Exhibit 10.2.3
GUARANTY
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GUARANTY dated as of December 5, 2000 (this "Guaranty") from CAPITAL ONE
FINANCIAL CORPORATION, a Delaware corporation (the "Guarantor"), in favor of
FIRST UNION DEVELOPMENT CORPORATION, a North Carolina corporation (the
"Lessor"); the various financial institutions and other institutional investors
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which are parties to the Participation Agreement (as defined below) from time to
time as purchasers of Tranche A Notes (subject to the definition of Tranche A
Note Purchasers in Appendix A to the Participation Agreement, individually, a
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"Tranche A Note Purchaser" and collectively, the "Tranche A Note Purchasers");
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the various banks and other lending institutions which are parties to the
Participation Agreement from time to time as Tranche B Lenders (subject to the
definition of Tranche B Lenders in Appendix A to the Participation Agreement,
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individually, a "Tranche B Lender" and collectively, the "Tranche B Lenders")
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(each Tranche A Note Purchaser and each Tranche B Lender may be referred to
individually as a "Primary Financing Party" and collectively as the "Primary
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Financing Parties"); FIRST UNION NATIONAL BANK, a national banking association,
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as the agent for the Primary Financing Parties and, respecting the Security
Documents, as the agent for the Secured Parties (in such capacity, the "Agent");
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and FIRST UNION NATIONAL BANK, as the escrow agent (the "Escrow Agent"). The
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Lessor, the Primary Financing Parties, the Agent and the Escrow Agent may be
referred to herein as the "Financing Parties."
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Reference is made to that certain Participation Agreement dated as of
December 5, 2000 (the "Participation Agreement"), among Capital One, F.S.B. and
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Capital One Bank, jointly and severally as the construction agent and the lessee
(the "Lessee"), the Guarantor, the Lessor, the Primary Financing Parties, the
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Agent and the Escrow Agent. Capitalized terms used in this Guaranty but not
otherwise defined shall have the meanings given to such terms in Appendix A to
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the Participation Agreement. The rules of usage as set forth in Appendix A to
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the Participation Agreement shall apply to this Guaranty.
PRELIMINARY STATEMENT
WHEREAS, Lessee wishes to enter into the transactions contemplated by the
Participation Agreement, the Lease and the other Operative Agreements relating
to the Property;
WHEREAS, the Guarantor owns all of the outstanding capital stock of Capital
One, F.S.B. and Capital One Bank, other than directors' qualifying shares;
WHEREAS, it is a condition precedent to the obligations of the Financing
Parties to consummate the transactions contemplated by the Participation
Agreement, the Lease and the other Operative Agreements that the Guarantor
execute and deliver this Guaranty; and
NOW THEREFORE, in order to induce the Financing Parties to enter into the
Operative Agreements, the Guarantor hereby agrees with the Financing Parties as
follows:
1. THE GUARANTY.
1.1 Guaranty of Payment and Performance.
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Subject to Section 1.7, the Guarantor hereby absolutely, unconditionally and
irrevocably guarantees to each Financing Party the prompt payment and
performance of the Company Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration or otherwise, including
without limitation, rent or interest accruing following the filing of any
bankruptcy or receivership action) or when such is otherwise to be performed;
provided, notwithstanding the foregoing, that the obligations of the Guarantor
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under this Section 1 shall not constitute a direct guaranty of the indebtedness
of the Lessor evidenced by the Notes but rather a guaranty of the Company
Obligations arising under the Operative Agreements. This Section 1 is a
guaranty of payment and performance and not of collection and is a continuing
guaranty and shall apply to all Company Obligations whenever arising. All
rights granted to the Financing Parties under this Section 1 shall be subject to
the provisions of Section 8.6 of the Participation Agreement.
1.2 Obligations Unconditional.
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The Guarantor agrees that the obligations of the Guarantor hereunder are
absolute, unconditional and irrevocable, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Operative Agreements, or
any other agreement or instrument referred to therein, or any substitution,
release or exchange of any other guarantee of or security for any of the Company
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety, guarantor or
co-obligor, it being the intent of this Section 1.2 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and all
circumstances. The Guarantor agrees that this Section 1 may be enforced by the
Financing Parties without the necessity at any time of resorting to or
exhausting any other security or collateral and without the necessity at any
time of having recourse to the Notes or any other of the Operative Agreements or
any collateral, if any, hereafter securing the Company Obligations or otherwise
and the Guarantor hereby waives the right to require the Financing Parties to
proceed against the Construction Agent, the Lessee or any other Person
(including without limitation a co-guarantor) or to require the Financing
Parties to pursue any other remedy or enforce any other right. The Guarantor
further agrees that it hereby waives any and all right of subrogation,
indemnity, reimbursement or contribution against the Lessee and the Construction
Agent or any other co-guarantor of the Company Obligations for amounts paid
under this Section 1 until such time as the Financing, accrued but unpaid
interest, and all other amounts owing under the Operative Agreements have been
paid in full and the Tranche B Commitments are terminated. Without limiting the
generality of the waiver provisions of this Section 1, the Guarantor hereby
waives any rights to require the Financing Parties to proceed against the
Construction Agent, the Lessee, any co-guarantor or any Collateral or to require
Lessor, the Agent or any other Financing Party to pursue any other remedy or
enforce any other right, including without limitation, any and all rights under
N.C. Gen. Stat. (S) 26-7 through 26-9. The Guarantor further agrees that
nothing contained herein shall prevent the Financing Parties from suing on any
Operative Agreement or foreclosing any security interest in or Lien on any
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collateral, if any, securing the Company Obligations or from exercising any
other rights available to it under any Operative Agreement, or any other
instrument of security, if any, and the exercise of any of the aforesaid rights
and the completion of any foreclosure proceedings shall not constitute a
discharge of the Guarantor's obligations hereunder; it being the purpose and
intent of the Guarantor that its obligations hereunder shall be absolute,
independent and unconditional under any and all circumstances; provided that any
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amounts due under this Section 1 which are paid to or for the benefit of any
Financing Party shall reduce the Company Obligations by a corresponding amount
(unless required to be rescinded at a later date). Neither the Guarantor's
obligations under this Section 1 nor any remedy for the enforcement thereof
shall be impaired, modified, changed or released in any manner whatsoever by an
impairment, modification, change, release or limitation of the liability of the
Construction Agent, the Lessee or any other Person (including without limitation
a co-guarantor) or by reason of the bankruptcy or insolvency of the Construction
Agent or the Lessee or any other Person (including without limitation a co-
guarantor) or by reason of the disallowance, under Section 502 of the Bankruptcy
Code or under any analogous provision of any other applicable Law, of all or any
portion of the Company Obligations. The Guarantor hereby waives the application
of Section 502(b)(6) of the Bankruptcy Code or any other analogous provision of
any other applicable Law. The Guarantor waives any and all notice of the
creation, renewal, extension or accrual of any of the Company Obligations and
notice of or proof of reliance by any Financing Party upon this Section 1 or
acceptance of this Section 1. The Company Obligations shall conclusively be
deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon this Section 1. All dealings between the
Construction Agent, the Lessee, any co-guarantor and the Guarantor, on the one
hand, and the Financing Parties, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon this
Section 1.
1.3 Modifications.
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The Guarantor agrees that (a) all or any part of the security now or
hereafter held for the Company Obligations, if any, may be exchanged,
compromised or surrendered from time to time; (b) no Financing Party shall have
any obligation to protect, perfect, secure or insure any such security
interests, liens or encumbrances now or hereafter held, if any, for the Company
Obligations or the properties subject thereto; (c) the time or place of payment
of the Company Obligations may be changed or extended, in whole or in part, to a
time certain or otherwise, and may be renewed or accelerated, in whole or in
part; (d) the Construction Agent, the Lessee and any other party (including any
co-guarantor) liable for payment under the Operative Agreements may be granted
indulgences generally; (e) any of the provisions of the Notes or any of the
other Operative Agreements may be modified, amended or waived; (f) any party
(including any co-guarantor) liable for the payment thereof may be granted
indulgences or be released; and (g) any deposit balance for the credit of the
Construction Agent, the Lessee or any other party (including any co-guarantor)
liable for the payment of the Company Obligations or liable upon any security
therefor may be released, in whole or in part, at, before or after the stated,
extended or accelerated maturity of the Company Obligations, all without notice
to or further assent by the Guarantor, which shall remain bound thereon,
notwithstanding any such exchange, compromise, surrender, extension, renewal,
acceleration, modification, indulgence or release.
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1.4 Waiver of Rights.
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The Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this Section 1 by any Financing
Party and of all extensions of credit or other Advances to the Construction
Agent and the Lessee by the Primary Financing Parties pursuant to the terms of
the Operative Agreements; (b) presentment and demand for payment or performance
of any of the Company Obligations; (c) protest and notice of dishonor or of
default with respect to the Company Obligations or with respect to any security
therefor; (d) notice of any Financing Party obtaining, amending, substituting
for, releasing, waiving or modifying any security interest, lien or encumbrance,
if any, hereafter securing the Company Obligations, or any Financing Party's
subordinating, compromising, discharging or releasing such security interests,
liens or encumbrances, if any; and (e) all other notices to which the Guarantor
might otherwise be entitled. Notwithstanding anything to the contrary herein,
the Guarantor's payments hereunder shall be due three (3) Business Days after
written demand by the Lessor or Agent for such payment (unless the Company
Obligations are automatically accelerated pursuant to the applicable provisions
of the Operative Agreements in which case the Guarantor's payments shall be
automatically due).
1.5 Reinstatement.
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The obligations of the Guarantor under this Section 1 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Company Obligations is rescinded or
must be otherwise restored by any Financing Party or any holder of any of the
Company Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and the Guarantor agrees that it will indemnify
each Financing Party on demand for all reasonable costs and expenses (including,
without limitation, reasonable fees of counsel) incurred by any Financing Party
in connection with such rescission or restoration, including without limitation
any such costs and expenses incurred in defending against any claim alleging
that such payment constituted a preference, fraudulent transfer or similar
payment under any bankruptcy, insolvency or similar law.
1.6 Remedies.
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The Guarantor agrees that, as between the Guarantor on the one hand and
each Financing Party on the other hand, the Company Obligations may be declared
to be forthwith due and payable as provided in the applicable provisions of the
Operative Agreements (and shall be deemed to have become automatically due and
payable in the circumstances provided therein) notwithstanding any stay,
injunction or other prohibition preventing such declaration (or preventing such
Company Obligations from becoming automatically due and payable) as against any
other Person and that, in the event of such declaration (or such Company
Obligations being deemed to have become automatically due and payable), such
Company Obligations (whether or not due and payable by any other Person) shall
forthwith become due and payable by the Guarantor in accordance with the
applicable provisions of the Operative Agreements.
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1.7 Limitation of Guaranty.
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Notwithstanding any provision to the contrary contained herein or in any of
the other Operative Agreements, to the extent the obligations of the Guarantor
shall be adjudicated to be invalid or unenforceable for any reason (including
without limitation because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of the Guarantor
hereunder shall be limited to the maximum amount that is permissible under
applicable law (whether federal or state and including without limitation the
Bankruptcy Code).
Subject to Section 1.5, upon the satisfaction of the Company Obligations in
full, regardless of the source of payment, the Guarantor's obligations hereunder
shall be deemed satisfied, discharged and terminated other than indemnifications
set forth herein that expressly survive.
1.8 Payment of Amounts to the Agent.
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Each Financing Party hereby instructs the Guarantor, and the Guarantor
hereby acknowledges and agrees, that until such time as the Financing is paid in
full, the Tranche B Commitments are terminated and the Liens evidenced by the
Security Agreement and the Mortgage Instruments have been released, any and all
Company Obligations, Rent (excluding Excepted Payments which shall be payable to
the Lessor or any other Person as appropriate) and any and all other amounts of
any kind or type under any of the Operative Agreements due and owing or payable
to any Person by any Credit Party shall be paid directly to the Agent (excluding
Excepted Payments which shall be payable to Lessor or any other Person as
appropriate) or as the Agent may direct from time to time for allocation and
distribution in accordance with the procedures set forth in Section 8.7 of the
Participation Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR.
The Guarantor represents and warrants to the Financing Parties that:
2.1. Organization; Power and Authority.
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Guarantor and each of its Subsidiaries: (a) is a corporation, partnership
or other entity duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization; (b) has all requisite corporate or
other power, and has all material governmental licenses, authorizations,
consents and approvals necessary to own its assets and carry on its business as
now being conducted; and (c) is qualified to do business and is in good standing
in all jurisdictions in which the nature of the business conducted by it makes
such qualification necessary and where failure so to qualify could (either
individually or in the aggregate) have a Material Adverse Effect.
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2.2. Authorization, etc.
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Guarantor has all necessary corporate power, authority and legal right to
execute, deliver and perform its obligations under each of the Operative
Agreements to which it is a party and to consummate the transactions
contemplated thereby; the execution, delivery and performance by Guarantor of
each of the Operative Agreements to which it is a party and the consummation of
the transactions contemplated thereby have been duly authorized by all necessary
corporate action on its part (including, without limitation, any required
shareholder approvals); and this Guaranty and each of the other Operative
Agreements to which it is a party have been duly and validly executed and
delivered by Guarantor and constitute its legal, valid and binding obligations,
enforceable against Guarantor in accordance with its terms, except as may be
limited by (a) bankruptcy, insolvency, receivership, conservatorship,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors' rights and (b) the application of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
2.3. Compliance with Laws, Other Instruments, etc.
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None of the execution and delivery of this Guaranty and the other Operative
Agreements to which Guarantor is a party, the consummation of the transactions
herein or therein contemplated or compliance with the terms and provisions
hereof or thereof will conflict with or result in a breach of, or require any
consent under, the charter or by-laws of Guarantor, or any applicable law or
regulation, or any order, writ, injunction or decree of any court or
governmental authority or agency, or any agreement or instrument to which
Guarantor or any of its Subsidiaries is a party or by which any of them or any
of their property is bound or to which any of them is subject, or constitute a
default under any such agreement or instrument, except for any such conflict,
breach or default that, or consent that if not obtained, could not (either
individually or in the aggregate) have a Material Adverse Effect and could not
subject any Financing Party to liability.
2.4. Governmental Authorizations, etc.
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No authorizations, approvals or consents of, and no filings or
registrations with, any governmental or regulatory authority or agency, or any
securities exchange, are necessary for the execution, delivery or performance by
Guarantor of this Guaranty or any of the other Operative Agreements to which
Guarantor is a party or for the consummation of any the transactions
contemplated hereby or thereby or for the legality, validity or enforceability
hereof or thereof.
2.5 Taxes.
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Guarantor and its Subsidiaries are members of an affiliated group of
corporations filing consolidated returns for Federal income tax purposes, of
which Guarantor is the "common parent" (within the meaning of Section 1504 of
the Code) of such group. Guarantor and its Subsidiaries have filed all Federal
income tax returns and all other material tax returns that are required to be
filed by them and have paid all taxes due pursuant to such returns or pursuant
to any assessment received by Guarantor or any of its Subsidiaries. The
charges, accruals and
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reserves on the books of Guarantor and its Subsidiaries in respect of taxes and
other governmental charges are, in the opinion of Guarantor, adequate and are in
accordance and in conformity with GAAP. Neither Guarantor nor any member of the
affiliated group has given or been requested to give a waiver of the statute of
limitations relating to the payment of any Federal, state, local and foreign
taxes or other impositions.
2.6 Litigation.
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Except as set forth on EXHIBIT K to the Participation Agreement, there are
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no actions, suits or proceedings pending or, to the Guarantor's knowledge,
threatened against the Guarantor in any court or before any Governmental
Authority (nor shall any order, judgment or decree have been issued or, to the
knowledge of the Guarantor, proposed to be issued by any Governmental Authority
against the Guarantor to set aside, restrain, enjoin or prevent the full
performance of any Operative Agreement or any transaction contemplated thereby)
that (i) concern the Property or the Guarantor's interest therein, (ii) question
the validity or enforceability of any Operative Agreement to which the Guarantor
is a party or the overall transaction described in the Operative Agreements to
which the Guarantor is a party or (iii) have or could reasonably be expected to
have a Material Adverse Effect (but only as of the Closing Date with respect to
a Material Adverse Effect of the type referred to in clause (a) of the
definition thereof).
3. DEFINITIONS, ETC.
3.1. Accounting Terms.
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All accounting terms not specifically defined herein shall have the
meanings given to them in accordance with GAAP.
3.2. Headings and References.
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Section and other headings are for reference only, and shall not affect the
interpretation or meaning of any provision of this Guaranty. Unless otherwise
provided, references to Sections, Schedules, and Exhibits shall be deemed
references to Sections, Schedules and Exhibits of this Guaranty.
4. MISCELLANEOUS.
4.1. Expenses, Etc.
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The Guarantor shall pay, or cause to be paid, upon demand, any Financing
Party's reasonable attorneys' and collection fees and all other costs and
expenses which may be incurred by any Financing Party in any suit or other
effort to enforce the Company Obligations, this Guaranty or both, by legal
proceedings or through any bankruptcy court, or otherwise. If the Guarantor
fails to pay any amount hereunder when due, the Guarantor shall pay interest, on
demand, on such amount at the Overdue Rate accrued from the date of such demand
to the date on which all such amounts due have been paid in full.
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4.2. Severability.
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The Financing Parties are relying and are entitled to rely upon each and
all of the provisions of this Guaranty; and accordingly, if any provision or
provisions of this Guaranty should be held to be invalid, inapplicable, illegal,
unenforceable or ineffective, then all other provisions shall continue in full
force and effect and this Guaranty shall be construed as if such invalid,
inapplicable, illegal, unenforceable or ineffective provision has never been
contained herein.
4.3. Notices.
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All notifications, notices, demands, requests and other communications
herein provided for or made pursuant hereto shall be in writing and delivered in
accordance with Section 12.2 of the Participation Agreement.
4.4. Successors and Assigns.
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Wherever the term "Lessor" or the term "Lessee" is used herein, those terms
shall mean, in addition to the parties described above, any assignees or
successors of either permitted by the Lease if, and to the extent, such assignee
or successor has properly been assigned, or succeeded to the rights and
obligations of the party in question. This Guaranty shall be binding upon the
Guarantor and its permitted successors and assigns and shall inure to the
benefit of the Financing Parties and their respective successors and assigns.
4.5. Amendments; No Waiver.
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No provision of this Guaranty can be changed, waived, discharged or
terminated except by an instrument in writing signed by the Guarantor, and
consented to in writing by the Majority Tranche A Note Purchasers, expressly
referring to the provision of this Guaranty to which such instrument relates.
No such waiver effected in accordance with this Section 4.5 shall extend to,
affect or impair any right with respect to the Company Obligations which is not
expressly dealt with therein. No course of dealing or delay or omission on the
part of any Financing Party exercising any right shall operate as a waiver
thereof or otherwise be prejudicial thereto.
4.6. Governing Law.
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THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED, INTERPRETED AND ENFORCED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW), EXCEPT TO THE
EXTENT THE LAWS OF THE STATE WHERE THE PROPERTY IS LOCATED ARE REQUIRED TO
APPLY.
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4.7. Submission to Jurisdiction; Venue.
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THE PROVISIONS OF SECTION 12.7 OF THE PARTICIPATION AGREEMENT RELATING TO
SUBMISSION TO JURISDICTION AND VENUE ARE HEREBY INCORPORATED BY REFERENCE
HEREIN, MUTATIS MUTANDIS.
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4.8. Effectiveness.
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All representations, warranties and covenants in this Guaranty shall become
effective at the time of the delivery hereof on the Closing Date.
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IN WITNESS WHEREOF, this Guaranty has been duly executed as of the date
first above written.
CAPITAL ONE FINANCIAL CORPORATION
By_________________________________
Title:
