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GUARANTY
New York, New York November 2, 1999
FOR VALUE RECEIVED, and in consideration of loans made or to be made or
credit otherwise extended or to be extended by The Chase Manhattan Bank
("Chase"), each of the financial institutions (together with Chase collectively,
"Lenders") named in or which hereafter become a party to the Loan Agreement (as
hereinafter defined) and Chase as agent for Lenders (in such capacity "Agent")
to or for the account of Let's Talk Cellular & Wireless, Inc., Telephone
Warehouse, Inc., National Cellular, Incorporated, Cellular USA and Xxxxxxx
Enterprises, Inc. (each a "Borrower" and collectively, the "Borrowers") from
time to time and at any time and for other good and valuable consideration and
to induce Agent and Lenders, to make such loans or extensions of credit and to
make or grant such renewals, extensions, releases of collateral or
relinquishments of legal rights as Agent and Lenders may deem advisable, the
undersigned unconditionally guaranties to Agent for its own benefit and for the
ratable benefit of Lenders, their successors, and permitted assigns the prompt
payment when due (whether by acceleration or otherwise) of all present and
future obligations and liabilities of any and all kinds of Borrowers to Agent or
Lenders and of all instruments of any nature evidencing or relating to any such
obligations and liabilities upon which any Borrower is or may become liable to
Agent or Lenders arising under, out of, or in connection with that certain Loan
and Security Agreement by and among Borrowers, Lenders and Agent (as amended,
supplemented, modified or restated from time to time, the "Loan Agreement") or
any documents, instruments or agreements relating to or executed in connection
with the Loan Agreement or any documents, instruments or agreements referred to
therein (together with the Loan Agreement, the "Loan Documents") (all of which
are herein collectively referred to as the "Obligations"), and irrespective of
any instrument evidencing any of the Obligations or of any collateral therefor
or of the existence or extent of such collateral, and irrespective of the
allowability, allowance or disallowance of any or all of the Obligations in any
case commenced by or against any Borrower under Title 11, United States Code,
including, without limitation, obligations or indebtedness of any Borrower for
post-petition interest, fees, costs and charges that would have accrued or been
added to any Borrower's Obligations to Agent and the Lenders but for the
commencement of such case. Terms defined in the Loan Agreement shall have the
same meanings herein, unless otherwise herein expressly provided. In furtherance
of the foregoing, the undersigned xxxxxx agrees as follows:
1. NO IMPAIRMENT. Agent and Lenders may at any time and from time to
time, either before or after the maturity thereof, without notice to or further
consent of the undersigned, extend the time of payment of, exchange or surrender
any collateral for, renew or extend any of the Obligations or increase or
decrease the interest rate thereon, and may also make any agreement with any
Borrower or with any other party to or person liable on any of the Obligations,
or interested therein, for the extension, renewal, payment, compromise,
discharge or release thereof, in whole or in part, or for any modification of
the terms thereof or of any agreement between or among Agent, Lenders and any
Borrower or any such other party or person, or make any election of rights Agent
and Lenders may deem desirable under the United States Bankruptcy Code, as
amended, or any other federal or state bankruptcy, reorganization, moratorium or
insolvency law relating to or affecting the enforcement of creditors' rights
generally (any of the foregoing, an "Insolvency Law") without in any way
impairing or affecting this Guaranty. This instrument shall be effective
regardless of the subsequent incorporation, merger or consolidation of any
Borrower, or any change in the composition, nature,
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personnel or location of any Borrower and shall extend to any successor entity
to any Borrower, including a debtor in possession or the like under any
Insolvency Law.
2. GUARANTY ABSOLUTE. The undersigned guarantees that the Obligations
will be paid strictly in accordance with the terms of the Loan Agreement and/or
any other document, instrument or agreement creating or evidencing the
Obligations, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Borrower with respect thereto. The undersigned hereby knowingly accepts the full
range of risk encompassed within a contract of "continuing guaranty" which risk
includes the possibility that one or more Borrowers will contract additional
indebtedness for which the undersigned may be liable hereunder after such
Xxxxxxxx's financial condition or ability to pay its lawful debts when they fall
due has deteriorated, whether or not such Borrower has properly authorized
incurring such additional indebtedness. The undersigned acknowledges that (i) no
oral representations, including any representations to extend credit or provide
other financial accommodations to any Borrower, have been made by Agent or any
Lender to induce the undersigned to enter into this Guaranty and (ii) any
extension of credit to any Borrower shall be governed solely by the provisions
of the Loan Agreement. The liability of the undersigned under this Guaranty
shall be absolute and unconditional, in accordance with its terms, and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (a) any waiver,
indulgence, renewal, extension, amendment or modification of or addition,
consent or supplement to or deletion from or any other action or inaction under
or in respect of the Loan Documents or any other instruments or agreements
relating to the Obligations or any assignment or transfer of any thereof; (b)
any assignment or transfer of any Loan Document or other documents, instruments
or agreements relating to the Obligations; (c) any furnishing of any additional
security to Agent for the ratable benefit of the Lenders or its assignees or any
acceptance thereof or any release of any security by Agent or its assignees; (d)
any limitation on any party's liability or obligation under the Loan Documents
or any other documents, instruments or agreements relating to the Obligations;
(e) any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to any Borrower, or
any action taken with respect to this Guaranty by any trustee or receiver, or by
any court, in any such proceeding, whether or not the undersigned shall have
notice or knowledge of any of the foregoing; (f) any exchange, release or
non-perfection of any collateral, or any release, or amendment or waiver of or
consent to departure from any guaranty or security, for all or any of the
Obligations; or (g) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the undersigned, subject to Section 9
hereof. Any amounts due from the undersigned to Agent or any Lender shall bear
interest until such amounts are paid in full at the highest rate then applicable
to the Obligations of Borrowers to Lenders under the Loan Agreement. Obligations
include post-petition interest whether or not allowed or allowable.
3. WAIVERS. (a) This Guaranty is a guaranty of payment and not of
collection. Neither Agent nor any Lender shall be under any obligation to
institute suit, exercise rights or remedies or take any other action against any
Borrower or any other person liable with respect to any of the Obligations or
resort to any collateral security held by it to secure any of the Obligations as
a condition precedent to the undersigned being obligated to perform as agreed
herein and the undersigned hereby waives any and all rights which it may have by
statute or otherwise which would require Agent or any Lender to do any of the
foregoing. The undersigned further consents and agrees that neither Agent nor
Xxxxxxx shall be under any obligation to marshal any assets in favor of the
undersigned, or against or in payment of any or all of the Obligations.
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(b) The undersigned further waives (i) notice of the
acceptance of this Guaranty, of the making of any such loans or extensions of
credit, and of all notices and demands of any kind to which the undersigned may
be entitled, including, without limitation, notice of adverse change in any
Borrower's financial condition or of any other fact which might materially
increase the risk of the undersigned subject to this Agreement; and (ii)
presentment to or demand of payment from anyone whomsoever liable upon any of
the Obligations, protest, notices of presentment, non-payment or protest and
notice of any sale of collateral security or any default of any sort.
(c) Notwithstanding any payment or payments made by the
undersigned hereunder, or any setoff or application of funds of the undersigned
by Agent or any Lender, the undersigned shall not be entitled to be subrogated
to any of the rights of Agent or any Lender against any Borrower or against any
collateral or guarantee or right of offset held by Agent or any Lender for the
payment of the Obligations, nor shall the undersigned seek or be entitled to
seek any contribution or reimbursement from any Borrower in respect of payments
made by the undersigned hereunder, until all amounts owing to Agent and each
Lender by Borrowers on account of the Obligations are paid in full and the Loan
Agreement has been terminated. If, notwithstanding the foregoing, any amount
shall be paid to the undersigned on account of such subrogation rights at any
time when all of the Obligations shall not have been paid in full and the Loan
Agreement shall not have been terminated, such amount shall be held by the
undersigned in trust for Agent and Lenders, segregated from other funds of the
undersigned, and shall forthwith upon, and in any event within two (2) business
days of, receipt by the undersigned, be turned over to Agent for the ratable
benefit of the Lenders in the exact form received by the undersigned (duly
endorsed by the undersigned to Agent, if required), to be applied against the
Obligations, whether matured or unmatured, in such order as Agent and Lenders
may determine, subject to the provisions of the Loan Agreement. [Any and all
present and future debts and obligations of Borrowers to any of the undersigned
are hereby subordinated to the full payment and performance of, all present and
future debts and obligations of Borrowers to Agent and Lenders.
4. INTENTIONALLY OMITTED.
5. REPRESENTATIONS AND WARRANTIES. The undersigned hereby represents
and warrants (all of which representations and warranties shall survive until
all Obligations are indefeasibly satisfied in full and there remain no
outstanding commitments under the Loan Agreement), that:
(a) STATUS. The undersigned is a limited liability company
duly organized, validly existing and in good standing under the laws of
the State of Delaware and has full power, authority and legal right to
own its property and assets and to transact the business in which it is
engaged.
(b) AUTHORITY AND EXECUTION. The undersigned has full power,
authority and legal right to execute and deliver, and to perform its
obligations under, this Guaranty and has taken all necessary corporate
and legal action to authorize the execution, delivery and performance
of this Guaranty.
(c) LEGAL, VALID AND BINDING CHARACTER. This Guaranty
constitutes the legal, valid and binding obligation of the undersigned
enforceable in accordance with its terms, except as enforceability may
be limited by applicable Insolvency Law.
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(d) VIOLATIONS. The execution, delivery and performance of
this Guaranty will not violate any material requirement of law
applicable to the undersigned or any material contract, agreement or
instrument to which the undersigned is a party or by which the
undersigned or its property is bound or result in the creation or
imposition of any mortgage, lien or other encumbrance other than to
Agent for the ratable benefit of Lenders on any of the property or
assets of the undersigned pursuant to the provisions of any of the
foregoing.
(e) CONSENTS OR APPROVALS. No consent of any other Person
(including, without limitation, any creditor of the undersigned) and no
consent, license, permit, approval or authorization of, exemption by,
notice or report to, or registration, filing or declaration with, any
governmental authority is required in connection with the execution,
delivery, performance, validity or enforceability of this Guaranty.
(f) LITIGATION. No litigation, arbitration, investigation or
administrative proceeding of or before any court, arbitrator or
governmental authority, bureau or agency is currently pending or, to
the best knowledge of the undersigned, threatened (i) with respect to
this Guaranty or any of the transactions contemplated by this Guaranty
or (ii) against or affecting the undersigned, or any of its property or
assets, which, if adversely determined, would have a material adverse
effect on the business, operations, assets or condition, financial or
otherwise, of the undersigned.
(g) FINANCIAL BENEFIT. The undersigned has derived or expects
to derive a financial or other advantage from each and every loan,
advance or extension of credit made under the Loan Agreement or other
Obligation incurred by Borrowers to Agent and Lenders.
The foregoing representations and warranties shall be deemed to have
been made by the undersigned on the date of each borrowing by Borrowers under
the Loan Agreement on and as of such date of such borrowing as though made
hereunder on and as of such date.
6. ACCELERATION. (a) If any breach of any covenant or condition or
other event of default shall occur and be continuing under this Guaranty or an
Event of Default shall occur under the Loan Agreement or the undersigned should
at any time become insolvent, or make a general assignment, or if a proceeding
in or under any Insolvency Law shall be filed or commenced by, or in respect of,
the undersigned, or if a notice of any lien, levy, or assessment is filed of
record with respect to any assets of the undersigned by the United States or any
department, agency, or instrumentality thereof, or if any taxes or debts owing
at any time or times hereafter to any one of them becomes a lien or encumbrance
upon any assets of the undersigned in Agent's or any Lender's possession, or
otherwise, any and all Obligations shall for purposes hereof, at Agent's or any
Lender's option, be deemed due and payable without notice notwithstanding that
any such Obligation is not then due and payable by any Borrower.
(b) The undersigned will promptly notify Agent of any default
by the undersigned in the performance or observance of any term or condition of
any agreement to which the undersigned is a party with respect to obligations of
the undersigned in excess of $1,000,000 if the effect of such default is to
cause, or permit the holder of any obligation under such agreement to cause,
such
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obligation to become due prior to its stated maturity and, if such an event
occurs, Agent shall have the right to accelerate the undersigned's obligations
hereunder.
7. PAYMENTS FROM GUARANTOR. Agent, on behalf of Lenders, in its sole
and absolute discretion, with or without notice to the undersigned, may apply on
account of the Obligations any payment from the undersigned or any other
guarantor, or amounts realized from any security for the Obligations, or may
deposit any and all such amounts realized in a non-interest bearing cash
collateral deposit account to be maintained as security for the Obligations.
8. COSTS. The undersigned shall pay on demand, all fees and expenses
(including reasonable expenses for legal services of every kind) relating or
incidental to the enforcement of the rights of Agent or any Lender hereunder or
under any of the Obligations.
9. NO TERMINATION. This is a continuing irrevocable guaranty and shall
remain in full force and effect and be binding upon the undersigned, and the
undersigned's successors and assigns, until all of the Obligations have been
paid in full and the Loan Agreement has been terminated. If any of the present
or future Obligations are guarantied by persons, partnerships or corporations in
addition to the undersigned, the death, release or discharge in whole or in part
or the bankruptcy, merger, consolidation, incorporation, liquidation or
dissolution of one or more of them shall not discharge or affect the liabilities
of the undersigned under this Guaranty.
10. RECAPTURE. Anything in this Guaranty to the contrary
notwithstanding, if Agent or any Lender receives any payment or payments on
account of the liabilities guarantied hereby, which payment or payments or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver, or
any other party under any Insolvency Law, common law or equitable doctrine, then
to the extent of any sum not finally retained by Agent or any such Lender, the
undersigned's obligations to Agent and Lenders shall be reinstated and this
Guaranty shall remain in full force and effect (or be reinstated) until payment
shall have been made to Agent and Lenders, which payment shall be due on demand.
11. BOOKS AND RECORDS. The books and records of Agent showing the
account among Agent, Xxxxxxx and any Borrower or Borrowers shall be admissible
in evidence in any action or proceeding, shall be binding upon the undersigned
for the purpose of establishing the items therein set forth and shall constitute
prima facie proof thereof.
12. NO WAIVER. No failure on the part of Agent to exercise, and no
delay in exercising, any right, remedy or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by Agent of any right,
remedy or power hereunder preclude any other or future exercise of any other
legal right, remedy or power. Each and every right, remedy and power hereby
granted to Agent or allowed it by law or other agreement shall be cumulative and
not exclusive of any other, and may be exercised by Agent at any time and from
time to time.
13. WAIVER OF JURY TRIAL. THE UNDERSIGNED DOES HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED ON OR WITH RESPECT TO THIS GUARANTY OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR RELATING OR INCIDENTAL HERETO. THE UNDERSIGNED DOES
HEREBY CERTIFY THAT NO
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REPRESENTATIVE OR AGENT OF AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT AGENT OR ANY LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
14. GOVERNING LAW; JURISDICTION; AMENDMENTS. THIS INSTRUMENT CANNOT BE
CHANGED OR TERMINATED ORALLY, AND SHALL BE GOVERNED, CONSTRUED AND INTERPRETED
AS TO VALIDITY, ENFORCEMENT AND IN ALL OTHER RESPECTS IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. THE UNDERSIGNED EXPRESSLY CONSENTS TO THE
JURISDICTION AND VENUE OF THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF
NEW YORK, AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR ALL PURPOSES IN CONNECTION HEREWITH. ANY JUDICIAL PROCEEDING BY THE
UNDERSIGNED AGAINST AGENT AND/OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY
ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF, RELATED TO OR CONNECTED HEREWITH
SHALL BE BROUGHT ONLY IN THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF
NEW YORK OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK. THE UNDERSIGNED FURTHER CONSENTS THAT ANY SUMMONS, SUBPOENA OR OTHER
PROCESS OR PAPERS (INCLUDING, WITHOUT LIMITATION, ANY NOTICE OR MOTION OR OTHER
APPLICATION TO EITHER OF THE AFOREMENTIONED COURTS OR A JUDGE THEREOF) OR ANY
NOTICE IN CONNECTION WITH ANY PROCEEDINGS HEREUNDER, MAY BE SERVED INSIDE OR
OUTSIDE OF THE STATE OF NEW YORK OR THE SOUTHERN DISTRICT OF NEW YORK BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL SERVICE
PROVIDED A REASONABLE TIME FOR APPEARANCE IS PERMITTED, OR IN SUCH OTHER MANNER
AS MAY BE PERMISSIBLE UNDER THE RULES OF SAID COURTS. THE UNDERSIGNED WAIVES ANY
OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED HEREON AND SHALL
NOT ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE OR BASED UPON
FORUM NON CONVENIENS.
15. SEVERABILITY. To the extent permitted by applicable law, any
provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
16. AMENDMENTS, WAIVERS. No amendment or waiver of any provision of
this Guaranty nor consent to any departure by the undersigned therefrom shall in
any event be effective unless the same shall be in writing executed by the
undersigned, Agent and Xxxxxxx.
17. NOTICE. All notices, requests and demands to or upon the
undersigned, shall be in writing or by telecopy and shall be deemed to have been
duly given or made (a) when delivered, if by hand, or (b) three (3) days after
being deposited in the mail, postage prepaid, if by mail, in each event, to the
address set forth beneath the signature of the undersigned.
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18. SUCCESSORS. Agent or any Lender may, from time to time, without
notice to the undersigned, sell, assign, transfer or otherwise dispose of all or
any part of the Obligations and/or rights under this Guaranty. Without limiting
the generality of the foregoing, Agent or any Lender may assign, or grant
participations to, one or more banks, financial institutions or other entities
all or any part of any of the Obligations as set forth in the Loan Agreement. In
each such event, Agent, any Lender, its Affiliates and each and every immediate
and successive purchaser, assignee, transferee or holder of all or any part of
the Obligations shall have the right to enforce this Guaranty, by legal action
or otherwise, for its own benefit as fully as if such purchaser, assignee,
transferee or holder were herein by name specifically given such right. Agent or
any Lender shall have an unimpaired right to enforce this Guaranty for its
benefit with respect to that portion of the Obligations which Agent or any such
Lender has not disposed of, sold, assigned, or otherwise transferred.
19. LIMITATIONS. Notwithstanding anything to the contrary contained
herein, the liability of the undersigned hereunder shall in no event exceed the
sum of $1,000,000 exclusive of all fees, costs and expenses relating to the
enforcement, collection and prosecution of this Guaranty. Such limitation shall
not be affected by nor shall anything herein be deemed to be a limitation of the
amount of credit that may be extended to Borrowers or the number of transactions
with Borrowers or the nature or amount of the Obligations that may be incurred
by Borrowers.
IN WITNESS WHEREOF, this Guaranty has been executed by the undersigned
as of the date first above written.
HIG CAPITAL, LLC
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
Address:
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Telephone:
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Telecopier:
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