GENERAL CONTINUING GUARANTY
Exhibit 10.4
EXECUTION COPY
This GENERAL CONTINUING GUARANTY (this “Guaranty”), dated as of December 21, 2010, is
executed and delivered by XXXX INTERMEDIATE HOLDING CORPORATION, a Delaware corporation
(“Parent Guarantor”), and each signatory listed on the signature pages hereof (such
signatories, together with Parent Guarantor and each other Person (as defined in the Credit
Agreement) that becomes a guarantor after the Closing Date (as defined in the Credit Agreement)
pursuant to Section 5.11 of the Credit Agreement, are collectively referred to as the
“Guarantors” and individually as a “Guarantor”), in favor of XXXXX FARGO CAPITAL
FINANCE, LLC, a Delaware limited liability company, as agent for the Lender Group and the Bank
Product Providers (in such capacity, together with its successors and assigns, if any, in such
capacity, “Agent”), in light of the following:
WHEREAS, American Commercial Lines Inc., a Delaware corporation, each Person from time to time
party thereto as borrowers (the “Borrowers”), the lenders identified on the signature pages
thereto and Agent are, contemporaneously herewith, entering into that certain Credit Agreement of
even date herewith (as amended, restated, modified, renewed or extended from time to time, the
“Credit Agreement”);
WHEREAS, each Guarantor is an Affiliate of Borrowers and, as such, will benefit by virtue of
the financial accommodations extended to Borrowers by the Lender Group; and
WHEREAS, in order to induce the Lender Group to enter into the Credit Agreement and the other
Loan Documents and to extend the loans and other financial accommodations to Borrowers pursuant to
the Credit Agreement, and in consideration thereof, and in consideration of any loans or other
financial accommodations heretofore or hereafter extended by the below defined Lender Group to
Borrowers pursuant to the Loan Documents, each Guarantor has agreed to guaranty the Guarantied
Obligations.
NOW, THEREFORE, in consideration of the foregoing, each Guarantor hereby agrees as follows:
1. Definitions and Construction.
(a) Definitions. Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to them in the Credit Agreement. The following terms, as used in this
Guaranty, shall have the following meanings:
“Agent” has the meaning set forth in the preamble to this Guaranty.
“Borrowers” has the meaning set forth in the recitals to this Guaranty.
“Credit Agreement” has the meaning set forth in the recitals to this Guaranty.
“Xxxx Collateral” has the meaning set forth in Section 2(b) of this Guaranty.
“Guarantied Obligations” means all of the Obligations (including any Bank Product
Obligations) now or hereafter existing, whether for principal, interest (including any interest
that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or
allowable in whole or in part as a claim in any such Insolvency Proceeding), fees (including the
fees provided for in the Fee Letter), Lender Group Expenses (including any fees or expenses that
accrue after the commencement of an Insolvency Proceeding, regardless of whether allowed or
allowable in whole or in part as a claim in any such Insolvency Proceeding), or otherwise, and any
and all expenses (including reasonable counsel fees and expenses) incurred by the Agent, the
Lenders or the Issuing Lender (or any of them) in enforcing any rights under this Guaranty.
Without limiting the generality of the foregoing, Guarantied Obligations shall include all amounts
that constitute part of the Guarantied Obligations and would be owed by the Borrowers to the Agent,
the Lenders
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or the Issuing Lender but for the fact that they are unenforceable or not allowable, including
due to the existence of a bankruptcy, reorganization, other Insolvency Proceeding or similar
proceeding involving Borrowers or any other guarantor.
“Guarantors” has the meaning set forth in the preamble to this Guaranty.
“Guaranty” has the meaning set forth in the preamble to this Guaranty.
“Parent Guarantor” has the meaning set forth in the preamble to this Guaranty.
“Voidable Transfer” has the meaning set forth in Section 9 of this Guaranty.
(b) Construction. Unless the context of this Guaranty clearly requires otherwise,
references to the plural include the singular, references to the singular include the plural, the
part includes the whole, the terms “includes” and “including” are not limiting, and the term “or”
has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.”
The words “hereof,” “herein,” “hereby,” “hereunder,” and other similar terms in this Guaranty refer
to this Guaranty as a whole and not to any particular provision of this Guaranty. Section,
subsection, clause, schedule, and exhibit references herein are to this Guaranty unless otherwise
specified. Any reference in this Guaranty to any agreement, instrument, or document shall include
all alterations, amendments, changes, extensions, modifications, renewals, replacements,
substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any
restrictions on such alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements set forth herein). Neither this Guaranty
nor any uncertainty or ambiguity herein shall be construed or resolved against the Lender Group or
Borrowers, whether under any rule of construction or otherwise. On the contrary, this Guaranty has
been reviewed by all parties and shall be construed and interpreted according to the ordinary
meaning of the words used so as to accomplish fairly the purposes and intentions of each Guarantor
and Agent. Any reference herein to the satisfaction, repayment, or payment in full of the
Guarantied Obligations shall mean the repayment in full (or, (a) in the case of contingent
reimbursement obligations with respect to Letters of Credit, providing Letter of Credit
Collateralization, and (b) in the case of obligations with respect to Bank Products (other than
Hedge Obligations), providing Bank Product Collateralization) of all of the Guarantied Obligations
(including the payment of any termination amount then applicable (or which would or could become
applicable as a result of the repayment of the other Guarantied Obligations) under Hedge Agreements
provided by Hedge Providers) other than (i) unasserted contingent indemnification Guarantied
Obligations, (ii) any Bank Product Obligations (other than Hedge Obligations) that, at such time,
are allowed by the applicable Bank Product Provider to remain outstanding without being required to
be repaid or cash collateralized, and (iii) any Hedge Obligations that, at such time, are allowed
by the applicable Hedge Provider to remain outstanding without being required to be repaid. Any
reference herein to any Person shall be construed to include such Person’s successors and assigns.
Any requirement of a writing contained herein shall be satisfied by the transmission of a Record
and any Record transmitted shall constitute a representation and warranty as to the accuracy and
completeness of the information contained therein. The captions and headings are for convenience
of reference only and shall not affect the construction of this Guaranty.
2. Guarantied Obligations. (a) Each Guarantor, jointly and severally, hereby
irrevocably and unconditionally guaranties to Agent, for the benefit of the Lender Group and the
Bank Product Providers, as and for its own debt, until the final payment in full thereof has been
made, (a) the due and punctual payment of the Guarantied Obligations, when and as the same shall
become due and payable, whether at maturity, pursuant to a mandatory prepayment requirement, by
acceleration, or otherwise; it being the intent of each Guarantor that the guaranty set forth
herein shall be a guaranty of payment and not a guaranty of collection; and (b) the punctual and
faithful performance, keeping, observance, and fulfillment by Borrowers of all of the agreements,
conditions, covenants, and obligations of Borrowers contained in the Credit Agreement and under
each of the other Loan Documents.
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(b) Notwithstanding any other provision of this Guaranty to the contrary, the liability of
Parent Guarantor hereunder shall be non-recourse, and neither Agent, any Bank Product Provider nor
any member of the Lender Group shall be entitled to seek and may not seek a deficiency judgment
against Parent Guarantor, nor shall any of the Guarantied Obligations be satisfied out of any of
the assets of the Parent Guarantor other than the capital stock of Parent owned by Parent Guarantor
(the “Xxxx Collateral”), nor shall any judgment against Parent Guarantor be enforced
against Parent Guarantor other than in connection with a foreclosure upon or otherwise taking
action against such Xxxx Collateral.
3. Continuing Guaranty. This Guaranty includes Guarantied Obligations arising under
successive transactions continuing, compromising, extending, increasing, modifying, releasing, or
renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and
conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied
Obligations have been satisfied in whole or in part. To the maximum extent permitted by law, each
Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied Obligations. If
such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges
and agrees that (a) no such revocation shall be effective until written notice thereof has been
received by Agent, (b) no such revocation shall apply to any Guarantied Obligations in existence on
the date of receipt by Agent of such written notice (including any subsequent continuation,
extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and
conditions thereof), (c) no such revocation shall apply to any Guarantied Obligations made or
created after such date to the extent made or created pursuant to a legally binding commitment of
the Lender Group in existence on the date of such revocation, (d) no payment by any Guarantor,
Borrowers, or from any other source, prior to the date of Agent’s receipt of written notice of such
revocation shall reduce the maximum obligation of each Guarantor hereunder, and (e) any payment by
Borrowers or from any source other than the Guarantors subsequent to the date of such revocation
shall first be applied to that portion of the Guarantied Obligations as to which the revocation is
effective and which are not, therefore, guarantied hereunder, and to the extent so applied shall
not reduce the maximum obligation of the Guarantors hereunder.
4. Performance Under this Guaranty. In the event that any Borrower fails to make any
payment of any Guarantied Obligations, on or prior to the due date thereof, or if any Borrower
shall fail to perform, keep, observe, or fulfill any other obligation referred to in clause
(b) of Section 2 of this Guaranty in the manner provided in the Credit Agreement or any
other Loan Document, each Guarantor immediately shall cause, as applicable, such payment in respect
of the Guarantied Obligations to be made or such obligation to be performed, kept, observed, or
fulfilled.
5. Primary Obligations. This Guaranty is a primary and original obligation of each
Guarantor, is not merely the creation of a surety relationship, and is an absolute, unconditional,
and continuing guaranty of payment and performance which shall remain in full force and effect
without respect to future changes in conditions. Each Guarantor hereby agrees that it is directly,
jointly and severally with any other guarantor of the Guarantied Obligations, liable to Agent, for
the benefit of the Lender Group and the Bank Product Providers, that the obligations of each
Guarantor hereunder are independent of the obligations of Borrowers or any other guarantor, and
that a separate action may be brought against each Guarantor, whether such action is brought
against Borrowers or any other guarantor or whether Borrowers or any other guarantor is joined in
such action. Each Guarantor hereby agrees that its liability hereunder shall be immediate and
shall not be contingent upon the exercise or enforcement by any member of the Lender Group or any
Bank Product Provider of whatever remedies they may have against Borrowers or any other guarantor,
or the enforcement of any lien or realization upon any security by any member of the Lender Group
or any Bank Product Provider. Each Guarantor hereby agrees that any release which may be given by
Agent to Borrowers or any other guarantor, or with respect to any property or asset subject to a
Lien, shall not release such Guarantor. Each Guarantor consents and agrees that no member of the
Lender Group nor any Bank Product Provider shall be under any obligation to marshal any property or
assets of Borrowers or any other guarantor in favor of such Guarantor, or against or in payment of
any or all of the Guarantied Obligations.
6. Waivers.
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(a) To the fullest extent permitted by applicable law, each Guarantor hereby waives: (i)
notice of acceptance hereof; (ii) notice of any loans or other financial accommodations made or
extended under the Credit Agreement, or the creation or existence of any Guarantied Obligations;
(iii) notice of the amount of the Guarantied Obligations, subject, however, to each Guarantor’s
right to make inquiry of Agent to ascertain the amount of the Guarantied Obligations at any
reasonable time; (iv) notice of any adverse change in the financial condition of Borrowers or of
any other fact that might increase such Guarantor’s risk hereunder; (v) notice of presentment for
payment, demand, protest, and notice thereof as to any instrument among the Loan Documents; (vi)
notice of any Default or Event of Default under any of the Loan Documents; and (vii) all other
notices (except if such notice is specifically required to be given to each Guarantor under this
Guaranty or any other Loan Documents to which such Guarantor is a party) and demands to which each
Guarantor might otherwise be entitled.
(b) To the fullest extent permitted by applicable law, each Guarantor hereby waives the right
by statute or otherwise to require any member of the Lender Group or any Bank Product Provider, to
institute suit against any Borrower or any other guarantor or to exhaust any rights and remedies
which any member of the Lender Group or any Bank Product Provider, has or may have against any
Borrower or any other guarantor. In this regard, each Guarantor agrees that it is bound to the
payment of each and all Guarantied Obligations, whether now existing or hereafter arising, as fully
as if the Guarantied Obligations were directly owing to Agent, the Lender Group, or the Bank
Product Providers, as applicable, by such Guarantor. Each Guarantor further waives any defense
arising by reason of any disability or other defense (other than the defense that the Guarantied
Obligations shall have been fully and finally performed and paid in full, to the extent of any such
payment) of Borrowers or by reason of the cessation from any cause whatsoever of the liability of
Borrowers in respect thereof.
(c) To the fullest extent permitted by applicable law, each Guarantor hereby waives: (i) any
right to assert against any member of the Lender Group or any Bank Product Provider, any defense
(legal or equitable), set-off, counterclaim, or claim which such Guarantor may now or at any time
hereafter have against Borrowers or any other party liable to any member of the Lender Group or any
Bank Product Provider; (ii) any defense, set-off, counterclaim, or claim, of any kind or nature,
arising directly or indirectly from the present or future lack of perfection, sufficiency,
validity, or enforceability of the Guarantied Obligations or any security therefor; (iii) any right
or defense arising by reason of any claim or defense based upon an election of remedies by any
member of the Lender Group or any Bank Product Provider including any defense based upon an
impairment or elimination of such Guarantor’s rights of subrogation, reimbursement, contribution,
or indemnity of such Guarantor against Borrowers or other guarantors or sureties; (iv) the benefit
of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement
thereof, and any act which shall defer or delay the operation of any statute of limitations
applicable to the Guarantied Obligations shall similarly operate to defer or delay the operation of
such statute of limitations applicable to such Guarantor’s liability hereunder.
(d) Until the Guarantied Obligations have been paid in full, (i) each Guarantor hereby
postpones and agrees not to exercise any right of subrogation such Guarantor has or may have as
against Borrowers with respect to the Guarantied Obligations; (ii) each Guarantor hereby postpones
and agrees not to exercise any right to proceed against Borrowers or any other Person now or
hereafter liable on account of the Obligations for contribution, indemnity, reimbursement, or any
other similar rights (irrespective of whether direct or indirect, liquidated or contingent); and
(iii) each Guarantor hereby postpones and agrees not to exercise any right it may have to proceed
or to seek recourse against or with respect to any property or asset of Borrowers or any other
Person now or hereafter liable on account of the Obligations. Notwithstanding anything to the
contrary contained in this Guaranty, each Guarantor shall not exercise any rights of subrogation,
contribution, indemnity, reimbursement or other similar rights against, and shall not proceed or
seek recourse against or with respect to any property or asset of, Borrowers or any other guarantor
(including after payment in full of the Guaranteed Obligations) if all or any portion of the
Obligations have been satisfied in connection with an exercise of remedies in respect of the Stock
of any Borrower or such other guarantor whether pursuant to the Security Agreement or otherwise.
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(e) If any of the Guarantied Obligations or the obligations of each Guarantor under this
Guaranty at any time are secured by a mortgage or deed of trust upon real property, any member of
the Lender Group or any Bank Product Provider may elect, in its sole discretion, upon a default
with respect to the Guarantied Obligations or the obligations of each Guarantor under this
Guaranty, to foreclose such mortgage or deed of trust judicially or nonjudicially in any manner
permitted by law, before or after enforcing this Guaranty, without diminishing or affecting the
liability of each Guarantor hereunder. Each Guarantor understands that (a) by virtue of the
operation of antideficiency law applicable to nonjudicial foreclosures, an election by any member
of the Lender Group or any Bank Product Provider to nonjudicially foreclose on such a mortgage or
deed of trust probably would have the effect of impairing or destroying rights of subrogation,
reimbursement, contribution, or indemnity of each Guarantor against Borrowers or other guarantors
or sureties, and (b) absent the waiver given by each Guarantor herein, such an election would estop
any member of the Lender Group and the Bank Product Providers from enforcing this Guaranty against
scuh Guarantor. Understanding the foregoing, and understanding that each Guarantor is hereby
relinquishing a defense to the enforceability of this Guaranty, each Guarantor hereby waives any
right to assert against any member of the Lender Group or any Bank Product Provider any defense to
the enforcement of this Guaranty, whether denominated “estoppel” or otherwise, based on or arising
from an election by any member of the Lender Group or any Bank Product Provider to nonjudicially
foreclose on any such mortgage or deed of trust or as a result of any other exercise of remedies,
whether under a mortgage or deed of trust or under any personal property security agreement. Each
Guarantor understands that the effect of the foregoing waiver may be that each Guarantor may have
liability hereunder for amounts with respect to which such Guarantor may be left without rights of
subrogation, reimbursement, contribution, or indemnity against Borrower or other guarantors or
sureties.
(f) Without limiting the generality of any other waiver or other provision set forth in this
Guaranty, each Guarantor waives all rights and defenses that such Guarantor may have if all or part
of the Guarantied Obligations are secured by real property. This means, among other things:
(i) Any member of the Lender Group or any Bank Product Provider may collect from any Guarantor
without first foreclosing on any real or personal property collateral that may be pledged by any
other Guarantor, any Borrower or any other guarantor.
(ii) If any member of the Lender Group or any Bank Product Provider forecloses on any real
property collateral that may be pledged by any Guarantor, any Borrower or any other guarantor:
| (1) | The amount of the Guarantied Obligations or any obligations of any guarantor in respect thereof may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price. | ||
| (2) | Agent may collect from each Guarantor even if any member of the Lender Group or any Bank Product Provider, by foreclosing on the real property collateral, has destroyed any right such Guarantor may have to collect from Borrowers or any other Guarantor. |
This is an unconditional and irrevocable waiver of any rights and defenses each Guarantor may
have if all or part of the Guarantied Obligations are secured by real property.
(g) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET FORTH IN THIS
GUARANTY, EACH GUARANTOR WAIVES ALL RIGHTS AND DEFENSES ARISING OUT OF AN ELECTION OF REMEDIES BY
ANY MEMBER OF THE LENDER GROUP OR ANY BANK PRODUCT PROVIDER, EVEN THOUGH SUCH ELECTION OF REMEDIES,
SUCH AS A NONJUDICIAL FORECLOSURE WITH RESPECT TO SECURITY FOR THE GUARANTIED OBLIGATIONS, HAS
DESTROYED SUCH GUARANTOR’S RIGHTS OF
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SUBROGATION AND REIMBURSEMENT AGAINST BORROWERS BY THE OPERATION OF APPLICABLE LAW.
(h) Without limiting the generality of any other waiver or other provision set forth in this
Guaranty, each Guarantor hereby also agrees to the following waivers:
(i) Agent’s right to enforce this Guaranty is absolute and is not contingent upon the
genuineness, validity or enforceability of the Guarantied Obligations or any of the Loan Documents.
Each Guarantor agrees that Agent’s rights under this Guaranty shall be enforceable even if
Borrowers had no liability at the time of execution of the Loan Documents or the Guarantied
Obligations are unenforceable in whole or in part, or Borrowers cease to be liable with respect to
all or any portion of the Guarantied Obligations.
(ii) Each Guarantor agrees that Agent’s rights under the Loan Documents will remain
enforceable even if the amount guaranteed hereunder is larger in amount and more burdensome than
that for which Borrowers are responsible. The enforceability of this Guaranty against each
Guarantor shall continue until all sums due under the Loan Documents have been paid in full and
shall not be limited or affected in any way by any impairment or any diminution or loss of value of
any security or collateral for Borrowers’ obligations under the Loan Documents, from whatever
cause, the failure of any security interest in any such security or collateral or any disability or
other defense of any Borrower, any other guarantor of Borrowers’ obligations under any other Loan
Document, any pledgor of collateral for any person’s obligations to Agent or any other person in
connection with the Loan Documents.
(iii) Each Guarantor waives the right to require Agent to (A) proceed against Borrowers, any
guarantor of Borrowers’ obligations under any Loan Document, any other pledgor of collateral for
any person’s obligations to Agent or any other person in connection with the Guarantied
Obligations, (B) proceed against or exhaust any other security or collateral Agent may hold, or (C)
pursue any other right or remedy for such Guarantor’s benefit, and agrees that Agent may exercise
its right under this Guaranty without taking any action against Borrowers, any other guarantor of
Borrowers’ obligations under the Loan Documents, any pledgor of collateral for any person’s
obligations to Agent or any other person in connection with the Guarantied Obligations, and without
proceeding against or exhausting any security or collateral Agent holds.
7. Releases. (a) Each Guarantor consents and agrees that, without notice to or by
such Guarantor and without affecting or impairing the obligations of such Guarantor hereunder, any
member of the Lender Group or any Bank Product Provider may, by action or inaction, compromise or
settle, shorten or extend the Maturity Date or any other period of duration or the time for the
payment of the Obligations, or discharge the performance of the Obligations, or may refuse to
enforce the Obligations, or otherwise elect not to enforce the Obligations, or may, by action or
inaction, release all or any one or more parties to, any one or more of the terms and provisions of
the Credit Agreement or any of the other Loan Documents or may grant other indulgences to Borrowers
or any other guarantor in respect thereof, or may amend or modify in any manner and at any time (or
from time to time) any one or more of the Obligations, the Credit Agreement or any other Loan
Document (including any increase or decrease in the principal amount of any Obligations or the
interest, fees or other amounts that may accrue from time to time in respect thereof), or may, by
action or inaction, release or substitute Borrowers or any guarantor, if any, of the Guarantied
Obligations, or may enforce, exchange, release, or waive, by action or inaction, any security for
the Guarantied Obligations or any other guaranty of the Guarantied Obligations, or any portion
thereof.
(b) Each member of the Lender Group and each Bank Product Provider hereby consents to the
release and hereby directs Agent to release any Guarantor from its obligations hereunder in the
event that (i) all the Stock of such Guarantor be sold to any Person that is not a Borrower or a
Subsidiary of a Borrower in a transaction permitted by the Loan Documents or (ii) all of the
Obligations under the Loan Documents have been indefeasibly paid in full and the Lender Group’s
obligations to provide additional credit under the Loan
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Documents have been terminated irrevocably. In connection therewith, each member of the
Lender Group and each Bank Product Provider hereby directs Agent, and Agent agrees, at Borrower’s
sole expense, upon receipt of at least five (5) Business Days advance notice from any such
Guarantor, to execute and deliver to such Guarantor such documents as such Guarantor shall
reasonably request to evidence such release.
8. No Election. The Lender Group and the Bank Product Providers shall have the right
to seek recourse against each Guarantor to the fullest extent provided for herein and no election
by any member of the Lender Group or any Bank Product Provider to proceed in one form of action or
proceeding, or against any party, or on any obligation, shall constitute a waiver of the Lender
Group’s or any Bank Product Provider’s right to proceed in any other form of action or proceeding
or against other parties unless Agent, on behalf of the Lender Group or the Bank Product Providers,
has expressly waived such right in writing. Specifically, but without limiting the generality of
the foregoing, no action or proceeding by the Lender Group or the Bank Product Providers under any
document or instrument evidencing the Guarantied Obligations shall serve to diminish the liability
of each Guarantor under this Guaranty except to the extent that the Lender Group and the Bank
Product Providers finally and unconditionally shall have realized payment in full of the Guarantied
Obligations by such action or proceeding.
9. Revival and Reinstatement. If the incurrence or payment of the Guarantied
Obligations or the obligations of each Guarantor under this Guaranty by each Guarantor or the
transfer by each Guarantor to Agent of any property of such Guarantor should for any reason
subsequently be declared to be void or voidable under any state or federal law relating to
creditors’ rights, including provisions of the Bankruptcy Code relating to fraudulent conveyances,
preferences, or other voidable or recoverable payments of money or transfers of property
(collectively, a “Voidable Transfer”), and if the Lender Group is required to repay or
restore, in whole or in part, any such Voidable Transfer, or elects to do so upon the reasonable
advice of its counsel, then, as to any such Voidable Transfer, or the amount thereof that the
Lender Group is required or elects to repay or restore, and as to all reasonable costs, expenses,
and attorneys fees of the Lender Group related thereto, the liability of each Guarantor
automatically shall be revived, reinstated, and restored and shall exist as though such Voidable
Transfer had never been made.
10. Financial Condition of Borrowers. Each Guarantor represents and warrants to the
Lender Group and the Bank Product Providers that it is currently informed of the financial
condition of Borrowers and of all other circumstances which a diligent inquiry would reveal and
which bear upon the risk of nonpayment of the Guarantied Obligations. Each Guarantor further
represents and warrants to the Lender Group and the Bank Product Providers that it has read and
understands the terms and conditions of the Credit Agreement and each other Loan Document. Each
Guarantor hereby covenants that it will continue to keep itself informed of the Borrowers’
financial condition, the financial condition of other guarantors, if any, and of all other
circumstances which bear upon the risk of nonpayment or nonperformance of the Guarantied
Obligations.
11. Payments; Application. All payments to be made hereunder by each Guarantor shall
be made in Dollars, in immediately available funds, and without deduction (whether for taxes or
otherwise) or offset and shall be applied to the Guarantied Obligations in accordance with the
terms of the Credit Agreement.
12. Attorneys Fees and Costs. Each Guarantor agrees to pay all attorneys fees and all
other costs and expenses which may be incurred by Agent or the Lender Group in connection with the
enforcement of this Guaranty or in any way arising out of, or consequential to, the protection,
assertion, or enforcement of the Guarantied Obligations (or any security therefor), irrespective of
whether suit is brought, in each case, at the times required and not otherwise paid by Borrowers
pursuant to Section 17.10 of the Credit Agreement.
13. Notices. All notices and other communications hereunder to Agent shall be in
writing and shall be mailed, sent, or delivered in accordance Section 11 of the Credit
Agreement. All notices and other communications hereunder to any Guarantor shall be in writing and
shall be mailed, sent, or delivered in care of the Administrative Borrower in accordance with
Section 11 of the Credit Agreement.
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14. Cumulative Remedies. No remedy under this Guaranty, under the Credit Agreement,
or any other Loan Document is intended to be exclusive of any other remedy, but each and every
remedy shall be cumulative and in addition to any and every other remedy given under this Guaranty,
under the Credit Agreement, or any other Loan Document, and those provided by law. No delay or
omission by the Lender Group or Agent on behalf thereof to exercise any right under this Guaranty
shall impair any such right nor be construed to be a waiver thereof. No failure on the part of the
Lender Group or Agent on behalf thereof to exercise, and no delay in exercising, any right under
this Guaranty shall operate as a waiver thereof; nor shall any single or partial exercise of any
right under this Guaranty preclude any other or further exercise thereof or the exercise of any
other right.
15. Severability of Provisions. Each provision of this Guaranty shall be severable
from every other provision of this Guaranty for the purpose of determining the legal enforceability
of any specific provision.
16. Entire Agreement; Amendments. This Guaranty constitutes the entire agreement
between each Guarantor and the Lender Group pertaining to the subject matter contained herein.
This Guaranty may not be altered, amended, or modified, nor may any provision hereof be waived or
noncompliance therewith consented to, except by means of a writing executed by each Guarantor and
Agent, on behalf of the Lender Group. Any such alteration, amendment, modification, waiver, or
consent shall be effective only to the extent specified therein and for the specific purpose for
which given. No course of dealing and no delay or waiver of any right or default under this
Guaranty shall be deemed a waiver of any other, similar or dissimilar, right or default or
otherwise prejudice the rights and remedies hereunder.
17. Successors and Assigns. This Guaranty shall be binding upon each Guarantor and
its successors and assigns and shall inure to the benefit of the successors and assigns of the
Lender Group and the Bank Product Providers; provided, however, each Guarantor
shall not assign this Guaranty or delegate any of its duties hereunder without Agent’s prior
written consent or unless in connection with a transaction otherwise permitted under Section 6.3 of
the Credit Agreement, and any unconsented to or unpermitted assignment shall be absolutely null and
void. In the event of any assignment, participation, or other transfer of rights by the Lender
Group or the Bank Product Providers, the rights and benefits herein conferred upon the Lender Group
and the Bank Product Providers shall automatically extend to and be vested in such assignee or
other transferee.
18. No Third Party Beneficiary. This Guaranty is solely for the benefit of each
member of the Lender Group, each Bank Product Provider, and each of their successors and permitted
assigns and may not be relied on by any other Person.
19. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.
THE VALIDITY OF THIS GUARANTY, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, AND
THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO
SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS GUARANTY
SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN, STATE OF NEW YORK, PROVIDED, HOWEVER, THAT ANY
SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT’S
OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS TO BRING SUCH ACTION OR WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH GUARANTOR AND EACH
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MEMBER OF THE LENDER GROUP WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH
MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY
PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 19.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR AND EACH MEMBER OF THE
LENDER GROUP HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. EACH GUARANTOR AND EACH MEMBER OF THE LENDER GROUP REPRESENT THAT EACH HAS
REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS SECTION MAY BE FILED
AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
20. Counterparts; Telefacsimile or Electronic Execution. This Guaranty may be
executed in any number of counterparts and by different parties on separate counterparts, each of
which, when executed and delivered, shall be deemed to be an original, and all of which, when taken
together, shall constitute but one and the same Guaranty. Delivery of an executed counterpart of
this Guaranty by telefacsimile or other electronic transmission shall be equally as effective as
delivery of an original executed counterpart of this Guaranty. Any party delivering an executed
counterpart of this Guaranty by telefacsimile also shall deliver an original executed counterpart
of this Guaranty but the failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Guaranty.
21. Agreement to be Bound. Each Guarantor hereby agrees to be bound by each and all
of the terms and provisions of the Credit Agreement applicable to such Guarantor. Without limiting
the generality of the foregoing, by its execution and delivery of this Guaranty, each Guarantor
hereby: (a) makes to the Lender Group each of the representations and warranties set forth in the
Credit Agreement applicable to such Guarantor fully as though such Guarantor were a party thereto,
and such representations and warranties are incorporated herein by this reference, mutatis
mutandis; and (b) agrees and covenants (i) to do each of the things set forth in the Credit
Agreement that Borrowers agree and covenant to cause such Guarantor to do, and (ii) to not do each
of the things set forth in the Credit Agreement that Borrowers agree and covenant to cause such
Guarantor not to do, in each case, fully as though such Guarantor was a party thereto, and such
agreements and covenants are incorporated herein by this reference, mutatis mutandis.
22. New Guarantors. With the consent of Agent, any Person may become a party to this
Guaranty by executing and delivering in favor of Agent a supplement to this Agreement in the form
of Annex 1 attached hereto. Upon the execution and delivery of Annex 1 by such Person, such Person
shall become a Guarantor hereunder with the same force and effect as if originally named as a
Guarantor herein. The execution and delivery of any instrument adding an additional Guarantor as a
party to this Guaranty shall not require the consent of any Guarantor hereunder. The rights and
obligations of each Guarantor hereunder shall remain in full force and effect notwithstanding the
addition of any new Guarantor hereunder.
[Signature page to follow]
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IN WITNESS WHEREOF, the undersigned has executed and delivered this Guaranty as of the date
first written above.
| XXXX INTERMEDIATE HOLDING CORPORATION, a Delaware corporation |
||||
| By: | /s/ Xxxx Xxx Xxxxxx | |||
| Name: | Xxxx Xxx Xxxxxx | |||
| Title: | Vice President | |||
| AMERICAN COMMERCIAL LINES INC., a Delaware corporation |
||||
| By: | /s/ Xxxx Xxx Xxxxxx | |||
| Name: | Xxxx Xxx Xxxxxx | |||
| Title: | Vice President | |||
[SIGNATURE PAGE TO GUARANTY]
ANNEX 1 TO GUARANTY
FORM OF SUPPLEMENT
FORM OF SUPPLEMENT
SUPPLEMENT NO. ____ (this “Supplement”), dated as of _________, 20__, to the Guaranty (as
amended, restated, supplemented or otherwise modified from time to time, the “Guaranty”),
dated as of December 21, 2010, by each of the parties listed on the signature pages thereto and
those additional entities that thereafter become parties thereto (collectively, jointly and
severally, “Guarantors”, and each individually, “Guarantor”) and Agent (as defined
below).
WITNESSETH:
WHEREAS, the Guaranty was entered into pursuant to that certain Credit Agreement (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),
dated as of December 21, 2010, by and among the lenders identified on the signature pages thereto
(such lenders, together with their respective successors and permitted assigns, are referred to
hereinafter each individually as a “Lender” and collectively as the “Lenders”),
XXXXX FARGO CAPITAL FINANCE, LLC, a Delaware limited liability company, as agent for the Lender
Group and the Bank Product Providers (in such capacity, together with its successors and assigns in
such capacity, “Agent”), American Commercial Lines Inc., a Delaware corporation, Commercial
Barge Line Company, a Delaware corporation (“CBL”), American Commercial Lines LLC, a
Delaware limited liability company (“ACL”), ACL Transportation Services LLC, a Delaware
limited liability company (“ACLTS”) and Jeffboat LLC, a Delaware limited liability company
(“Jeffboat”; together with CBL, ACL and ACLTS, are referred to hereinafter each
individually as a “Borrower”, and individually and collectively, jointly and severally, as
the “Borrowers”); and
WHEREAS, all capitalized terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Guaranty or, as referred to therein, the Credit Agreement; and
WHEREAS, Guarantors have entered into the Guaranty in order to induce the Lender Group to make
certain financial accommodations to Borrowers; and
WHEREAS, pursuant to Section 5.11 of the Credit Agreement, certain Subsidiaries that are
formed or acquired by any Loan Party after the Closing Date must execute and deliver certain Loan
Documents, including the Guaranty, and the execution of the Guaranty by the undersigned new
Guarantor or Guarantors (collectively, the “New Guarantors”) may be accomplished by the
execution of this Supplement in favor of Agent, for the benefit of the Lender Group and the Bank
Product Providers;
NOW, THEREFORE, for and in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, each New Guarantor
hereby agrees as follows:
1. In accordance with Section 22 of the Guaranty, each New Guarantor, by such New
Guarantor’s signature below, becomes a “Guarantor” under the Guaranty with the same force and
effect as if originally named therein as a “Guarantor” and each New Guarantor hereby (a) agrees to
all of the terms and provisions of the Guaranty applicable to such Guarantor as a “Guarantor”
thereunder and (b) represents and warrants that the representations and warranties made by such
Guarantor as a “Guarantor” thereunder are true and correct on and as of the date hereof. Each
reference to a “Guarantor” in the Guaranty shall be deemed to include each New Guarantor. The
Guaranty is incorporated herein by reference.
2. Each New Guarantor represents and warrants to Agent, the Lender Group and the Bank Product
Providers that this Supplement has been duly executed and delivered by such New Guarantor and
constitutes such New Guarantor’s legal, valid and binding obligation, enforceable against such New
Guarantor in accordance with its terms.
Annex 1-1
3. This Supplement may be executed in multiple counterparts, each of which shall be deemed to be an
original, but all such separate counterparts shall together constitute but one and the same
instrument. Delivery of a counterpart hereof by facsimile transmission or by e-mail transmission
shall be as effective as delivery of a manually executed counterpart hereof.
4. Except as expressly supplemented hereby, the Guaranty shall remain in full force and effect.
5. THE VALIDITY OF THIS SUPPLEMENT, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, AND
THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO
SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
Annex 1-2
IN WITNESS WHEREOF, each New Guarantor and Agent have duly executed this Supplement to the
Guaranty as of the day and year first above written.
| NEW GUARANTORS: | [NAME OF NEW GUARANTOR, a ____________] |
|||
| By: | ||||
| Name | ||||
| Title: | ||||
| [NAME OF NEW GUARANTOR, a ____________] |
||||
| By: | ||||
| Name | ||||
| Title: | ||||
| AGENT: | XXXXX FARGO CAPITAL FINANCE, LLC, a Delaware limited liability company |
|||
| By: | ||||
| Name | ||||
| Title: | ||||
