EXHIBIT 10.5
GUARANTY
THIS UNLIMITED GUARANTY OF PAYMENT (as defined in Section 15
hereof, ALONG WITH ALL OTHER DEFINED TERMS, this "Guaranty") is made and
effective as of October 20, 2000 by and among XXXX.XXX INC. (as more fully
defined below, "Guarantor") in favor of MCG FINANCE CORPORATION (as more fully
defined below, "Administrative Agent"), as Administrative Agent for the Lenders.
R E C I T A L S
WHEREAS, Borrowers, Administrative Agent and Lenders have
entered into (or substantially contemporaneously herewith are entering into) the
Credit Agreement and other Loan Documents pursuant to which Lenders are
extending credit to Borrowers on a senior secured basis; and
WHEREAS, Guarantor is the sole shareholder of XXXX.XXX HOLDING
CORP. and ACCESS ONE COMMUNICATIONS CORP., which entities are two of the
Borrowers under the Loan Documents; and
WHEREAS, to induce Administrative Agent and Lenders to perform
under the Loan Documents, Guarantor has agreed to guaranty the Liabilities upon
and subject to the terms of this Guaranty; and
WHEREAS, Guarantor has determined that Guarantor will derive
substantial direct and indirect benefits from the extension of credit under the
Loan Documents;
NOW, THEREFORE, for good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), and intending to be
legally bound hereby, Guarantor and Administrative Agent each hereby agrees as
follows:
1. Nature of Guaranty. Guarantor hereby unconditionally,
absolutely and completely guarantees to each Lender and to Administrative Agent
(for the benefit of each Lender) the full and timely payment when due of all
Liabilities and the full and timely performance of all other Obligations under
the Loan Documents. This Guaranty is a guaranty of payment and performance (and
not a guaranty of collection). This Guaranty is a continuing and irrevocable
guaranty until terminated in accordance with Section 3. All Liabilities shall be
conclusively presumed to have been created, incurred, extended, accepted and
continued by each Lender and Administrative Agent in reliance upon this
Guaranty. GUARANTOR HEREBY DESIGNATES ALL OF ITS OBLIGATIONS UNDER THIS
GUARANTY, INCLUDING, WITHOUT LIMITATION, ITS OBLIGATIONS TO PAY ALL LIABILITIES
AND TO PERFORM ALL OBLIGATIONS OF BORROWERS UNDER THE LOAN DOCUMENTS, AS
"DESIGNATED SENIOR DEBT" UNDER (AND AS DEFINED IN) THE SUBORDINATED NOTE
INDENTURES FOR ALL PURPOSES THEREUNDER.
2. Payments Under Guaranty. Upon any demand from time to time to
Guarantor by Administrative Agent during the occurrence of any Default (as
defined in the Credit Agreement),
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Guarantor will immediately pay and remit to Administrative Agent (for the
ratable benefit of Lenders) such of the Liabilities as Administrative Agent
determines to be then due under the Loan Documents (or that could be then due
but for a defense thereto by a Borrower). All payments under this Guaranty shall
be made by Guarantor in U.S. Dollars in immediately available funds and without
any condition, deduction, offset, netting, counterclaim or reservation of
rights.
3. Termination; Reinstatement. This Guaranty shall terminate and
be of no further force or effect upon the occurrence of both of the following
two events: (a) the indefeasible and unconditional payment in full of all of the
Liabilities, and (b) the termination of the Credit Agreement (in accordance with
its terms). Upon any such termination, Administrative Agent (at Guarantor's
request and expense) will execute and deliver to Guarantor (without any
representation, warranty, recourse, indemnification or liability of any kind
whatsoever) such documents as Guarantor may reasonably request and provide to
Administrative Agent to evidence such termination. Notwithstanding the
foregoing, if any payment made by or on behalf of any Borrower respecting any
Liability (or any portion of any such payment) at any time after the termination
of this Guaranty shall be required to be repaid or refunded in compliance with
any applicable state or federal law (including the United States Bankruptcy
Code) or any order of a court of competent jurisdiction, then (1) the
Liabilities shall be deemed not to have been indefeasibly paid in full to the
extent of such repayment or refund so made, and (2) the obligations of Guarantor
under this Guaranty shall be reinstated and continue in full force and effect
until the conditions for termination hereof have been satisfied, and (3) the
Person who repaid or refunded such payment (whether or not it is Administrative
Agent) shall be entitled to the full benefits of this Guaranty, notwithstanding
any prior termination of this Guaranty or the cancellation of any note or other
agreement evidencing the Liabilities.
4. Collateral for Obligations. Guarantor agrees that this
Guaranty (unless expressly otherwise agreed to by Administrative Agent in
writing) will be secured by all collateral and credit enhancements hereafter
pledged, collaterally assigned or otherwise encumbered to Administrative Agent
by Guarantor, whether or not such encumbrance specifically relates to the
Liabilities. At any time upon the request of Administrative Agent and at the
expense of Guarantor, BUT ONLY if and to the extent that any such requested
grant of collateral would not require the consent or approval of America Online,
Inc. ("AoL"), then Guarantor shall grant a security interest in, pledge of
and/or otherwise encumber any or all of its assets in favor of Administrative
Agent (for the benefit of Lenders) as collateral support for this Guaranty.
5. Subrogation and Subordination. Until this Guaranty is
terminated in accordance with Section 3, then Guarantor shall not assert or
pursue any claim, remedy or other right that Guarantor at any time may have
against any Borrower or other guarantor that arises from the existence, payment,
performance or enforcement of Guarantor's obligations under this Guaranty or any
other Loan Document, including any right of subrogation, reimbursement,
contribution, exoneration, or indemnification, or any right to participate in
any claim or remedy of Administrative Agent or any Lender against any Obligor,
or any right or claim to any collateral that Administrative Agent or any Lender
at any time may have an interest in, whether or not such claim, remedy or right
arises under contract, organic document, statute, common law or in equity.
Moreover, until this Guaranty is terminated in accordance with Section 3, then
except as otherwise expressly permitted hereunder, under the Credit Agreement or
by Administrative Agent in a separate writing, (a) any indebtedness or
obligation of any Borrower or other guarantor to or in favor of Guarantor
(whether evidenced by a promissory note, an inter-corporate ledger entry or
otherwise) is and shall be
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subordinate, junior and subject in right of payment to the prior payment to
Administrative Agent (unconditionally and indefeasibly) of all of the
Liabilities, and (b) no such indebtedness or obligation may be secured by any
pledge, lien or other encumbrance on or of any property of any Borrower or other
guarantor, and (c) Guarantor shall not take, receive, accept or demand from any
Borrower or other guarantor (by set-off, recoupment, litigation or in any other
manner) payment of the whole or any part of such indebtedness or obligation.
6. Enforcement; Waivers of Suretyship Defenses and Marshaling.
Guarantor agrees that Administrative Agent and/or Lenders may pursue, enforce,
preserve, waive and/or release any rights, claims and remedies against any
Borrower or other Obligors (including other guarantors) who are in any manner
liable on any Liability (and/or against any collateral security or credit
enhancement therefor) in any order or manner that Administrative Agent or
Lenders determine, and no such action shall affect in any manner the obligations
of Guarantor hereunder. Guarantor hereby waives any and all defenses and rights
of discharge based upon suretyship and/or impairment of collateral (including
any lack of attachment, perfection and/or enforcement with respect thereto or
any release thereof) that Guarantor at any time may have with respect to
Administrative Agent or any Lender or with respect to any of Guarantor's
obligations hereunder or under any other agreement that Guarantor at any time
may enter into with Administrative Agent or any Lender. No modification to and
no invalidity, irregularity or unenforceability (temporary or otherwise) of any
Liability against any Borrower or other Obligor (or any collateral security or
credit enhancement for any such Liability) shall be a defense to the performance
and enforcement of the obligations under this Guaranty, including (without
limitation) any failure of consideration, absence of authorization, breach of
warranty, payment, fraudulent conveyance, statute of frauds, statute of
limitations, accord and satisfaction, insolvency, bankruptcy and/or usury.
Guarantor agrees that, upon the occurrence of any Event of Default under the
Loan Documents, Administrative Agent shall have the immediate right to enforce
and realize upon (or forbear therefrom) any and all collateral security and
credit enhancements (including this Guaranty) granted under the Loan Documents
in any manner or order that Administrative Agent deems expedient or in its or
Lenders' best interest without regard to any equitable principles of marshaling
or otherwise.
7. Waivers of Notices. Guarantor waives notice of acceptance of
this Guaranty, notice of the incurrence of any of the Liabilities from time to
time, and notice of any extension, renewal, refunding, refinancing, increase,
modification and/or restructuring of any Liability from time to time. Guarantor
also waives notice of any default with respect to any Liability or otherwise
under the Loan Documents, and any notice of acceleration or other pursuit of any
remedies under the Loan Documents (other than against Guarantor).
8. Access to Information by Guarantor. Guarantor represents to
Administrative Agent and each Lender that Guarantor (a) has adequate means to
obtain from Borrowers on a continuing basis information concerning the Loan
Documents and the financial condition of Borrowers, and (b) is not relying upon
Administrative Agent or any Lender to provide any such information either now or
in the future.
9. Credit Report Authorizations. Guarantor hereby authorizes
Administrative Agent from time to time (at Administrative Agent's election)
(a) to obtain, review and use credit reports on Guarantor and/or any other
information relating to the creditworthiness of Guarantor from any credit
reporting agency or other third party and (b) to share such information with
each Lender
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and Administrative Agent's and each Lender's Affiliates, counsel, advisors and
agents for use in connection with the Loan Documents (but subject to any
restrictions and limitations on such use or disclosure as set forth in the Loan
Documents).
10. Additional Guarantor Covenants. Guarantor hereby further
covenants and agrees that, until this Guaranty is terminated as provided in
Section 3, Guarantor will comply with the following covenants (unless
Administrative Agent otherwise consents in writing, which consent will not be
unreasonably withheld, delayed or conditioned while no Default is occurring):
a. Disclosure Schedules. Attached hereto as Schedule 10 is a
set of Schedules describing the assets, operations and performance of Guarantor
and its Subsidiaries (other than Borrowers) that would be required under Article
3 of the Credit Agreement if Guarantor were a "Borrower" thereunder (and
Guarantor hereby represents that such Schedule is accurate and complete in all
material respects). From time to time upon the written request of Administrative
Agent (which request shall not be made more frequently than once every 12 months
unless an Event of Default exists), Guarantor will prepare and deliver to
Administrative Agent an updated chart of Guarantor's equity and debt
capitalization and an updated list of material contracts, intellectual property
(whether owned or licensed, but excluding mass market software), regulatory
licenses (if any), real estate (whether owned or leased), subsidiaries, material
litigation, and all on-going transactions or relationships with any Borrower.
For purposes of this Section, a "material contract" includes only those
agreements and contracts the loss or breach of which could have or cause a
Material Adverse Effect and "material litigation" includes only those legal
proceedings that, if adversely resolved, could have or cause a Material Adverse
Effect.
b. Other Information; Further Assurances. From time to time,
Guarantor shall provide Administrative Agent with any other information
(financial or otherwise) reasonably requested by Administrative Agent. From time
to time, upon request by Administrative Agent, Guarantor shall execute and
deliver (or shall cause to be executed and delivered) such supplements and
modifications to and/or replacements of this Guaranty and such further documents
as may be reasonably required to effectuate or implement the intentions of this
Guaranty (or to otherwise facilitate the performance hereof).
c. Compliance with Laws. Guarantor will comply in all material
respects with all material laws, rules, regulations and orders (federal, state,
local and otherwise) that are applicable to Guarantor.
d. Transactions with Borrowers. Except to the extent otherwise
expressly permitted hereunder, under the Credit Agreement or by Administrative
Agent in a separate writing, Guarantor will not (1) enter into any agreement or
engage in any transaction with any Borrower, or (2) receive or accept any
payment or any other funds (including any loans, dividends or distributions)
from any Borrower. Notwithstanding the foregoing, (i) as and to the extent
permitted under the Credit Agreement, Guarantor may make equity investments in
and unsecured, subordinated loans to any Borrower (in each such instance,
pursuant to documentation that is in form and substance reasonably acceptable to
Administrative Agent), and (ii) Guarantor may license to a Borrower on a
royalty-free basis intellectual property owned by Guarantor as of the Closing
Date (in each such instance, pursuant to documentation that is in form and
substance reasonably acceptable to Administrative Agent). FOR AVOIDANCE OF
DOUBT, Guarantor also shall be entitled to receive and
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accept payments and dividends from a Borrower if and to the extent (a) such
Borrower is expressly permitted to make such payments under the Credit Agreement
and (b) either (I) Guarantor at the time of such payment or dividend has less
than $15 million of cash, immediately available funds, and readily marketable
securities or (II) within 10 Business Days after receiving the proceeds of such
payment or dividend, Guarantor uses such funds to make a payment on an
obligation to an unrelated third party or returns such funds to such Borrower.
e. Liens; Asset Transfers. Guarantor shall not pledge, grant a
security interest in or otherwise encumber or permit any such encumbrance on any
of Guarantor's assets or property other than (1) in favor of Administrative
Agent (for the benefit of Lenders) or (2) purchase money security interests and
capital leases (subject to the same standards, but not limited in amounts, as is
set forth in Sections 5.2 and 5.5 of the Credit Agreement with respect to
purchase money security interests and capital leases by a Borrower), or (3)
encumbrances in favor of AoL as set forth in the AoL Investment Agreements, or
(4) encumbrances listed on Schedule 10 from time to time with the consent of
Administrative Agent (which consent will not be unreasonably withheld, delayed
or conditioned while no Default is occurring). Guarantor shall not sell,
transfer, lease, license on an exclusive basis (without retaining such
Borrower's and its assigns' absolute right to use on a royalty-free basis) or
otherwise dispose of ANY material asset other than (a) the stock and/or assets
of Compco, Inc. and (b) assets disposed of pursuant to transactions for
reasonably fair value received under the circumstances that do not involve (i)
any ownership interest in, any claim against or any indebtedness or obligation
of any Borrower or (ii) any asset that is used in connection with the operation
of any Borrower.
f. Dividends, Distributions and Redemptions. Guarantor shall
not declare or make any payment of any kind with respect to any equity interest
of Guarantor (including with respect to options and warrants therefor), whether
as a dividend, distribution, redemption, retirement, repurchase, return of
capital or otherwise, except (as and to the extent applicable) (i) payments to
and redemptions from a Borrower, and (ii) payments to and redemptions from
Administrative Agent or any Lender, and (iii) payments to and redemptions from
AoL in accordance with the AoL Investment Agreements, provided, however, that
any such payment to AoL with respect to Guarantor's repurchase of any warrants
or warrant shares shall be satisfied only through the issuance of additional
stock of Guarantor (and not through a payment of cash or issuance of a note)
unless either (I) no Default then exists under the Loan Documents or would
otherwise be caused by the payment of such amount to AoL in cash (including, any
Default under Section 4.1 on a pro forma basis after deducting such proposed
payment from OCF) or (II) Administrative Agent (with the approval of Lenders)
otherwise consents thereto, and (iv) redemptions from departing employees as and
to the extent approved by Guarantor's board of directors, and (v) such
redemptions as from time to time may be approved by Administrative Agent.
Notwithstanding the foregoing, Guarantor from time to time may redeem and
otherwise satisfy indebtedness (whether or not convertible into equity) at a
price not to exceed par.
g. Access. Guarantor (upon Administrative Agent's reasonable
request from time to time) will use commercially reasonable to provide
Administrative Agent and each Lender (and their representatives and agents) with
reasonable access during normal business hours to Guarantor's management
personnel, books and records, property and operations (including its financial
records), whether such property, books and records are in the possession of
Guarantor or are in the possession of a third party (including the possession of
Guarantor's Affiliates, accountants
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and legal counsel), provided however that such efforts to provide access under
this Section shall not require Guarantor to waive any legal privilege available
to Guarantor with respect to such information.
h. Limitation on Activities, Assets and Liabilities of Holding
Company. Guarantor shall not (i) engage in any activity other than owning,
managing and/or providing financing for Borrowers and wholly-owned subsidiaries,
or (ii) own, lease or license any assets other than cash, publicly traded
investments of investment-grade quality, other marketable securities, equity
interests in or unsecured, subordinated loans to a Borrower or a secured
guarantor under the Loan Documents, equity interests in and unsecured,
subordinated loans to (to the extent such interests and loans exist as of the
Closing Date or are otherwise permitted under the Credit Agreement) any other
wholly-owned subsidiary of Guarantor, assets owned and leased as of the Closing
Date (including intellectual property owned as of the Closing Date, so long as
such intellectual property is licensed to Borrowers on a perpetual, royalty
free, world-wide basis), and/or incidental assets, furniture, equipment and
leasehold interests (which incidental assets, in the aggregate, have a fair
value not in excess of $10 million), or (iii) create, establish or acquire any
subsidiaries (unless such subsidiaries become either (at the election of
Administrative Agent) a borrower or secured guarantor under and subject to the
terms and conditions of the Loan Documents).
i. Independence of Covenants. All covenants and defaults
contained in this Guaranty and the other Loan Documents shall be given
independent effect. If a particular action or condition is not permitted by any
covenant in this Guaranty, then the fact that such action or condition would be
permitted by an exception to (or would otherwise be within the limitations of)
another covenant in this Guaranty shall not avoid the occurrence or existence of
a Default if such action is taken or if such condition exists.
11. Indemnity and Expenses. Guarantor hereby agrees to indemnify
and hold Administrative Agent and each Lender harmless from and against any and
all claims, losses, and liabilities arising out of or resulting from any of the
following events (except to the extent such claims, losses or liabilities are
directly caused by the gross negligence, willful misconduct or fraud of
Administrative Agent or any Lender): (1) Guarantor's failure to perform or
otherwise observe any of the provisions hereof, or (2) Administrative Agent's
enforcement of any of the provisions hereof, or (3) Guarantor's gross
negligence, willful misconduct or fraud. Upon demand, Guarantor will pay
Administrative Agent the amount of any and all reasonable expenses, including
the reasonable fees and disbursements of its counsel and of any experts and
agents, that Administrative Agent or any Lender may incur in connection with any
of the matters described in the first sentence of this Section. If Guarantor
fails or refuses to pay Administrative Agent any amount due pursuant to this
Guaranty or to otherwise deliver to Administrative Agent any property required
to be delivered pursuant to this Guaranty, then such amount or, as appropriate,
the fair market value of such property will accrue interest until paid or
delivered at the rate then otherwise applicable to indebtedness under the Credit
Agreement (or the maximum amount permitted by applicable law, whichever is
less), and Guarantor will be obligated to pay such interest to Administrative
Agent.
12. Relationship to Other Guaranties. This Guaranty shall not
supersede any earlier guaranty of Guarantor in which Administrative Agent has an
interest unless expressly provided herein nor shall any later guaranty of
Guarantor in which Administrative Agent has an interest be construed to
supersede this Guaranty unless expressly provided therein.
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13. Entire Agreement; Parol Evidence. With the exception of the
Loan Documents and any other guaranty agreement of Guarantor, this Guaranty
contains the entire understanding and agreement between the parties hereto
concerning the subject matter hereof and supersedes any and all prior
understandings and agreements, whether oral or written between the parties
respecting the subject matter hereof. Guarantor represents and warrants that no
other oral or written representations, warranties, promises or agreements of any
kind or nature whatsoever have been made by Administrative Agent to Guarantor in
connection herewith, either directly or indirectly. No course of dealing, course
of performance or trade usage, and no parol evidence of any nature, shall be
used to supplement or modify any of the terms hereof, nor are there any
conditions to the full effectiveness of this Guaranty.
14. Successors and Assigns. This Guaranty shall inure to the
benefit of and may be enforced by Administrative Agent, its successors, assigns,
participants, pledgees and transferees.
15. Selected Relevant Definitions. For purposes of this Guaranty,
the following terms have the following corresponding meanings (otherwise, unless
the context otherwise requires, then terms used in this Guaranty have the
meanings provided in the Credit Agreement):
a. "Affiliate" of any Person means any other Person that
directly or indirectly controls, is controlled by or is under direct or indirect
common control with such Person. A Person shall be deemed to "control" another
Person if such first Person directly or indirectly possesses the power to direct
(or to cause the direction of or to materially influence) the management and
policies of the second Person, whether through the ownership of voting
securities, by contract or otherwise. Without limiting the generality of the
foregoing, each of the following Persons will be deemed to be an Affiliate of a
Person: (a) each Person who owns or controls 5% or more of any class or series
of any equity interest of such Person, and (b) each member, manager, partner,
director and/or senior executive officer of such Person or any Affiliate
thereof, and (c) any family member or other relative of such Person or any
Affiliate thereof, and (d) any trust of which any Person or Affiliate thereof is
either a trustee or beneficiary. Notwithstanding the foregoing, neither
Administrative Agent nor any Lender shall be deemed to be an Affiliate of
Guarantor or any Borrower.
b. "Borrowers" means, individually and collectively, XXXX.XXX
HOLDING CORP. and ACCESS ONE COMMUNICATIONS CORP. and the other Borrowers under
and as defined in the Credit Agreement, including any successors or assignees
thereof.
c. "Credit Agreement" means that certain Credit Facility
Agreement dated as of October 20, 2000 (as the same may be amended,
supplemented, restated, replaced, extended, increased and otherwise modified
from time to time) pursuant to which Lenders are extending credit to Borrowers
on a senior secured basis.
d. "Guarantor" or "Guarantors" means, individually and
collectively, each party that is at any time obligated under this Guaranty,
including any successor, permitted assignee, heir, executor, administrator or
personal representative thereof.
e. "Guaranty" means this Guaranty as may be amended, modified,
supplemented, replaced and substituted from time to time hereafter.
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f. "Lenders" means, individually and collectively, each Lender
under and as defined in the Credit Agreement, including any successor or
assignee thereof.
g. "Liability" or "Liabilities" means, individually and
collectively, each and all obligations of any Borrower and any other Obligor (as
defined in the Credit Agreement) to pay principal, interest, fees, costs,
indemnities, contribution obligations, protective advances and other amounts and
compensation from time to time due under the Loan Documents, whether such
obligation is direct or indirect, liquidated or unliquidated, absolute or
contingent, joint, several or joint and several, and whether now existing or
hereafter arising, due or to become due and whether or not originally contracted
with Administrative Agent or any Lender, including indebtedness acquired by
Administrative Agent or any Lender through whole or partial assignment of an
item that would be a Liability if created directly between a Borrower and
Administrative Agent or any Lender. Without limiting the foregoing, the
Liabilities shall include any and all increases, extensions, renewals,
refinancings and refundings of the Liabilities.
h. "Loan Documents" means the Credit Agreement and the other
Loan Documents (as defined in the Credit Agreement), as the same may be amended,
supplemented, restated, refinanced, replaced, extended and otherwise modified
from time to time.
i. "Subordinated Note Indentures" means each of (1) the
indenture dated as of September 9, 1997 between Guarantor and U.S. Bank Trust
National Association (formerly known as First Trust of New York, National
Association), as trustee, and (2) the indenture dated as of December 10, 1997
between Guarantor and U.S. Bank Trust National Association (formerly known as
First Trust of New York, National Association), as trustee, in each case, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
16. Miscellaneous.
a. Loan Document. This Guaranty is a Loan Document executed
pursuant to the Credit Agreement and (unless otherwise expressly indicated
herein) is to be construed, administered and applied in accordance with the
terms and provisions thereof.
b. Confidentiality of Information. Administrative Agent shall
maintain the confidentiality of all non-public information concerning Guarantor
delivered to Administrative Agent pursuant to the Loan Documents as and to the
extent such confidentiality would be required with respect thereto under Section
10.5 of the Credit Agreement if Guarantor were a "Borrower" thereunder.
c. Amendments. No amendment to or waiver of any provision of
this Guaranty, nor any consent to any departure by Guarantor herefrom, will be
effective unless such amendment, waiver or consent is in writing and signed by
Administrative Agent and Guarantor. Any such waiver or consent will be effective
only in the specific instance and for the specific purpose for which it is
given.
d. Notices. Any notice, request, consent, waiver or other
communication required or permitted under or in connection with this Guaranty
will be deemed satisfactorily given if it is in writing and is delivered either
personally to the addressee thereof, or by prepaid registered or
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certified U.S. mail (return receipt requested), or by a nationally recognized
commercial courier service with next-day delivery charges prepaid, or by
telegraph, or by facsimile (voice confirmed), or by any other reasonable means
of personal delivery to the party entitled thereto at its respective address set
forth below its signature to this Guaranty. If any party fails to insert an
address below, then such failure shall constitute a designation of its last
known address as the address for all notices and communications. Any party to
this Guaranty may change its address or facsimile number for notice purposes by
giving notice thereof to the other parties hereto in accordance with this
Section, provided that such change shall not be effective until 2 calendar days
after notice of such change. All such notices and other communications will be
deemed given and effective (a) if by mail, then upon actual receipt or 5
calendar days after mailing as provided above (whichever is earlier), or (b) if
by facsimile, then upon successful transmittal to such party's designated
number, or (c) if by telegraph, then upon actual receipt or 2 Business Days
after delivery to the telegraph company (whichever is earlier), or (d) if by
nationally recognized commercial courier service, then upon actual receipt or 2
Business Days after delivery to the courier service (whichever is earlier), (e)
or if otherwise delivered, then upon actual receipt.
e. Headings. The various headings used in this Guaranty are
for convenience of reference only, and shall not affect the meaning or
interpretation of this Guaranty or any provision hereof.
f. Governing Law. This Guaranty shall be governed by and
construed in accordance with the internal laws of the Commonwealth of Virginia
(exclusive of its choice of law rules).
g. Counterparts. This Guaranty may be executed in several
counterparts; each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
h. Severability. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law. If any provision of this Guaranty shall be prohibited by or
invalid under such law, then such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
i. Estoppel Certificates and Replacement Agreements. In
connection with any subsequent sale, assignment, participation or other transfer
or refinancing of the Liabilities (or any portion thereof) by Administrative
Agent or any Lender or at any other time requested by Administrative Agent,
Guarantor within 10 calendar days of receiving a request by Administrative Agent
will provide a certificate in form and substance reasonably satisfactory to
Administrative Agent confirming, among other items, the following information
(if and to the extent then true): (1) that this Guaranty remains in full force
and effect, and (2) that there exist no defaults under this Guaranty or under
any agreements between Guarantor and any other Obligor (or any circumstances
that with the passage of time or the giving of notice, or both, might constitute
a default hereunder or thereunder), and (3) that there exist no offsets,
counterclaims or other adjustments in favor of Guarantor under this Guaranty.
Moreover, in connection with any subsequent sale, assignment, participation or
other transfer or refinancing of the Loan Documents, the Liabilities or any
other indebtedness of any Borrower to Administrative Agent or any Lender (or any
portion thereof),
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Guarantor, if requested by Administrative Agent, will concurrently execute in
favor of the transferee or refinancing lender a guaranty substantially similar
in form and substance to this Guaranty.
j. WAIVER OF LIABILITY. Guarantor (a) agrees that neither
Administrative Agent nor any lender (nor any of their directors, officers,
employees or agents) shall have any liability to guarantor (whether sounding in
tort, contract or otherwise) for losses or costs suffered or incurred by
guarantor in connection with or in any way related to the transactions
contemplated or the relationship established by any Loan Document, or any act,
omission or event occurring in connection herewith or therewith, except for
foreseeable actual losses resulting directly from Administrative Agent's or such
lender's own gross negligence, willful misconduct or fraud (including the gross
negligence, willful misconduct or fraud of its directors, officers and
employees) and (b) waives, releases and agrees not to xxx upon any claim against
Administrative Agent or any Lender (or their directors, officers, employees or
agents) whether sounding in tort, contract or otherwise, except for claims for
foreseeable actual losses resulting directly from administrative agent's or such
lender's own gross negligence, willful misconduct or fraud (including the gross
negligence, willful misconduct or fraud of its directors, officers and
employees). Moreover, whether or not such damages are related to a claim that is
subject to the waiver effected above and whether or not such waiver is
effective, neither Administrative Agent nor any lender (nor their directors,
officers, employees or agents) shall have any liability with respect to (and
Guarantor hereby waives, releases and agrees not to xxx upon any claim for) any
special, indirect, consequential, punitive or non-foreseeable damages suffered
by guarantor in connection with or in any way related to the transactions
contemplated or the relationship established by any Loan Document, or any act,
omission or event occurring in connection herewith or therewith.
k. FORUM SELECTION; CONSENT TO JURISDICTION. Any litigation in
connection with or in any way related to any loan document, or any course of
conduct, course of dealing, statements (whether verbal or written), actions or
inactions of Administrative Agent, any Lender or Guarantor will be brought and
maintained exclusively in the courts of the Commonwealth of Virginia or in the
United States District Court for the Eastern District of Virginia; provided,
however, that any suit seeking enforcement against guarantor, any Collateral or
any other property may also be brought (at Administrative Agent's and Lenders'
option) in the courts of any other jurisdiction where such Collateral or other
property may be found or where Administrative Agent or any lender may otherwise
obtain personal jurisdiction over Guarantor. Guarantor hereby expressly and
irrevocably submits to the jurisdiction of the courts of the Commonwealth of
Virginia and of the United States District Court for the Eastern District of
Virginia for the purpose of any such litigation as set forth above and
irrevocably agrees to be bound by any final and non-appealable judgment rendered
thereby in connection with such litigation. Guarantor further irrevocably
consents to the service of process by registered or certified mail, postage
prepaid, or by personal service within or outside the Commonwealth of Virginia.
Guarantor hereby expressly and irrevocably waives, to the fullest extent
permitted by law, any objection which it may have or hereafter may have to the
laying of venue of any such litigation brought in any such court referred to
above and any claim that any such litigation has been brought in an inconvenient
forum. To the extent that Guarantor has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether through
service or notice, attachment prior to
10
judgment, attachment in aid of execution or otherwise) with respect to itself or
its property, then guarantor hereby irrevocably waives such immunity in respect
of its obligations under this guaranty.
l. WAIVER OF JURY TRIAL. Administrative Agent, each Lender and
Guarantor each hereby knowingly, voluntarily and intentionally waives (to the
maximum extent not prohibited by applicable law) any rights it may have to a
trial by jury in respect of any litigation (whether as claim, counter-claim,
affirmative defense or otherwise) in connection with or in any way related to
any of the Loan Documents, or any course of conduct, course of dealing,
statements (whether verbal or written), actions or inactions of Administrative
Agent, any Lender or Guarantor. Guarantor acknowledges and agrees (a) that it
has received full and sufficient consideration for this provision (and each
other provision of each other Loan Document to which it is a party), and (b)
that it has been advised by legal counsel in connection herewith, and (c) that
this provision is a material inducement for Administrative Agent and each Lender
entering into the Loan Documents and funding Advances thereunder.
[BALANCE OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, this UNLIMITED GUARANTY has been duly executed by
the parties hereto (through their authorized officers, if appropriate), as an
instrument under seal (whether or not any such seal is actually physically
attached hereto), as of the day and year first above written.
ATTEST: XXXX.XXX INC., Guarantor
By:
--------------------------------------- --------------------------------
Name: Name:
---------------------------------- ------------------------------
Title: Title:
--------------------------------- -----------------------------
[SEAL] Address: 0000 Xxxxx 000
Xxx Xxxx, XX 00000
Attn: General Counsel
Facsimile: (000) 000-0000
WITNESS: MCG FINANCE CORPORATION (AS
ADMINISTRATIVE AGENT)
By:
--------------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxxx
Title: COO and CFO
Address: 0000 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
