GUARANTY AND SURETYSHIP AGREEMENT
(Partnership Guaranty)
This Agreement (the "Agreement") dated as of January 14, 1997, is
made and given by Abbingdon Venture Partners Limited Partnership - II, a
Delaware limited partnership ("Abbingdon Partners - II"), and Abbingdon Venture
Partners Limited Partnership - III, a Delaware limited partnership (Abbingdon
Partners - III") (Abbingdon Partners - II and Abbingdon Partners - III are
referred to collectively to as the "Guarantors" and individually as a
"Guarantor") in favor of PNC Bank, National Association (the "Bank") pursuant to
that certain Discretionary Line of Credit Letter Agreement dated as of even date
herewith (as it may hereinafter from time to time be amended, restated, modified
or supplemented, the "Discretionary Line Agreement") agreed to and accepted by
TLM Holdings Corp., a Delaware corporation (the "Borrower"), each Subsidiary of
the Borrower identified on Schedule 1 of the Discretionary Line Agreement, the
Guarantors and the Bank.
W I T N E S S E T H:
WHEREAS, the Loan Parties have agreed to and accepted the
Discretionary Line Agreement; and
WHEREAS, this Agreement is made by the Guarantors among other things
to induce the Bank to consider requests for loan advances pursuant to the
Discretionary Line Agreement; and
WHEREAS, the business and investments of the Loan Parties are
interdependent and loans, if any, made to the Borrower pursuant to the
Discretionary Line Agreement are with the expectation that the profits and other
opportunities from such businesses and investments will directly or indirectly
inure to the benefit of each Guarantor, each other Loan Party and to all of them
taken as an affiliated group.
NOW, THEREFORE, in consideration of the premises, and intending to
be legally bound, the Guarantors hereby agree as follows:
1. DEFINITIONS
1.1 Definitions. Capitalized terms used herein and not otherwise
defined herein shall have such meanings as given to them in the Discretionary
Line Agreement. In addition to the other terms defined elsewhere in this
Agreement, the following terms shall have the following meanings:
"Guaranteed Obligations" shall mean all obligations from time to
time of the Borrower to the Bank under or in connection with the Discretionary
Line Agreement, the Demand Note dated the date of this Agreement in the face
amount of $6,000,000 of the Borrower in favor of the Bank (the "Note"), or any
other Loan Document or which arise in any other manner, whether for principal,
interest, fees, indemnities, expenses or
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otherwise, and all refinancings or refundings thereof, whether such obligations
are direct or indirect, otherwise secured or unsecured, absolute or contingent,
due or to become due, whether for payment or performance, now existing or
hereafter arising (specifically including but not limited to obligations arising
or accruing after the commencement of any bankruptcy, insolvency, reorganization
or similar proceeding with respect to the Borrower, any other Loan Party or any
other individuals or entities including any Guarantor (a "Person") or which
would have arisen or accrued but for the commencement of such proceeding, even
if the claim for such obligation is not enforceable or allowable in such
proceeding). Without limitation of the foregoing, such obligations include all
obligations arising from any extensions of credit under or in connection with
the Loan Documents from time to time, regardless of whether any such extensions
of credit are in excess of the amount set forth under or contemplated by the
Loan Documents or are made in circumstances in which any condition to extension
of credit is not satisfied. Without limitation of the foregoing, the Bank (or
any successive assignee or transferee) from time to time may assign or otherwise
transfer all of its rights and obligations under the Loan Documents (including,
without limitation, all of any option to extend credit), or any other Guaranteed
Obligations, to any other Person, and such Guaranteed Obligations (including,
without limitation, any Guaranteed Obligations resulting from extension of
credit by such other Person under or in connection with the Loan Documents)
shall be and remain Guaranteed Obligations entitled to the benefit of this
Agreement.
2. GUARANTY AND SURETYSHIP
2.1 Guaranty and Suretyship. Subject to the limitations set forth in
Section 4. 17 hereof, the Guarantors hereby absolutely, unconditionally and
irrevocably guarantee and become surety for the full and punctual payment and
performance of the Guaranteed Obligations. This Agreement is an agreement of
suretyship as well as of guaranty, is a guarantee of payment and performance and
not merely of collectibility, and is in no way conditioned upon any attempt to
collect from or proceed against the Borrower or any other Persons or any other
event or circumstance. The obligations of the Guarantors under this Agreement
are direct and primary obligations of each Guarantor and are independent of the
Guaranteed Obligations, and a separate action or actions may be brought against
any one or more of the Guarantors regardless of whether action is brought
against the Borrower, any other Guarantor or any other Persons or whether the
Borrower, any other Guarantor or any other Persons are joined in any such action
or actions.
2.2 Obligations Absolute. The Guarantors agree that the Guaranteed
Obligations will be paid and performed strictly in accordance with the terms of
the Loan Documents, regardless of any Law, regulation or order now or hereafter
in effect in any jurisdiction affecting the Guaranteed Obligations, any of the
terms of the Loan Documents or the rights of the Bank or any other Person with
respect thereto. The obligations of the Guarantors under this Agreement shall be
absolute, unconditional and irrevocable, irrespective of any of the following:
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(a) Any lack of genuineness, legality, validity,
enforceability or allocability (in a bankruptcy, insolvency, reorganization or
similar proceeding, or otherwise), or any avoidance or subordination, in whole
or in part, of any Loan Document or any of the Guaranteed Obligations.
(b) Any increase, decrease or change in the amount, nature,
type or purpose of any of the Guaranteed Obligations (whether or not
contemplated by the Loan Documents as presently constituted); any change in the
time, manner, method or place of payment or performance of, or in any other term
of, any of the Guaranteed Obligations; any execution or delivery of any
additional Loan Documents; or any amendment, modification or supplement to, or
refinancing or refunding of, any Loan Document or any of the Guaranteed
Obligations.
(c) Any extensions of credit in excess of the amount committed
under or contemplated by the Loan Documents, or in circumstances in which any
condition to such extensions of credit has not been satisfied; any other
exercise or non-exercise, or any other failure, omission, breach, default, delay
or wrongful action in connection with any exercise or non-exercise, of any right
or remedy against the Borrower or any other Persons under or in connection with
any Loan Document or any of the Guaranteed Obligations; any refusal of payment
or performance of any of the Guaranteed Obligations, whether or not with any
reservation of rights against any Guarantor; or any application of collections
(including but not limited to collections resulting from realization upon any
direct or indirect security for the Guaranteed Obligations) to other
obligations, if any, not entitled to the benefits of this Agreement, in
preference to Guaranteed Obligations entitled to the benefits of this Agreement,
or if any collections are applied to Guaranteed Obligations, any application to
particular Guaranteed Obligations.
(d) Any taking, exchange, amendment, modification, supplement,
termination, subordination, release, loss or impairment of, or: any failure to
protect, perfect, or preserve the value of, or any enforcement of, realization
upon, or exercise of rights, or remedies under or in connection with, or any
failure, omission, breach, default, delay or wrongful action by the Bank, or any
other Person in connection with the enforcement of, realization upon, or
exercise of rights or remedies under or in connection with, or, any other action
or inaction by the Bank, or any other Person in respect of, any direct or
indirect security for any of the Guaranteed Obligations. As used in this
Agreement, "direct or indirect security" for the Guaranteed Obligations, and
similar phrases, includes but is not limited to any collateral security,
guaranty, suretyship, letter of credit, capital maintenance agreement, put
option, subordination agreement or other right or arrangement of any nature
providing direct or indirect assurance of payment or performance of any of the
Guaranteed Obligations, made by or on behalf of any Person.
(e) Any merger, consolidation, liquidation, dissolution,
winding-up, charter revocation or forfeiture, or other change in, restructuring
or termination of the corporate structure or existence of, the Borrower or any
other Persons; any bankruptcy, insolvency, reorganization or similar proceeding
with respect to the Borrower or any other Persons; or any action taken or
election made by the Bank, (including but not limited to any election under
Section 1111(b)(2) of the United States Bankruptcy Code), the Borrower or any
other Persons in connection with any such proceeding.
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(f) Any defense, setoff or counterclaim (excluding only the
defense of full, strict and indefeasible payment and performance), which may at
any time be available to or be asserted by the Borrower or any other Persons
with respect to any Loan Document or any of the Guaranteed Obligations; or any
discharge by operation of law or release of the Borrower or any other Persons
from the performance or observance of any Loan Document or any of the Guaranteed
Obligations.
(g) Any other event or circumstance, whether similar or
dissimilar to the foregoing, and whether known or unknown, which might otherwise
constitute a defense available to, or limit the liability of, any Guarantor, a
guarantor or a surety, excepting only full, strict and indefeasible payment and
performance of the Guaranteed Obligations in full.
2.3 Waivers, etc. The Guarantors hereby waive any defense to or
limitation on their obligations under this Agreement arising out of or based on
any event or circumstance referred to in Section 2.2 hereof. Without limitation,
the Guarantors waive each of the following:
(a) All notices, disclosures and demands of any nature which
otherwise might be required from time to time to preserve intact any rights
against any Guarantor, including without limitation the following: any notice of
any event or circumstance described in Section 2.2 hereof; any notice required
by any Law, regulation or order now or hereafter in effect in any jurisdiction;
any notice of nonpayment, nonperformance, dishonor, or protest under any Loan
Document or any of the Guaranteed Obligations; any notice of the incurrence of
any Guaranteed Obligation; any notice of any default or any failure on the part
of the Borrower or any other Persons to comply with any Loan Document or any of
the Guaranteed Obligations or any direct or indirect security for any of the
Guaranteed Obligations; and any notice of any information pertaining to the
business, operations, condition (financial or otherwise) or prospects of the
Borrower or any other Persons.
(b) Any right to any marshalling of assets, to the filing of
any claim against the Borrower or any other Persons in the event of any
bankruptcy, insolvency, reorganization or similar proceeding, or to the exercise
against the Borrower or any other Persons of any other right or remedy under or
in connection with any Loan Document or any of the Guaranteed Obligations or any
direct or indirect security for any of the Guaranteed Obligations; any
requirement of promptness or diligence on the part of the Bank, or any other
Person; any requirement to exhaust any remedies under or in connection with, or
to mitigate the damages resulting from default under, any Loan Document or any
of the Guaranteed Obligations or any direct or indirect security for any of the
Guaranteed Obligations; any benefit of any statute of limitations; and any
requirement of acceptance of this Agreement, and any requirement that any
Guarantor receive notice of such acceptance.
(c) Any defense or other right arising by reason of any law
now or hereafter in effect in any jurisdiction pertaining to election of
remedies (including but not limited to antideficiency laws, "one action" laws or
the like), or by reason of any election of remedies or other action or inaction
by the Bank, (including but not limited to commencement or completion of any
judicial proceeding or nonjudicial sale or other action in respect of collateral
security for any of the Guaranteed Obligations), which results in denial or
impairment of the right of the Bank to
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seek a deficiency against the Borrower or any other Persons or which otherwise
discharges or impairs any of the Guaranteed Obligations.
2.4 Reinstatement. This Agreement shall continue to be effective, or
be automatically reinstated, as the case may be, if at any time payment of any
of the Guaranteed Obligations is avoided, rescinded or must otherwise be
returned by the Bank for any reason (including, without limitation, by reason of
such payment being a preference, fraudulent transfer or fraudulent conveyance),
all as though such payment had not been made.
2.5 No Stay. Without limitation of any other provision of this
Agreement, if any exercise or condition to exercise of rights or remedies under
or with respect to any Guaranteed Obligation shall at any time be stayed,
enjoined or prevented for any reason (including but not limited to stay or
injunction resulting from the pendency against the Borrower or any other Persons
of a bankruptcy, insolvency, reorganization or similar proceeding), the
Guarantors agree that, for the purposes of this Agreement and their obligations
hereunder, the Guaranteed Obligations shall be deemed to have been requested and
such other exercise or conditions to exercise shall be deemed to have been taken
or met.
2.6 Payments. All payments to be made by any Guarantor pursuant to
this Agreement shall be made without setoff, counterclaim, withholding or other
deduction of any nature.
2.7 Continuing Guaranty. This Agreement is a continuing agreement
and shall continue in full force and effect (notwithstanding that no Guaranteed
Obligations may be outstanding from time to time, or any other event or
circumstance) until all Guaranteed Obligations and all other amounts payable
under this Agreement have been paid and performed in full, subject in any event
to reinstatement in accordance with Section 2.4 hereof. Any purported
termination, revocation or discharge of this Agreement shall be void and of no
effect. For purposes of this Agreement, the Guaranteed Obligations shall not be
deemed to have been paid in full until the Bank shall have indefeasibly received
payment of the Guaranteed Obligations in full and in cash.
3. REPRESENTATIONS AND WARRANTIES
Each Guarantor hereby represents and warrants to the Bank as
follows:
3.1 No Reliance. The Guarantor has, independently and without
reliance upon the Bank, and based upon such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement.
3.2 Partnership Agreement. The Guarantor has provided to the Bank a
true and correct copy of the Agreement of Limited Partnership of the Guarantor
together with all amendments thereto.
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4. MISCELLANEOUS
4.1 Amendments, etc. No amendment to or waiver of any provision of
this Agreement, and no consent to any departure by any Guarantor herefrom, shall
in any event be effective unless in a writing manually signed by or on behalf of
the Bank. Any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
4.2 No Implied Waiver: Remedies Cumulative. No delay or failure of
the Bank in exercising any right or remedy under this Agreement shall operate as
a waiver thereof; nor shall any single or partial exercise of any such right or
remedy preclude any other or further exercise thereof or the exercise of any
other right or remedy. The rights and remedies of the Bank under this Agreement
are cumulative and not exclusive of any other rights or remedies available
hereunder, under any other agreement or instrument, by law, or otherwise.
4.3 Notices. Each Guarantor agrees that all notices, statements,
requests, demands and other communications under this Agreement shall be given
to such Guarantor at the address set forth below the signature line for the
Guarantors to the Discretionary Line Agreement on the signature page thereof.
The Bank may rely on any notice (whether or not made in a manner contemplated by
this Agreement) purportedly made by or on behalf of a Guarantor, and the Bank
shall have no duty to verify the identity or authority of the Person giving such
notice.
4.4 Expenses. Each Guarantor agrees unconditionally upon demand to
pay or reimburse to the Bank, and to save the Bank harmless against liability
for the payment of, all reasonable out-of-pocket costs, expenses and
disbursements (including fees and expenses of counsel for the Bank) incurred by
the Bank, (i) in connection with the administration and interpretation of this
Agreement and any other instruments and documents delivered hereunder, (ii)
relating to any amendments, waivers or consents pursuant to the provisions
hereof, (iii) in connection with the enforcement of this Agreement or collection
of amounts due hereunder or thereunder or the proof and allocability of any
claim arising under this Agreement whether in bankruptcy or receivership
proceedings or otherwise, and (iv) in any workout or restructuring or in
connection with the protection, preservation, exercise or enforcement of any of
the terms hereof or of any rights hereunder or in connection with any
foreclosure, collection or bankruptcy proceedings.
4.5 Prior Understandings. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior and contemporaneous understandings and agreements.
4.6 Survival. All representations and warranties of the Guarantors
contained in or made in connection with this Agreement shall survive, and shall
not be waived by, the execution and delivery of this Agreement, any
investigation by or knowledge of the Bank, any extension of credit, or any other
event or circumstance whatsoever.
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4.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument.
4.8 Setoff. The Bank shall have the right from time to time, without
notice to any Guarantor, to set off against and apply to such due and payable
amount any obligation of any nature of the Bank to any Guarantor, including but
not limited to all deposits (whether time or demand, general or special,
provisionally credited or finally credited, however evidenced) now or hereafter
maintained by any Guarantor with the Bank. The Bank agrees promptly to notify
the Borrower on behalf of the Guarantors after any such set-off and application,
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. Such right shall be absolute and
unconditional in all circumstances and, without limitation, shall exist whether
or not the Bank shall have given any notice under this Agreement or under such
obligation to such Guarantor, whether such obligation to such Guarantor is
absolute or contingent, matured or unmatured (it being agreed that the Bank may
deem such obligation to be then due and payable at the time of such setoff), and
regardless of the existence or adequacy of any collateral, guaranty or other
direct or indirect security, right or remedy available to the Bank. The rights
of the Bank under this Section are in addition to such other rights and remedies
(including, without limitation, other rights of setoff end banker's lien) which
the Bank may have, and nothing in this Agreement or in any other Loan Document
shall be deemed a waiver of or restriction on the right of setoff or banker's
lien of the Bank. The Guarantors hereby agree that, to the fullest extent
permitted by Law, any affiliate of the Bank and any holder of a participation in
any obligation of any Guarantor under this Agreement, shall have the same rights
of setoff as the Bank as provided in this Section 4.8 (regardless of whether
such affiliate or participant otherwise would be deemed a creditor of such
Guarantor).
4.9 Construction. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect interpretation of
this Agreement in any respect. This Agreement has been fully negotiated between
the applicable parties, each party having the benefit of legal counsel, and
accordingly neither any doctrine of construction of guaranties or suretyship in
favor of the guarantor or surety, nor any doctrine of construction of
ambiguities in agreements or instruments against the party controlling the
drafting thereof, shall apply to this Agreement.
4.10 Successors and Assigns. This Agreement shall be binding upon
each Guarantor, its successors and assigns, and shall inure to the benefit of
and be enforceable by the Bank and its successors and assigns. Without
limitation of the foregoing, the Bank (and any successive assignee or
transferee), from time to time may assign or otherwise transfer all or any
portion of its rights or obligations under the Loan Documents or any other
Guaranteed Obligations, to any other Person and such Guaranteed Obligations
(including, without limitation, any Guaranteed Obligations resulting from
extension of credit by such other Person under or in connection with the Loan
Documents) shall be and remain Guaranteed Obligations entitled to the benefit of
this Agreement, and to the extent of its interest in such Guaranteed Obligations
such other Person shall be vested with all the benefits in respect thereof
granted to the Bank in this Agreement or otherwise.
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4.11 Governing Law: Submission to Jurisdiction: Waiver of Jury
Trial.
(a) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
(b) Certain Waivers. EACH GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
(i) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY
PERSON ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY
STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT
OCCURRING IN CONNECTION HEREWITH OR THEREWITH (COLLECTIVELY
"RELATED LITIGATION") MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION SITTING IN ALLEGHENY COUNTY,
PENNSYLVANIA, SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND
TO THE FULLEST EXTENT PERMITTED BY LAW AGREES THAT IT WILL NOT
BRING ANY RELATED LITIGATION IN ANY OTHER FORUM (BUT NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE BANK TO BRING ANY ACTION,
SUIT OR PROCEEDING IN ANY OTHER FORUM);
(ii) WAIVES ANY OBLIGATION WHICH IT MAY HAVE AT ANY TIME
TO THE LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN
ANY SUCH COURT, WAIVES ANY CLAIM THAT ANY SUCH RELATED
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, AND
WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO ANY RELATED
LITIGATION BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES NOT
HAVE JURISDICTION OVER THE GUARANTOR;
(iii) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY
REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO THE
GUARANTOR AT THE ADDRESS FOR NOTICES DESCRIBED IN THIS
AGREEMENT, AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL
CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT
NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF
PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW); AND
(iv) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED
LITIGATION.
(c) Limitation of Liability. TO THE FULLEST EXTENT PERMITTED
BY LAW, NO CLAIM MAY BE MADE BY ANY GUARANTOR OR ANY OTHER PERSON AGAINST THE
BANK, OR ANY AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, ATTORNEY OR AGENT OF THE
BANK FOR ANY SPECIAL, INDIRECT,
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CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM ARISING FROM OR
RELATING TO THIS AGREEMENT OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION,
OR EVENT OCCURRING IN CONNECTION HEREWITH (WHETHER FOR BREACH OF CONTRACT, TORT
OR ANY OTHER THEORY OF LIABILITY); AND EACH GUARANTOR HEREBY WAIVES, RELEASES
AND AGREES NOT TO XXX UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT
ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
4.12 Severability; Modification to Conform to Law.
(a) It is the intention of the parties that this Agreement be
enforceable to the fullest extent permissible under applicable Law, but that the
unenforceability (or modification to conform to such Law) of any provision or
provisions hereof shall not render unenforceable, or impair, the remainder
hereof. If any provision in this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, this Agreement shall, as
to such jurisdiction, be deemed amended to modify or delete, as necessary, the
offending provision or provisions and to alter the bounds thereof in order to
render it or them valid and enforceable to the maximum extent permitted by
applicable Law, without in any manner affecting the validity or enforceability
of such provision or provisions in any other jurisdiction or the remaining
provisions hereof in any jurisdiction.
(b) Without limitation of the preceding subsection (a), to the
extent that mandatory applicable Law (including but not limited to applicable
laws pertaining to fraudulent conveyance or fraudulent transfer) otherwise would
render the full amount of any Guarantor's obligations hereunder invalid or
unenforceable, such Guarantor's obligations hereunder shall be limited to the
maximum amount which does not result in such invalidity or unenforceability.
(c) Notwithstanding anything to the contrary in this Section
4.12 or elsewhere in this Agreement, this Agreement shall be presumptively valid
and enforceable to its full extent in accordance with its terms, as if this
Section 4.12 (and references elsewhere in this Agreement to enforceability to
the fullest extent permitted by Law) were not a part of this Agreement, and in
any related litigation the burden of proof shall be on the party asserting the
invalidity or unenforceability of any provision hereof or asserting any
limitation on any Guarantor's obligations hereunder as to each element of such
assertion.
4.13 Additional Guarantors. At any time after the initial execution
and delivery of this Agreement to the Bank, additional Persons may become
parties to this Agreement and thereby acquire the duties and rights of being
Guarantors hereunder by executing and delivering to the Bank a counterpart
signature page for attachment hereto. No notice of the addition of any Guarantor
shall be required to be given to any pre-existing Guarantor.
4.14 Cash on Hand and Capital: Organizational Documents. Each
Guarantor expressly covenants to the Bank as follows: (i) it will at all times
maintain cash on hand and capital subject to call without any right of set off
or counterclaim in accordance with the provisions of its Agreement of Limited
Partnership in an aggregate amount equal to the sum of (a) the amount
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of Guaranteed Obligations for which it is liable; and (b) the amount of all
commitments to make future advances or guarantees pursuant to any agreement to
which the Guarantor is a party or by which it is bound; (ii) it will not amend
in any respect its Agreement of Limited Partnership or other organizational
documents without providing at least thirty (30) calendar days' prior written
notice to the Bank and, in the event such change would be materially adverse to
the Bank as determined by the Bank in its sole discretion obtaining the prior
written consent of the Bank; and (iii) Xxxx X. Xxxxxx shall at all times control
the management of and shall own a majority of the equity interests of the
general partner of the Guarantor.
4.15 Reports and Information.
(a) Each Guarantor shall furnish or cause to be furnished to
the Bank, in addition to all other information as the Bank may reasonably
request, as soon as available and in any event within one hundred and twenty
(120) days after the end of each fiscal year, financial statements of such
Guarantor consisting of a balance sheet as of the end of such fiscal year, and
related statements of income, partners' equity and cash flows for the fiscal
year then ended, all in reasonable detail and setting forth in comparative form
the financial statements as of the end of and for the preceding fiscal year, and
certified by Price Waterhouse LLP or other independent certified public
accountants of nationally recognized standing reasonably satisfactory to the
Bank except it is acknowledged that the balance sheet of such financial
statements may include securities which, in accordance with GAAP, will be valued
either at their readily ascertainable market value, or in the absence of readily
ascertainable market value, by the good faith estimate of Abbingdon - II
Partners. The certificate or report of accountants shall be free of
qualifications (other than any consistency qualification that may result from a
change in the method used to prepare the financial statements as to which such
accountants concur and except as noted above with respect to securities for
which there is no readily ascertainable market value) and shall not indicate the
occurrence or existence of any event, condition or contingency which would
materially impair the prospect of payment or performance of any covenant,
agreement or duty of such Guarantor under any of the Loan Documents.
(b) Each Guarantor shall furnish or cause to be furnished to
the Bank, in addition to all other information as the Bank may reasonably
request, as soon as available and in any event within forty-five (45) calendar
days after the end of each fiscal quarter in each fiscal year or other times as
the Bank may reasonably request, a statement setting forth the ratio of (a) the
sum of (i) Guaranteed Obligations for which such Guarantor is liable and (ii)
the amount of all commitments of such Guarantor to make future advances or loans
and all other amounts pursuant to any Guaranty for which such Guarantor is
liable, in either case pursuant to any agreement to which such Guarantor is a
party or by which it is bound as of the end of such fiscal quarter; to (b) cash
as of the end of such fiscal quarter and capital subject to call without right
of setoff or counterclaim as of the end of such fiscal quarter, certified by the
Chief Financial Officer of such Guarantor.
(c) Concurrently with the financial statements of each
Guarantor furnished to the Bank pursuant to Section (a) above of this Section
4.15, each Guarantor shall furnish a certificate, signed by the Chief Financial
Officer of such Guarantor, to the effect that, (i) the representations and
warranties of the Guarantor contained in Exhibit B of the Discretionary Line
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Agreement and in this Agreement are true on and as of the date of such
certificate with the same effect as though such representations and warranties
had been made on and as of such date (except representations and warranties
which expressly relate solely to an earlier date or time) and (ii) the Guarantor
has performed and complied with all applicable covenants contained in Exhibits C
and D of the Discretionary Line Agreement and this Agreement.
4.16 Nonrecourse. No partner of any Guarantor or any partner of a
general partner of any Guarantor shall have any personal liability for payment
of the Guaranteed Obligations, and in any action or suit to collect the
Guaranteed Obligations, the Bank shall not seek any in personam judgment against
any partner of any Guarantor or any partner of a general partner of any
Guarantor or any judgment for a deficiency against any such partner. Nothing
contained in this Section shall be construed to impair the validity of the
Guaranteed Obligations or this Agreement or affect or impair in any way the
right of the Bank to exercise its rights and remedies under the Discretionary
Line Agreement, the Note and any other Loan Documents in accordance with their
terms.
4.17 Limitation of Liability. Notwithstanding anything to the
contrary contained herein, the liability of Abbingdon Partners - II as surety
and guarantor hereunder shall be limited to sixty percent (60%) of the
Guaranteed Obligations and the liability of Abbingdon Partners - III as surety
and guarantor hereunder shall be limited to forty percent (40%) of the
Guaranteed Obligations.
[INTENTIONALLY LEFT BLANK]
12
[SIGNATURE PAGE TO THE
GUARANTY AND SURETYSHIP AGREEMENT
(PARTNERSHIP GUARANTY)]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed and delivered as of the date first above written.
GUARANTORS:
ABBINGDON VENTURE PARTNERS
LIMITED PARTNERSHIP - II
By: Abbingdon- II Partners, general
partner of Abbingdon Venture
Partners Limited Partnership - II
By: /s/ Xxxxxxx X. Xxxx
___________________________
Xxxxxxx X. Xxxx,
general partner
ABBINGDON VENTURE PARTNERS
LIMITED PARTNERSHIP - III
By: Abbingdon - II Partners,
general partner of Abbingdon
Venture Partners Limited
Partnership - III
By: /s/ Xxxxxxx X. Xxxx
___________________________
Xxxxxxx X. Xxxx
general partner
