AMENDED AND RESTATED GUARANTY
In consideration of IBJ XXXXXXXX BANK & TRUST COMPANY, a New York
corporation having an office at Xxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("IBJS"), as lender, and each other Bank (as defined below, collectively, the
"Banks") heretofore or hereafter granting any Accommodations (as hereinafter
defined) to WINSTAR GLOBAL PRODUCTS, INC., (the "Debtor"), and for other
valuable consideration, the receipt of which is acknowledged, the undersigned,
WINSTAR COMMUNICATIONS, INC., a Delaware corporation having an office at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Guarantor"), agrees with IBJS, as
agent for the Banks (in such capacity, the "Agent") and on behalf of the Banks,
as follows:
1. Nature of Guaranty; Obligation of Guarantor.
(a) The Guarantor hereby guarantees the payment, without any
setoff or other deduction, of all the Obligations (as hereinafter defined)
(including, without limitation, reasonable attorney's fees and expenses) at any
time accrued with respect thereto; provided, however, that, notwithstanding
anything herein to the contrary, such guaranty is limited to $3,000,000 in the
aggregate.
(b) The guaranty made pursuant to Section 1(a) of this Amended
and Restated Guaranty (the "Guaranty") (i) is unconditional, (ii) is a guaranty
of payment and not of collection, (iii) is independent of and in addition to all
Collateral, (iv) is a continuing guaranty, and (v) shall continue in full force
and effect until indefeasible payment in full of the Obligations and all other
amounts payable under this Guaranty, except insofar as this Guaranty is
terminated as provided for in this Guaranty.
(c) The obligation of the Guarantor with respect to the
guaranty made by the Guarantor pursuant to Section 1(a) of this Guaranty shall
be direct, immediate, absolute, irrevocable and unconditional. The Agent, for
the benefit of the Banks, shall have and may always exercise against the
Guarantor, in accordance with the terms hereof, each right and remedy of a
creditor against a principal debtor upon a past due liquidated obligation.
2. Indemnification. The Guarantor hereby agrees to defend, protect,
indemnify and hold harmless the Agent and the Banks and each of their
Affiliates, officers, directors, employees, agents, attorneys and consultants
(collectively called the "Indemnitees") from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, claims, reasonable costs, expenses and disbursements of any kind or
nature whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel for such Indemnitees in connection with any
investigative, administrative or judicial proceeding, whether or not such
Indemnitees shall be designated a party thereto), imposed on, incurred by, or
asserted against such Indemnitees (whether direct, indirect, economic, special,
punitive, treble or consequential and whether based on any Federal, state, local
or foreign laws or other statutory regulations, including, without limitation,
environmental, securities and commercial laws and regulations, under common law
or equitable principles) in any manner relating to or arising out of this
Guaranty, the Credit Agreement (as hereinafter defined) or any of the other
Related Documents (as hereinafter defined), or any act, event or transaction
related or attendant thereto or contemplated hereby, or any action or inaction
by any Indemnitee hereunder or in connection therewith, any commitment of the
Agent or the Banks under the Credit Agreement, or the making of the loans
provided for thereunder, or the management of such loans, or the use or intended
use of the proceeds of such loans, advances or other financial accommodations
provided thereunder including, in each such case, any allegation of any such
matters, whether meritorious or not (collectively, the "Indemnified Matters");
provided, however, that the Guarantor shall not have any obligation to any
Indemnitee hereunder with respect to Indemnified Matters resulting solely from
the gross negligence or willful misconduct of such Indemnitee. The covenants of
the Guarantor contained in this Section 2 shall survive the payment in full of
all amounts due and payable under this Guaranty, the Credit Agreement or any
other Related Documents and the full satisfaction of all other Obligations. Such
indemnification shall not be subject to any limitation as to amount.
3. Obligations Due Hereunder. Upon and at any time and from time to
time after the occurrence and continuation of any Event of Default (as
hereinafter defined) each portion of the Obligations then owing to the Banks
shall, at the sole option of the Banks, become immediately due and payable from
the Guarantor as though the Obligations had become due, without any further
notice, demand, presentment or protest of any kind.
4. Subrogation and Assignment. Subject to the indefeasible payment in
full of all Obligations, the Guarantor shall be subrogated to the Bank's rights
to receive payments or distributions of cash, property or securities of the
Debtor applicable to the Obligations until the principal of and interest on the
amounts paid under this Guaranty shall be paid in full; and, for the purposes of
such subrogation, no payments or distributions to the Agent, for the benefit of
the Banks, of any cash, property or securities to which the Guarantor would be
entitled, except for the provisions of this Guaranty, and no payment over
pursuant to the provisions of this Guaranty to or
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for the Banks' benefit by the Guarantor, shall, as between the Debtor, its
creditors other than the Agent, the Banks and the Guarantor, be deemed to be a
payment by the Debtor to or on account of the Obligations. Notwithstanding the
foregoing, the Guarantor hereby knowingly, voluntarily and intentionally waives
any rights it may have to be subrogated to the Banks' rights until the latest to
occur of (i) the date all Obligations are finally and irrevocably repaid to the
Banks in full and the Credit Agreement is terminated or (ii) if the Debtor is
subject to a bankruptcy, reorganization or other similar proceeding then two
days beyond that period of time within which an action (whether by adversary
proceeding or otherwise) may be commenced to recover any preferential transfer
or fraudulent conveyance from any transferee; provided, however, if in the event
of such a proceeding the Agent or the Banks are required to pay back any amounts
previously received due to the existence or exercise of the subrogation rights,
the Guarantor will reimburse the Agent, for the benefit of the Banks, for any
such payments promptly upon demand therefor. The Guarantor acknowledges that the
Agent and the Banks have been induced to accept this Guaranty and to enter into
the Credit Agreement and the other Related Documents in part in reliance upon
the provisions of this Section 4.
5. Reinstatement of Obligations. Each or any portion of the Obligations
that is (a) paid by any money received or applied by the Agent or the Banks
(including, but not limited to, any such money constituting, or received or
applied because of the existence of, the Collateral) and later returned by or
otherwise recovered from the Agent or the Banks as a direct or indirect result
of any Claim (as hereinafter defined) or (b) satisfied by the Agent's or Banks'
retention of any Collateral that is later returned by or otherwise recovered
from the Agent or the Banks as a direct or indirect result of any Claim, shall
be reinstated as part of the Obligations for purposes of this Guaranty as of the
date it originally arose and for purposes of each statute of limitations with
respect to any action or other legal proceeding by the Agent or the Banks
against the Guarantor relating to this Guaranty as of the date of such return or
other recovery of such money or Collateral.
6. Payments. All payments due from and to be made by the Guarantor
hereunder shall be made in Immediately Available Funds (as hereinafter defined)
at the office of the Agent in New York as set forth above.
7. Expenses. The Guarantor shall pay to the Agent, for the benefit of
the Banks, on demand each reasonable cost and expense incurred by the Agent and
the Banks in endeavoring to enforce any indebtedness, liability or obligation of
the Guarantor pursuant to this Guaranty or preserve or exercise any right or
remedy against the Guarantor pursuant to this Guaranty (including, but not
limited to, reasonable attorney's fees and
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expenses); provided, however, that the Guarantor shall not have any obligation
to the Agent or the Banks to pay such costs and expenses if such costs and
expenses were incurred solely due to the Agent's or the Banks' gross negligence
or willful misconduct. Such payment shall not be subject to any limitation as to
amount, other than as set forth in this Section 7.
8. Cumulative Nature and Nonexclusive Exercise of Rights and Remedies.
All rights and remedies of the Agent and the Banks pursuant to this Guaranty or
otherwise shall be cumulative, and no such right or remedy shall be exclusive of
any other such right or remedy. No single or partial exercise by the Agent or
the Banks of any right or remedy pursuant to this Guaranty or otherwise shall
preclude any other or further exercise thereof, or any exercise of any other
such right or remedy, by the Agent, for the benefit of the Banks.
9. Entire Agreement; Modification; Termination; Nonimpairment; Certain
Covenants and Waivers; Effect of and on Other Writings.
(a) This Guaranty, the Credit Agreement and the other Related
Documents contain the entire agreement between the Agent, the Banks and the
Guarantor with respect to the subject matter of this Guaranty, and supersede
each course of dealing or other conduct heretofore pursued, accepted or
acquiesced in, and each oral or written agreement and representation heretofore
made, by the Agent or the Banks with respect thereto, whether or not relied or
acted upon. No modification of this Guaranty agreed to by the Agent, for the
benefit of the Banks, shall be effective unless made in a writing duly executed
by the Agent and the Banks and specifically referring to each provision of this
Guaranty being modified.
(b) The guaranty made pursuant to Section 1(a) of this Guaranty shall not
be modified or terminated as to the Guarantor by, nor shall such guaranty, or
any indebtedness, liability, obligation, right or remedy relating thereto be
impaired, limited or otherwise affected by, (i) any extension of the Obligations
or of any portion thereof, regardless of the length of such extension and
regardless of whether such extension was preceded by another or others, (ii) any
renewal, refinancing, modification, or compromise of, or any grant of any
participation in, the Obligations or any portion thereof, (iii) any modification
or termination of any writing relating to the Obligations, to any portion
thereof or to any Collateral, (iv) any acceptance of any Other Obligor (as
hereinafter defined), (v) any replacement, release or discharge of, or any
modification of any indebtedness, liability or obligation of, any Other Obligor
or any of the Debtor, (vi) any requirement that the Agent or the Banks protect,
secure, perfect or insure any security interests or liens on the Collateral or
(vii) any exercise, delay in the exercise or waiver
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of, any failure to exercise, or any forbearance or other indulgence relating to,
any right or remedy of the Agent, the Banks or other Person (as hereinafter
defined) against the Guarantor or the Debtor or, relating to the Obligations, to
any portion thereof or to the Collateral.
10. Representations and Warranties. The Guarantor hereby
represents and warrants that:
(a) No agreement or other promises with respect to any
limitations on its obligations hereunder have been made to it by the Agent or
the Banks, other than as expressly set forth in this Guaranty.
(b) The execution, delivery and performance by the Guarantor
of this Guaranty does not contravene any law or any contractual restriction
binding on or affecting the Guarantor.
(c) No consent of any Person, and no consent, approval,
authorization, permit or license from any Federal, state or local regulatory
authority, is required to be obtained or made by the Guarantor in connection
with the making or performance of this Guaranty and the transactions
contemplated hereby.
(d) This Guaranty is a legal, valid and binding obli-
gation of the Guarantor enforceable against the Guarantor in accordance with its
terms, except as limited by applicable fraudulent conveyance law or bankruptcy
reorganization, insolvency, moratorium or similar laws affecting the enforcement
of creditors' rights and the availability of equitable remedies (regardless of
whether such enforceability is considered in a proceeding at law or equity).
(e) There is no pending or to the best of its knowledge,
threatened action or proceeding against the Guarantor before any court,
governmental agency or arbitrator, which would adversely affect the ability of
the Guarantor to perform its obligations under this Guaranty.
(f) The Guarantor has the requisite legal capacity to
perform its obligations hereunder and is not in default with
respect hereto.
(g) The granting of the Accommodations by the Banks and the
assumption by the Guarantor of its obligations hereunder will result in a
financial benefit to the Guarantor.
(h) All Obligations payable by the Guarantor hereunder will,
upon demand for payment by the Banks, constitute direct and unconditional
obligations of the Guarantor.
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11. Governing Law; Jurisdiction; Certain Consents and Waivers; Claim. This
Guaranty shall be governed by and con- strued, interpreted and enforced in
accordance with the internal laws of the State of New York, without regard to
principles of conflicts of law. Each action and other legal proceeding re-
lating to this Guaranty commenced by the Agent, for the benefit of the Banks,
may be litigated in any court that is either a court of record of the State of
New York or a court of the United States located in the State of New York. The
Guarantor hereby (i) consents in each action and other legal proceeding relating
to this Guaranty commenced by the Agent, for the benefit of the Banks, to the
personal jurisdiction of any court that is either a court of record of the State
of New York or a court of the United States located in the State of New York,
(ii) waives each objection to the laying of venue of any such action or other
legal proceeding, (iii) waives personal service of process in each such action
and other legal proceeding, (iv) consents to the making of service of process in
each such action and other legal proceeding by overnight courier or registered
mail directed to the Guarantor at the last address of the Guarantor shown in the
records relating to this Guaranty maintained by the Agent, with such service of
process to be deemed complete on the next business day, if sent by overnight
courier, or five business days after the mailing thereof, and (v) WAIVES IN EACH
SUCH ACTION AND OTHER LEGAL PROCEEDING EACH RIGHT TO TRIAL BY JURY AND EACH
RIGHT TO ASSERT ANY COUNTERCLAIM OR SETOFF. THE AGENT AND THE BANKS ALSO HEREBY
WAIVE IN EACH SUCH ACTION AND OTHER LEGAL PROCEEDING EACH RIGHT TO TRIAL BY
JURY. The Guarantor shall give notice to the Agent promptly upon the Guarantor
having actual knowledge of or specific claim against the Agent or the Banks or
their officers, directors, employees, agents, Affiliates or any Person under the
Agent's or Banks' control, by the Guarantor, for any action or failure to act by
the Agent and the Banks, or any officer, director, employee, agent or Affiliate
of the Agent and the Banks, or any Person under the Agent's and the Banks'
control. The failure to disclose any such specific claim within 180 days of such
actual knowledge thereof shall constitute an irrevocable waiver and forgiveness
of such claim by the Guarantor.
12. Limitation of Liability. No claim may be made by the Guarantor or
any other Person against the Agent or the Banks or their Affiliates, directors,
officers, employees, attorneys or agents for any special, indirect,
consequential, punitive or treble damages in respect of any claim for breach of
contract or any other theory of liability arising out of or related to the
transactions contemplated by this Guaranty, the Credit Agreement, or any other
Related Document, or any act, omission or event occurring in connection herewith
or therewith; and the Guarantor hereby waives, releases and agrees not to sue
upon any claim for any and all special, indirect, consequential, punitive or
treble
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damages, whether or not accrued and whether or not known or suspected to
exist in his favor.
13. Notices. Each notice to, and each demand upon, the Guarantor by the
Agent or the Banks relating to this Guaranty and each notice to, and each demand
upon, the Agent or the Banks by the Guarantor relating to this Guaranty and any
notice to the Agent or the Banks of the bankruptcy, insolvency or consummation
of any other similar proceeding of the Guarantor, shall specifically refer to
this Guaranty, and shall be delivered in person in writing or sent by overnight
courier or registered mail, postage prepaid, to the addresses set forth on the
introductory paragraph herein, with such notice to be deemed complete on the
next business day, if sent by overnight courier, or five business days after the
mailing thereof.
14. Severability. If any provision of this Guaranty shall be prohibited
by or invalid under such law, it shall be deemed modified to conform to the
minimum requirements of the law of the State of New York, or, if for any reason
it is not deemed so modified, it shall be prohibited or invalid only to the
extent of such prohibition or invalidity without the remainder thereof or any
other such provision being prohibited or invalid.
15. Right of Setoff. Upon the occurrence and during the continuance of
any Event of Default which results in any amount becoming due and payable under
the Credit Agreement and upon demand being made by the Agent, for the benefit of
the Banks, on the Guarantor in accordance with the provisions of Section 3 of
this Guaranty, the Agent, for the benefit of the Banks, is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to
setoff and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by the Banks to or for the credit or the account of the Guarantor, against any
and all of the obligations of the Guarantor now or hereafter existing under this
Guaranty. The Agent xxxxxx agrees promptly to notify the Guarantor after any
such setoff and application made by the Agent; provided, however, that the
failure to give such notice shall not affect the validity of such setoff and
application. The rights of the Agent and the Banks under this Section 15 are in
addition to other rights and remedies (including, without limitation, other
rights of setoff) which the Agent and the Banks may have.
16. Successors; Binding Effect; Transfer of Interest. This Guaranty shall
(i) be binding upon the Guarantor and its Successors on a joint and several
basis, and (ii) inure to the benefit of and be enforceable by the Agent and the
Banks and their Successors. Without limiting the generality of the foregoing
clause (ii), the Agent and the Banks may assign or otherwise transfer their
interest hereunder and under the
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documents evidencing the Accommodations to any other person in accordance with
the terms of the Credit Agreement, and such other person shall thereupon become
vested with all the rights in respect thereof granted to the Agent and the Banks
herein or otherwise. The Guarantor may not assign or transfer all or any part of
its rights or obligations under this Guaranty.
17. Definitions. For purposes of this Guaranty:
(a) "Accommodations" means all loans, credits and other
financial accommodations granted by the Banks or their Successors and
participants to the Debtor pursuant to the Credit Agreement.
(b) "Affiliate" has the meaning set forth in the
Credit Agreement.
(c) "Banks" shall mean IBJ Xxxxxxxx Bank & Trust Company, as a
lender, and each other lender which may hereafter execute and deliver an
instrument of assignment with respect to the Loans as defined under the Credit
Agreement.
(d) "Claim" means any claim, whether asserted affirma-
tively, as a counterclaim, setoff or defense or otherwise and whether now
existing or hereafter arising, for the return or for any other recovery of any
money received or applied by the Agent, for the benefit of the Banks,
(including, but not limited to, any such money constituting, or received or
applied because of the existence of, any Collateral) in payment of the
Obligations or of any portion thereof.
(e) "Collateral" means "Collateral" as defined in the
Credit Agreement.
(f) "Credit Agreement" means the Amended and Restated Credit
and Security Agreement dated as of the date hereof among the Debtor, the Banks
and the Agent, which Credit Agreement amends and restates the Prior Credit
Agreement, as the same may from time to time be amended, extended, supplemented,
restated or otherwise modified or replaced.
(g) "Event of Default" means an Event of Default, as
such term is defined in the Credit Agreement.
(h) "Immediately Available Funds" means lawful money
of the United States of America immediately available for use by
the Banks in New York, New York.
(i) "Obligations" means the Revolving Loans paid by the Agent
and the Banks to the Debtor under or due to the Accommodations constituting
Overadvances under the Credit Agreement, including, but not limited to, with
respect to such
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Revolving Loans constituting Overadvances (A) all extensions, renewals,
refinancings, modifications and replacements of any such indebtedness, liability
or obligation herein described that are made after any assignment or other
transfer thereof, (B) all interest and other charges (including without
limitation reasonable legal fees and expenses) that accrue with respect to any
such indebtedness, liability or obligation described herein or with respect to
any extension, renewal, refinancing, modification or replacement thereof after
any assignment or other transfer thereof and (C) proceeds of each of the
foregoing.
(j) "Other Obligor" means, other than the Debtor or the
Guarantor, any Person who or which is now or hereafter directly or indirectly
liable for the payment of the Obligations or of any portion thereof.
(k) "Person" means any individual, corporation, partnership,
joint venture, trust, unincorporated association, government or political
subdivision or other entity.
(l) "Prior Credit Agreement" means the Loan and Security
Agreement dated as of August 5, 1994 between Century Business Credit Corporation
("Century") and the Debtor, formerly known as Beauty Labs, Inc., as amended from
time to time.
(m) "Related Documents" has the meaning set forth in
the Credit Agreement.
(n) "Successor" means, with respect to any Person, (i) if such
Person is an individual, the estate of such Person, (ii) if such Person is not
an individual, any direct or indirect suc-
cessor of such Person (including, but not limited to, any other corporation into
which such Person is hereafter directly or indirectly merged, consolidated or
otherwise absorbed) or (iii) any other Person to whom or to which all or
substantially all of the assets of such Person are hereafter directly or
indirectly assigned or otherwise transferred.
18. Amended and Restated. This Amended and Restated Guaranty amends and
restates, in its entirety, the Limited Guaranty delivered by the Guarantor to
Century, dated as of August 5, 1994, which Limited Guaranty was assigned to the
Banks by Century.
Dated: August 9, 1996
NOTICE: FOR PURPOSES OF THIS
GUARANTY, "OBLIGATIONS" IS
NOT LIMITED TO PRESENTLY EXIST- WINSTAR COMMUNICATIONS, INC.
ING INDEBTEDNESS, LIABILITIES
AND OBLIGATIONS.
By: Xxxxxx X. Xxxxx
Its: Vice President
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ACKNOWLEDGMENT
STATE OF NEW YORK )
): SS.
COUNTY OF )
On the 9th day of August in the year 1996, before me personally
came Xxxxxx X. Xxxxx
/ / Individual to me known and known to me to be the person described in
and who executed the above instrument, and she acknowledged to me
that she executed the same.
/ / Partnership to me known and known to me to be a member of the
partnership described in and which executed the above instrument, and
she duly acknowledged to me that she executed the above instrument for
and on behalf of said partnership.
/x / Corporation to me known, who, being by me duly sworn, did depose and
say that he resides at that he is the vice president of the
corporation described in and which executed the above instrument; and
that she signed her name thereto by order of the board of directors of
said corporation.
Notary Public
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