not be affected, modified or
impaired by any counterclaim, set-off, deduction or defense based upon
any claim the Guarantor may have against the Borrower or the Bank,
except payment or performance of the Obligations.
Notice of acceptance of this Guaranty, notice of extensions of
credit to the Borrower from time to time, notice of default,
diligence, presentment, notice of dishonor, protest, demand for
payment, and any defense based upon the Bank's failure to comply with
the notice requirements of the applicable version of Uniform
Commercial Code 9-504 are hereby waived. The Guarantor waives all
defenses based on suretyship or impairment of collateral.
The Bank at any time and from time to time, without notice to or
the consent of the Guarantor, and without impairing or releasing,
discharging or modifying the Guarantor's liabilities hereunder, may
(a) change the manner, place, time or terms of payment or performance
of or interest rates on, or other terms relating to, any of the
Obligations; (b) renew, substitute, modify, amend or alter, or grant
consents or waivers relating to any of the Obligations, any other
guaranties, or any security for any Obligations or guaranties;
(c) apply any and all payments by whomever paid or however realized
including any proceeds of any collateral, to any Obligations of the
Borrower in such order, manner and amount as the Bank may determine in
its sole discretion; (d) settle, compromise or deal with any other
person, including the Borrower or the Guarantor, with respect to any
Obligations in such manner as the Bank deems appropriate in its sole
discretion; (e) substitute, exchange or release any security or
guaranty; or (f) take such actions and exercise such remedies
hereunder as provided herein.
3. Repayments or Recovery from the Bank. If any demand is made
at any time upon the Bank for the repayment or recovery of any amount
received by it in payment or on account of any of the Obligations and
if the Bank repays all or any part of such amount by reason of any
judgment, decree or order of any court or administrative body or by
reason of any settlement or compromise of any such demand, the
Guarantor will be and remain liable hereunder for the amount so repaid
or recovered to the same extent as if such amount had never been
received originally by the Bank. The provisions of this section will
be and remain effective notwithstanding any contrary action which may
have been taken by the Guarantor in reliance upon such payment, and
any such contrary action so taken will be without prejudice to the
Bank's rights hereunder and will be deemed to have been conditioned
upon such payment having become final and irrevocable.
4. Financial Statements. Unless compliance is waived in
writing by the Bank or until all of the Obligations have been paid in
full, the Guarantor will promptly submit to the Bank such information
relating to the Guarantor's affairs (including but not limited to
annual financial statements and tax returns for the Guarantor) as the
Bank may reasonably request.
5. Enforceability of Obligations. No modification, limitation
or discharge of the Obligations arising out of or by virtue of any
bankruptcy, reorganization or similar proceeding for relief of debtors
under federal or state law will affect, modify, limit or discharge the
Guarantor's liability in any manner whatsoever and this Guaranty will
remain and continue in full force and effect and will be enforceable
against the Guarantor to the same extent and with the same force and
effect as if any such proceeding had not been instituted. The
Guarantor waives all rights and benefits which might accrue to it by
reason of any such proceeding and will be liable to the full extent
hereunder, irrespective of any modification, limitation or discharge
of the liability of the Borrower that may result from any such
proceeding.
6. Events of Default. The occurrence of any of the following
shall be an "Event of Default": (i) any Event of Default (as defined
in any of the Obligations); (ii) any default under any of the
Obligations that does not have a defined set of "Events of Default"
and the lapse of any notice or cure period provided in such
Obligations with respect to such default; (iii) demand by the Bank
under any of the Obligations that have a demand feature; (iv) the
Guarantor's failure to perform any of its obligations hereunder; (v)
the falsity, inaccuracy or material breach by the Guarantor of any
written warranty, representation or statement made or furnished to the
Bank by or on behalf of the Guarantor; or (vi) the termination or
attempted termination of this Guaranty. Upon the occurrence of any
Event of Default, (a) the Guarantor shall pay to the Bank the amount
of the Obligations; or (b) on demand of the Bank, the Guarantor shall
immediately deposit with the Bank, in U.S. dollars, all amounts due or
to become due under the Obligations, and the Bank may at any time use
such funds to repay the Obligations; or (c) the Bank in its discretion
may exercise with respect to any collateral any one or more of the
rights and remedies provided a secured party under the applicable
version of the Uniform Commercial Code; or (d) the Bank in its
discretion may exercise from time to time any other rights and
remedies available to it at law, in equity or otherwise.
7. Costs. To the extent that the Bank incurs any costs or
expenses in protecting or enforcing its rights under the Obligations
or this Guaranty, including reasonable attorneys' fees and the costs
and expenses of litigation, such costs and expenses will be due on
demand, will be included in the Obligations and will bear interest
from the incurring or payment thereof at the Default Rate (as defined
in any of the Obligations).
8. Postponement of Subrogation. Until the Obligations are
indefeasibly paid in full, the Guarantor postpones and subordinates in
favor of the Bank any and all rights which the Guarantor may have to
(a) assert any claim against the Borrower based on subrogation rights
with respect to payments made hereunder, and (b) any realization on
any property of the Borrower, including participation in any
marshalling of the Borrower's assets.
9. Notices. All notices, demands, requests, consents, approvals
and other communications required or permitted hereunder must be in
writing and will be effective upon receipt. Such notices and other
communications may be hand-delivered, sent by facsimile transmission
with confirmation of delivery and a copy sent by first-class mail, or
sent by nationally recognized overnight courier service, to the
addresses for the Bank and the Guarantor set forth above or to such
other address as one may give to the other in writing for such
purpose.
10. Preservation of Rights. No delay or omission on the Bank's
part to exercise any right or power arising hereunder will impair any
such right or power or be considered a waiver of any such right or
power, nor will the Bank's action or inaction impair any such right or
power. The Bank's rights and remedies hereunder are cumulative and
not exclusive of any other rights or remedies which the Bank may have
under other agreements, at law or in equity. The Bank may proceed in
any order against the Borrower, the Guarantor or any other obligor of,
or collateral securing, the Obligations.
11. Illegality. In case any one or more of the provisions
contained in this Guaranty should be invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected
or impaired thereby.
12. Changes in Writing. No modification, amendment or waiver of
any provision of this Guaranty nor consent to any departure by the
Guarantor therefrom will be effective unless made in a writing signed
by the Bank, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. No
notice to or demand on the Guarantor in any case will entitle the
Guarantor to any other or further notice or demand in the same,
similar or other circumstance.
13. Entire Agreement. This Guaranty (including the documents
and instruments referred to herein) constitutes the entire agreement
and supersedes all other prior agreements and understandings, both
written and oral, between the Guarantor and the Bank with respect to
the subject matter hereof; provided, however, that this Guaranty is in
addition to, and not in substitution for, any other guarantees from
the Guarantor to the Bank.
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14. Successors and Assigns. This Guaranty will be binding upon
and inure to the benefit of the Guarantor and the Bank and their
respective heirs, executors, administrators, successors and assigns;
provided, however, that the Guarantor may not assign this Guaranty in
whole or in part without the Bank's prior written consent and the Bank
at any time may assign this Guaranty in whole or in part.
15. Interpretation. In this Guaranty, unless the Bank and the
Guarantor otherwise agree in writing, the singular includes the plural
and the plural the singular; references to statutes are to be
construed as including all statutory provisions consolidating,
amending or replacing the statute referred to; the word "or" shall be
deemed to include "and/or", the words "including", "includes" and
"include" shall be deemed to be followed by the words "without
limitation"; and references to sections or exhibits are to those of
this Guaranty unless otherwise indicated. Section headings in this
Guaranty are included for convenience of reference only and shall not
constitute a part of this Guaranty for any other purpose. If this
Guaranty is executed by more than one party as Guarantor, the
obligations of such persons or entities will be joint and several.
16. Indemnity. The Guarantor agrees to indemnify each of the
Bank, its directors, officers and employees and each legal entity, if
any, who controls the Bank (the "Indemnified Parties") and to hold
each Indemnified Party harmless from and against any and all claims,
damages, losses, liabilities and expenses (including all fees and
charges of internal or external counsel with whom any Indemnified
Party may consult and all expenses of litigation or preparation
therefor) which any Indemnified Party may incur or which may be
asserted against any Indemnified Party as a result of the execution of
or performance under this Guaranty; provided, however, that the
foregoing indemnity agreement shall not apply to claims, damages,
losses, liabilities and expenses solely attributable to an Indemnified
Party's gross negligence or willful misconduct. The indemnity
agreement contained in this Section shall survive the termination of
this Guaranty. The Guarantor may participate at its expense in the
defense of any such claim.
17. Governing Law and Jurisdiction. This Guaranty has been
delivered to and accepted by the Bank and will be deemed to be made in
the State where the Bank's office indicated above is located. This
Guaranty will be interpreted and the rights and liabilities of the
Bank and the Guarantor determined in accordance with the laws of the
STATE WHERE THE BANK'S OFFICE INDICATED ABOVE IS LOCATED, excluding
its conflict of laws rules. The Guarantor hereby irrevocably consents
to the exclusive jurisdiction of any state or federal court in the
county or judicial district where the Bank's office indicated above is
located; provided that nothing contained in this Guaranty will prevent
the Bank from bringing any action, enforcing any award or judgment or
exercising any rights against the Guarantor individually, against any
security or against any property of the Guarantor within any other
county, state or other foreign or domestic jurisdiction. The
Guarantor acknowledges and agrees that the venue provided above is the
most convenient forum for both the Bank and the Guarantor. The
Guarantor waives any objection to venue and any objection based on a
more convenient forum in any action instituted under this Guaranty.
18. Equal Credit Opportunity Act. If the Guarantor is not an
"applicant for credit" under Section 202.2 (e) of the Equal Credit
Opportunity Act of 1974 ("ECOA"), the Guarantor acknowledges that (i)
this Guaranty has been executed to provide credit support for the
Obligations, and (ii) the Guarantor was not required to execute this
Guaranty in violation of Section 202.7(d) of the ECOA.
19. Waiver of Jury Trial. The Guarantor irrevocably waives any
and all right the Guarantor may have to a trial by jury in any action,
proceeding or claim of any nature relating to this Guaranty, any
documents executed in connection with this Guaranty or any transaction
contemplated in any of such documents. The Guarantor acknowledges
that the foregoing waiver is knowing and voluntary.
The Guarantor acknowledges that it has read and understood all
the provisions of this Guaranty, including the waiver of jury trial,
and has been advised by counsel as necessary or appropriate.
WITNESS the due execution hereof as a document under seal, as of the
date first written above, with the intent to be legally bound hereby.
KLT INC.
Attest: /s/ Xxxx X. English By: /s/Xxxxxxx X. Xxxxx
(SEAL)
Print Name: Xxxx X. English Print Name: Xxxxxxx X. Xxxxx
Title: VP, General Counsel & Title: CEO & President
Corporate Secretary
