EXECUTION COPY
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty Agreement"), dated as of
January 28, 2000, is made by EACH OF THE UNDERSIGNED (each a "Guarantor" and
collectively the "Guarantors") to BANK OF AMERICA, N.A., a national banking
association organized and existing under the laws of the United States, as agent
(in such capacity, the "Revolving Credit Agent") for each of the lenders (the
"Lenders") now or hereafter party to the Credit Agreement (as defined below),
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA (together with its successors and
assigns "Prudential"), SUNTRUST BANK and ATLANTIC FINANCIAL GROUP, LTD.
(together, the "Senior Lease Creditor"), and XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK ("Xxxxxx"), WILMINGTON TRUST COMPANY ("WTC"), not individually but
solely as General Collateral Agent (in such capacity, and together with its
agents and successors and permitted assigns, the "General Collateral Agent") for
each of the General Secured Parties (as defined in the Intercreditor Agreement
referenced below) and BANK OF AMERICA, N.A., not individually but solely as
Priority Collateral Agent (in such capacity, and together with its agents and
successors, the "Priority Collateral Agent") for each of the Priority Secured
Parties. All capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to such terms in the Intercreditor Agreement dated of even
date herewith among the Revolving Credit Agent, Prudential, the Senior Lease
Creditor, Xxxxxx, the General Collateral Agent, Designated Collateral Subagent
and the Priority Collateral Agent.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof among Cone Xxxxx Corporation (the "Borrower"), the Revolving Credit Agent
and the Lenders (as amended, supplemented or restated from time to time, the
"Credit Agreement"), the Lenders are making and have committed to make Revolving
Loans to the Borrower; and
WHEREAS, pursuant to that certain Note Agreement dated as of August 13,
1992 between the Borrower and Prudential (as amended, supplemented or restated
from time to time, the "Senior Note Agreement"), the Borrower has issued and
sold the Senior Notes to Prudential; and
WHEREAS, pursuant to that certain Master Lease Agreement dated as of
October 24, 1994 between the Borrower and Atlantic Financial Group, Ltd. (as
successor to TCB Realty II Corporation) ("Atlantic Financial") (as amended,
supplemented or restated from time to time, the "Master Lease"), and the Loan
Agreement (up to $16,000,000) dated as of October 24, 1994 (as amended,
supplemented or restated from time to time, the "Development Loan Agreement")
between Atlantic Financial and SunTrust Bank ("SunTrust", as successor to
Citicorp Leasing, Inc.), the Borrower has incurred certain obligations to
Atlantic Financial and to SunTrust for payment of rent and other amounts due
thereunder; the Master Lease, the Development Loan Agreement and the other Key
Documents (as defined in the Development Loan Agreement) are referred to
collectively herein as the "Senior Lease Documents"; and
WHEREAS, pursuant to that certain ISDA Master Agreement dated as of
July 20, 1998 between the Borrower and Xxxxxx as supplemented pursuant to that
certain letter agreement dated as of July 20, 1998 (as from time to time
amended, supplemented or replaced, the "Xxxxxx Swap Agreement"), the Borrower
has incurred obligations and liabilities to Xxxxxx in respect of interest rate
hedging agreements thereunder, including, but not limited to (i) the obligations
of the Borrower to make periodic payments to Xxxxxx in accordance with the terms
of the Xxxxxx Swap Agreement and (ii) the obligation of the Borrower to make a
termination payment to Xxxxxx under Section 6(e) of the Xxxxxx Swap Agreement,
provided, however, that in the event that the obligations to be made by the
Borrower to Xxxxxx under (i) and (ii) above are greater than $3,000,000, the
amount of such payments shall be deemed to be $3,000,000 (the "Xxxxxx Swap
Obligations"); and
WHEREAS, it is a condition to (i) the Lenders making available the
Revolving Loans to the Borrower, (ii) Prudential entering into the amendment to
the Senior Note Documents and (iii) the Senior Lease Creditor amending the
Senior Lease Documents that the parties hereto enter into this Agreement; and
WHEREAS, each Guarantor is, directly or indirectly, a wholly owned
Subsidiary of the Borrower, has materially benefited from the credit extended to
the Borrower pursuant to the Senior Notes, the Senior Lease Obligations and the
Xxxxxx Swap Obligations, and will materially benefit from the Revolving Loans
made and to be made under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
1. Guaranty. Each Guarantor hereby jointly and severally,
unconditionally, absolutely, continually and irrevocably guarantees the payment
and performance in full of the Borrower's Liabilities (as defined below) to each
of the Revolving Credit Agent for the benefit of the Lenders, Prudential, the
Senior Lease Creditor and Xxxxxx (together with the Lenders collectively
referred to as the "Secured Parties"). For all purposes of this Guaranty
Agreement, "Borrower's Liabilities" means: (a) the Borrower's prompt payment in
full, when due or declared due and at all such times, of all Senior Debt
Obligations and all other amounts pursuant to the terms of the Senior Credit
Documents, the Senior Lease Documents, the Senior Note Documents and the Xxxxxx
Swap Agreement heretofore, now or at any time or times hereafter owing, arising,
due or payable from the Borrower to any one or more of the Secured Parties,
including principal, interest, premiums and fees (including, but not limited to,
loan fees and attorneys' fees and expenses); and (b) the Borrower's prompt, full
and faithful performance, observance and discharge of each and every agreement,
undertaking, covenant and provision to be performed, observed or discharged by
the Borrower under the Senior Credit Documents, the Senior Lease Documents, the
Senior Note Documents and the Xxxxxx Swap Agreement. The Guarantors' obligations
to the Secured Parties under this Guaranty Agreement are hereinafter
collectively referred to as the "Guarantors' Obligations" and, with respect to
each Guarantor individually, the "Guarantor's Obligations". Notwithstanding the
foregoing, the liability of each Guarantor individually with respect to its
Guarantor's Obligations shall be limited to an aggregate amount equal to the
largest amount that would not render its obligations hereunder
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subject to avoidance under Section 548 of the United States Bankruptcy Code or
any comparable provisions of any applicable state law.
Each Guarantor agrees that it is jointly and severally, directly and
primarily liable (subject to the limitation in the immediately preceding
sentence) for the Borrower's Liabilities.
The Guarantors' Obligations are secured by various Security Documents
referred to in the Credit Agreement, including without limitation the General
Security Instruments and the Priority Security Instruments to which such
Guarantor is a party.
2. Payment. If the Borrower shall default in payment or performance of
any of the Borrower's Liabilities, whether principal, interest, premium, fee
(including, but not limited to, loan fees and attorneys' fees and expenses), or
otherwise, when and as the same shall become due, and after expiration of any
applicable grace period, whether according to the terms of any Transaction
Document, by acceleration, or otherwise, or upon the occurrence and during the
continuance of any Event of Default, then any or all of the Guarantors will,
upon demand thereof by either the General Collateral Agent or the Priority
Collateral Agent, or both, pursuant to the terms of the Intercreditor Agreement,
fully pay to either the General Collateral Agent or the Priority Collateral
Agent, or both, as applicable, for the benefit of the respective Secured Parties
and distribution thereto in accordance with the terms of the Intercreditor
Agreement, subject to any restriction on each Guarantor's Obligations set forth
in Section 1 hereof, an amount equal to all the Borrower's Liabilities then due
and owing.
3. Absolute Rights and Obligations. This is a guaranty of payment and
not of collection. The Guarantors' Obligations under this Guaranty Agreement
shall be joint and several, absolute and unconditional irrespective of, and each
Guarantor hereby expressly waives, to the extent permitted by law, any defense
to its obligations under this Guaranty Agreement and all Security Documents to
which it is a party by reason of:
(a) any lack of legality, validity or enforceability of any
Transaction Document, or of any other agreement or instrument creating,
providing security for, or otherwise relating to any of the Guarantors'
Obligations, any of the Borrower's Liabilities, or any other guaranty
of any of the Borrower's Liabilities (the Transaction Documents and all
such other agreements and instruments being collectively referred to as
the "Related Agreements");
(b) any action taken under any of the Related Agreements, any
exercise of any right or power therein conferred, any failure or
omission to enforce any right conferred thereby, or any waiver of any
covenant or condition therein provided;
(c) any acceleration of the maturity of any of the Borrower's
Liabilities, of the Guarantor's Obligations of any other Guarantor, or
of any other obligations or liabilities of any Person under any of the
Related Agreements;
(d) any release, exchange, non-perfection, lapse in
perfection, disposal, deterioration in value, or impairment of any
security for any of the Borrower's Liabilities,
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for any of the Guarantor's Obligations of any Guarantor, or for any
other obligations or liabilities of any Person under any of the Related
Agreements;
(e) any dissolution of the Borrower or any Guarantor or any
other party to a Related Agreement, or the combination or consolidation
of the Borrower or any Guarantor or any other party to a Related
Agreement into or with another entity or any transfer or disposition of
any assets of the Borrower or any Guarantor or any other party to a
Related Agreement;
(f) any extension (including without limitation extensions of
time for payment), renewal, amendment, restructuring or restatement of,
and any acceptance of late or partial payments under any Transaction
Document or any other Related Agreement, in whole or in part;
(g) the existence, addition, modification, termination,
reduction or impairment of value, or release of any other guaranty (or
security therefor) of the Borrower's Liabilities (including without
limitation the Guarantor's Obligations of any other Guarantor and
obligations arising under any other Facility Guaranty now or hereafter
in effect);
(h) any waiver of, forbearance or indulgence under, or other
consent to any change in or departure from any term or provision
contained in any Transaction Document or any other Related Agreement,
including without limitation any term pertaining to the payment or
performance of any of the Borrower's Liabilities, any of the
Guarantor's Obligations of any other Guarantor, or any of the
obligations or liabilities of any party to any other Related Agreement;
(i) any other circumstance whatsoever (with or without notice
to or knowledge of any Guarantor) which may or might in any manner or
to any extent vary the risks of such Guarantor, or might otherwise
constitute a legal or equitable defense available to, or discharge of,
a surety or a guarantor, including without limitation (A) any right to
require or claim that resort be had to the Borrower or any other Credit
Party or to any collateral in respect of the Borrower's Liabilities or
Guarantors' Obligations, and (B) any defense available to the Guarantor
arising under North Carolina General Statutes Sections 26-7 through
26-9.
It is the express purpose and intent of the parties hereto that this Guaranty
Agreement and the Guarantors' Obligations hereunder shall be absolute and
unconditional under any and all circumstances and shall not be discharged except
by payment as herein provided.
4. Currency and Funds of Payment. All Guarantors' Obligations will be
paid in lawful currency of the United States of America and in immediately
available funds, regardless of any law, regulation or decree now or hereafter in
effect that might in any manner affect the Borrower's Liabilities, or the rights
of any Secured Party with respect thereto as against the Borrower, or cause or
permit to be invoked any alteration in the time, amount or manner of payment by
the Borrower of any or all of the Borrower's Liabilities.
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5. Events of Default. Without limiting the provisions of Section 2
hereof, in the event that there shall occur and be continuing an Event of
Default, then notwithstanding any collateral or other security or credit support
for the Borrower's Liabilities, at the election of the Required Enforcement
General Secured Parties and written direction thereby to the General Collateral
Agent, or at the election of the Required Priority Secured Parties and written
direction thereby to the Priority Collateral Agent, or both, all pursuant to the
Intercreditor Agreement, and without notice thereof or demand therefor, the
Guarantors' Obligations shall immediately be and become due and payable.
6. Subordination. Until this Guaranty Agreement is terminated in
accordance with Section 23 hereof, each Guarantor hereby unconditionally
subordinates all present and future debts, liabilities or obligations now or
hereafter owing to such Guarantor (i) of the Borrower, to the payment in full of
the Borrower's Liabilities, (ii) of every other Guarantor (an "obligated
guarantor"), to the payment in full of the Guarantors' Obligations of such
obligated guarantor, and (iii) of each other Person now or hereafter
constituting a Credit Party, to the payment in full of the obligations of such
Credit Party owing to any Secured Party and arising under the respective
Transaction Documents. All amounts due under such subordinated debts,
liabilities, or obligations shall, upon the occurrence and during the
continuance of an Event of Default, be collected and, upon request by the
General Collateral Agent at the election of, and written direction by, the
Required Enforcement General Secured Parties, paid over forthwith to the General
Collateral Agent for the benefit of the General Secured Parties, or upon request
by the Priority Collateral Agent at the election of, and written direction by,
the Required Priority Secured Parties, paid over forthwith to the Priority
Collateral Agent for the benefit of the Priority Secured Parties, in each
instance on account of the Borrower's Liabilities and subject to the terms of
the Intercreditor Agreement, the Guarantors' Obligations, or such other
obligations, as applicable, and, after such request and pending such payment,
shall be held by such Guarantor as agent and bailee of the Secured Parties
separate and apart from all other funds, property and accounts of such
Guarantor.
7. Suits. Each Guarantor from time to time shall pay to the General
Collateral Agent or the Priority Collateral Agent (collectively, the "Agents")
or both, as applicable, for the benefit of the General Secured Parties or the
Priority Secured Parties, or both, as applicable, on demand, at such Agent's
place of business set forth in the Intercreditor Agreement or such other address
as such Agent shall give notice of to such Guarantor, the Guarantors'
Obligations as they become or are declared due, and in the event such payment is
not made forthwith, such Agent or both Agents may proceed to suit against any
one or more or all of the Guarantors. At the election of either or both Agents,
as applicable, one or more and successive or concurrent suits may be brought
hereon against any one or more or all of the Guarantors, whether or not suit has
been commenced against the Borrower, any other Guarantor, or any other Person
and whether or not the Secured Parties have taken or failed to take any other
action to collect all or any portion of the Borrower's Liabilities or have taken
or failed to take any actions against any collateral securing payment or
performance of all or any portion of the Borrower's Liabilities, and
irrespective of any event, occurrence, or condition described in Section 3
hereof.
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8. Set-Off and Waiver. Each Guarantor waives any right to assert
against any Secured Party as a defense, counterclaim, set-off or cross claim,
any defense (legal or equitable) or other claim which such Guarantor may now or
at any time hereafter have against the Borrower or the Secured Parties without
waiving any additional defenses, set-offs, counterclaims or other claims
otherwise available to such Guarantor. Each Guarantor agrees that each Secured
Party shall have a lien for all the Guarantor's Obligations upon all deposits or
deposit accounts, of any kind, or any interest in any deposits or deposit
accounts, now or hereafter pledged, mortgaged, transferred or assigned to such
Secured Party or otherwise in the possession or control of such Secured Party
for any purpose (other than solely for safekeeping) for the account or benefit
of such Guarantor, including any balance of any deposit account or of any credit
of such Guarantor with the Secured Party, whether now existing or hereafter
established, and hereby authorizes each Secured Party from and after the
occurrence of an Event of Default at any time or times with or without prior
notice to apply such balances or any part thereof to such of the Guarantor's
Obligations to the Secured Parties then due and in such amounts as provided for
in the Credit Agreement or otherwise as they may elect. For the purposes of this
Section 8, all remittances and property shall be deemed to be in the possession
of a Secured Party as soon as the same may be put in transit to it by mail or
carrier or by other bailee.
9. Waiver of Notice; Subrogation.
(a) Each Guarantor hereby waives to the extent permitted by
law notice of the following events or occurrences: (i) acceptance of
this Guaranty Agreement; (ii) the Secured Parties' heretofore, now or
from time to time hereafter making Revolving Loans and otherwise
loaning monies or giving or extending credit to or for the benefit of
the Borrower, whether pursuant to any Transaction Document or Related
Agreement or any amendments, modifications, or supplements thereto, or
replacements or extensions thereof; (iii) presentment, demand, default,
non-payment, partial payment and protest; and (iv) any other event,
condition, or occurrence described in Section 3 hereof. Each Guarantor
agrees that each Secured Party may heretofore, now or at any time
hereafter do any or all of the foregoing in such manner, upon such
terms and at such times as each Secured Party, in its sole and absolute
discretion, deems advisable, without in any way or respect impairing,
affecting, reducing or releasing such Guarantor from its Guarantor's
Obligations, and each Guarantor hereby consents to each and all of the
foregoing events or occurrences.
(b) Each Guarantor hereby agrees that payment or performance
by such Guarantor of its Guarantor's Obligations under this Guaranty
Agreement may be enforced by either or both of the Agents on behalf of
the General Secured Parties or the Priority Secured Parties or both, as
applicable, upon demand by such Agent to such Guarantor without the
Agent being required, such Guarantor expressly waiving to the extent
permitted by law any right it may have to require such Agent, to (i)
prosecute collection or seek to enforce or resort to any remedies
against the Borrower or any other Guarantor or any other guarantor of
the Borrower's Liabilities, or (ii) seek to enforce or resort to any
remedies with respect to any security interests, Liens or encumbrances
granted to either Agent or any Secured Party or other party to a
Related Agreement by the Borrower, any other Guarantor or any other
Person on account of the Borrower's Liabilities or any
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guaranty thereof, IT BEING EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND
AGREED TO BY SUCH GUARANTOR THAT DEMAND UNDER THIS GUARANTY AGREEMENT
MAY BE MADE BY EITHER AGENT, AND THE PROVISIONS HEREOF ENFORCED BY
EITHER AGENT, EFFECTIVE AS OF THE FIRST DATE ANY EVENT OF DEFAULT
OCCURS AND IS CONTINUING.
(c) Each Guarantor further agrees with respect to this
Guaranty Agreement that it shall have no right of subrogation,
reimbursement, contribution or indemnity, nor any right of recourse to
security for the Borrower's Liabilities unless and until 93 days
immediately following the Termination Date shall have elapsed without
the filing or commencement, by or against any Credit Party, of any
state or federal action, suit, petition or proceeding seeking any
reorganization, liquidation or other relief or arrangement in respect
of creditors of, or the appointment of a receiver, liquidator, trustee
or conservator in respect to, such Credit Party or its assets. This
waiver is expressly intended to prevent the existence of any claim in
respect to such subrogation, reimbursement, contribution or indemnity
by any Guarantor against the estate of any other Credit Party within
the meaning of Section 101 of the Bankruptcy Code, in the event of a
subsequent case involving any other Credit Party. If an amount shall be
paid to any Guarantor on account of such rights at any time prior to
termination of this Guaranty Agreement in accordance with the
provisions of Section 23 hereof, such amount shall be held in trust for
the benefit of the Secured Parties and shall forthwith be paid to the
Agents, for the benefit of the Secured Parties, to be credited and
applied upon the Guarantors' Obligations, whether matured or unmatured,
in accordance with the terms of the Intercreditor Agreement. The
agreements in this subsection shall survive repayment of all of the
Guarantors' Obligations, the termination or expiration of this Guaranty
Agreement in any manner, including but not limited to termination in
accordance with Section 23 hereof, and occurrence of the Security
Termination Date.
10. Effectiveness; Enforceability. This Guaranty Agreement shall be
effective as of the date first above written and shall continue in full force
and effect until termination in accordance with Section 23 hereof. Any claim or
claims that any Secured Party may at any time hereafter have against a Guarantor
under this Guaranty Agreement may be asserted by the respective Agent on behalf
of such Secured Party by written notice directed to such Guarantor in accordance
with Section 25 hereof.
11. Representations and Warranties. Each Guarantor warrants and
represents to the Secured Parties that it is duly authorized to execute, deliver
and perform this Guaranty Agreement; that this Guaranty Agreement has been duly
executed and delivered on behalf of such Guarantor by its duly authorized
representatives; that this Guaranty Agreement is legal, valid, binding and
enforceable against such Guarantor in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles; and that such Guarantor's
execution, delivery and performance of this Guaranty Agreement do not violate or
constitute a breach of any of its Operating Documents or Organizational
Documents (as each such capitalized term is defined in the Credit Agreement),
any agreement or
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instrument to which such Guarantor is a party, or any law, order, regulation,
decree or award of any governmental authority or arbitral body to which it or
its properties or operations is subject.
12. Expenses. Each Guarantor agrees to be jointly and severally liable
for the payment of all reasonable fees and expenses, including attorneys' fees,
incurred by any Secured Party in connection with the enforcement of this
Guaranty Agreement, whether or not suit be brought.
13. Reinstatement. Each Guarantor agrees that this Guaranty Agreement
shall continue to be effective or be reinstated, as the case may be, at any time
payment received by any Secured Party in respect of any Borrower's Liabilities
is rescinded or must be restored for any reason.
14. Attorney-in-Fact. To the extent permitted by law, each Guarantor
hereby appoints each of the General Collateral Agent and the Designated
Collateral Subagent, for the benefit of the General Secured Parties, and the
Priority Collateral Agent, for the benefit of the Priority Secured Parties, as
such Guarantor's attorney-in-fact for the purposes of carrying out the
provisions of this Guaranty Agreement and taking any action and executing any
instrument which any such Agent may deem necessary or advisable to accomplish
the purposes hereof, which appointment is coupled with an interest and is
irrevocable; provided, that each Agent shall have and may exercise rights under
this power of attorney only upon the occurrence and during the continuance of an
Event of Default.
15. Reliance. Each Guarantor represents and warrants to the Secured
Parties, that: (a) such Guarantor has adequate means to obtain on a continuing
basis (i) from the Borrower, information concerning the Borrower and the
Borrower's financial condition and affairs and (ii) from other reliable sources,
such other information as it deems material in deciding to provide this Guaranty
Agreement ("Other Information"), and has full and complete access to the
Borrower's books and records and to such Other Information; (b) such Guarantor
is not relying on any Secured Party or its or their employees, directors, agents
or other representatives or affiliates, to provide any such information, now or
in the future; (c) such Guarantor has been furnished with and reviewed the terms
of the Transaction Documents as it has requested, is executing this Guaranty
Agreement freely and deliberately, and understands the obligations and financial
risk undertaken by providing this Guaranty Agreement; (d) such Guarantor has
relied solely on the Guarantor's own independent investigation, appraisal and
analysis of the Borrower, the Borrower's financial condition and affairs, the
"Other Information", and such other matters as it deems material in deciding to
provide this Guaranty Agreement and is fully aware of the same; and (e) such
Guarantor has not depended or relied on any Secured Party or its or their
employees, directors, agents or other representatives or affiliates, for any
information whatsoever concerning the Borrower or the Borrower's financial
condition and affairs or any other matters material to such Guarantor's decision
to provide this Guaranty Agreement, or for any counseling, guidance, or special
consideration or any promise therefor with respect to such decision. Each
Guarantor agrees that no Secured Party has any duty or responsibility
whatsoever, now or in the future, to provide to such Guarantor any information
concerning the Borrower or the Borrower's financial condition and affairs, or
any Other Information, other than as expressly provided herein, and that, if
such Guarantor receives any such information from any Secured Party or its or
their
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employees, directors, agents or other representatives or affiliates, such
Guarantor will independently verify the information and will not rely on any
Secured Party or its or their employees, directors, agents or other
representatives or affiliates, with respect to such information.
16. Rules of Interpretation. The rules of interpretation contained in
Sections 1.2(c) through 1.2(l) of the Credit Agreement shall be applicable to
this Guaranty Agreement and are hereby incorporated by reference. All
representations and warranties contained herein shall survive the delivery of
documents and any extension of credit referred to herein or guaranteed hereby.
17. Entire Agreement. This Guaranty Agreement, together with the
Transaction Documents and the Security Documents, constitutes and expresses the
entire understanding between the parties hereto with respect to the subject
matter hereof, and supersedes all prior negotiations, agreements,
understandings, inducements, commitments or conditions, express or implied, oral
or written, except as herein contained. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof. Except as provided in Section 23, neither this Guaranty
Agreement nor any portion or provision hereof may be changed, altered, modified,
supplemented, discharged, canceled, terminated, or amended orally or in any
manner other than in writing by each of the Required Priority Secured Parties
and the Required General Secured Parties.
18. Binding Agreement; Assignment. This Guaranty Agreement, and the
terms, covenants and conditions hereof, shall be binding upon and inure to the
benefit of the parties hereto, and to their respective heirs, legal
representatives, successors and assigns; provided, however, that no Guarantor
shall be permitted to assign any of its rights, powers, duties or obligations
under this Guaranty Agreement or any other interest herein without the prior
written consent of each of the Required Priority Security Parties and the
Required General Security Parties. Without limiting the generality of the
foregoing sentence of this Section 18, any Secured Party may assign to one or
more Persons, or grant to one or more Persons participations in or to, all or
any part of its rights and obligations under the respective Transaction
Documents (to the extent permitted thereby); and to the extent of any such
assignment or participation such other Person shall, to the fullest extent
permitted by law, thereupon become vested with all the benefits in respect
thereof granted to such Secured Party herein or otherwise, subject however, to
the provisions of the respective Transaction Documents concerning assignments
and participations. All references herein to any Agent shall include any
successor thereof.
19. Severability. The provisions of this Guaranty Agreement are
independent of and separable from each other. If any provision hereof shall for
any reason be held invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity or enforceability of any other provision hereof,
but this Guaranty Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
20. Counterparts. This Guaranty Agreement may be executed in any number
of counterparts each of which when so executed and delivered shall be deemed an
original, and it
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shall not be necessary in making proof of this Guaranty Agreement to produce or
account for more than one such counterpart executed by the Guarantor against
whom enforcement is sought.
21. Indemnification. Without limitation of any other indemnification
provision in any Transaction Document, each Guarantor agrees to indemnify and
hold harmless each Secured Party and each of their affiliates and their
respective officers, directors, employees, agents, and advisors (each, an
"Indemnified Party") from and against any and all claims, damages, losses,
liabilities, costs, and expenses (including, without limitation, reasonable
attorneys' fees) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation or proceeding or preparation of defense in connection therewith) the
Transaction Documents, any of the transactions contemplated herein or therein or
the actual or proposed use of the proceeds of the Loans or other extension of
credit under the Transaction Documents, except to the extent such claim, damage,
loss, liability, cost, or expense is found in a final, non-appealable judgment
by a court of competent jurisdiction to have resulted from such Indemnified
Party's gross negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 22
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by such Guarantor or any other Credit Party,
any of their respective directors, shareholders or creditors, or an Indemnified
Party or any other Person, or any Indemnified Party is otherwise a party thereto
and whether or not the transactions contemplated hereby are consummated. Each
Guarantor agrees that no Indemnified Party shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to it, any of its
subsidiaries or affiliates, or any security holders or creditors thereof arising
out of, related to or in connection with the transactions contemplated herein,
except to the extent that such liability is found in a final non-appealable
judgment by a court of competent jurisdiction to have directly resulted from
such Indemnified Party's gross negligence or willful misconduct. Each Guarantor
agrees not to assert any claim against any Indemnified Party, any of its
affiliates, or any of their directors, officers, employees, attorneys, agents,
or advisers, on any theory of liability, for special, indirect, consequential,
or punitive damages arising out of or otherwise relating to any of the
Transaction Documents, any of the transactions contemplated herein or therein or
the actual or proposed use of the proceeds of the Loans or other extension of
credit under the Transaction Documents. The agreements in this Section 22 shall
survive repayment of all of the Guarantors' Obligations and the termination or
expiration of this Guaranty Agreement in any manner, including but not limited
to termination upon occurrence of the Security Termination Date.
22. Termination. Subject to reinstatement pursuant to Section 13
hereof, this Guaranty Agreement and all of the Guarantors' Obligations hereunder
(excluding those obligations and liabilities that expressly survive such
termination) shall terminate on the Security Termination Date.
23. Remedies Cumulative; Late Payments. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies of any Secured
Party provided by law or under the Transaction Documents or other applicable
agreements or instruments. The making of the Loans and other extensions of
credit to the Borrower pursuant to the Transaction Documents shall be
conclusively presumed to have been made or extended, respectively, in reliance
upon
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each Guarantor's guaranty of the Borrower's Liabilities pursuant to the terms
hereof. Any amounts not paid when due under this Guaranty Agreement shall bear
interest at the Default Rate.
24. Notices. Any notice required or permitted hereunder shall be given,
(a) with respect to each Guarantor, at the address of the Borrower indicated in
Section 13.2 of the Credit Agreement and (b) with respect to any Secured Party,
at the applicable address indicated in Section 4.8 of the Intercreditor
Agreement. All such addresses may be modified, and all such notices shall be
given and shall be effective, as provided in Section 4.8 of the Intercreditor
Agreement.
25. Governing Law; Venue; Waiver of Jury Trial.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
(b) EACH GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF
MECKLENBURG, STATE OF NORTH CAROLINA, UNITED STATES OF AMERICA AND, BY
THE EXECUTION AND DELIVERY OF THIS AGREEMENT, SUCH GUARANTOR EXPRESSLY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY
BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND EACH
GUARANTOR HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO
THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING.
(c) EACH GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE
BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER
LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED
OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS FOR NOTICES TO SUCH
GUARANTOR IN EFFECT PURSUANT TO SECTION 25 HEREOF, OR BY ANY OTHER
METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN
THE STATE OF NORTH CAROLINA.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) or (c) HEREOF SHALL
PRECLUDE THE AGENT FROM BRINGING ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO ANY LOAN
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DOCUMENT IN THE COURTS OF ANY JURISDICTION WHERE ANY GUARANTOR OR ANY
OF SUCH GUARANTOR'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE
EXTENT PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH
GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH
COURT AND EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR
PROCEEDING, OBJECTION TO THE EXERCISE OF JURISDICTION OVER IT AND ITS
PROPERTY BY ANY SUCH OTHER COURT OR COURTS WHICH NOW OR HEREAFTER MAY
BE AVAILABLE UNDER APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE
BE DELIVERED IN CONNECTION THEREWITH, EACH GUARANTOR AND EACH AGENT ON
BEHALF OF THE SECURED PARTIES HEREBY AGREE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT ANY SUCH PERSON MAY
HAVE TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR PROCEEDING.
(f) EACH GUARANTOR HEREBY EXPRESSLY WAIVES ANY OBJECTION IT
MAY HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT
TO THE TERMS HEREOF IS AN INCONVENIENT FORUM.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Guaranty Agreement as of the day and year first written above.
GUARANTORS:
CONE GLOBAL FINANCE CORP.
By:_________________________________
Name:_______________________________
Title:______________________________
CIPCO S.C., INC.
By:_________________________________
Name:_______________________________
Title:______________________________
CONE FOREIGN TRADING LLC
By:_________________________________
Name:_______________________________
Title:______________________________
BANK OF AMERICA, N.A., as Revolving
Credit Agent for the Lenders
By:_________________________________
Name: Xxxxxx Xxxxx
Title: Managing Director
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, as Senior Note Holder
By:_________________________________
Name:_______________________________
Title:______________________________
GUARANTY AGREEMENT
Signature Page 1 of 2
SUNTRUST BANK, as Senior Lease
Creditor
By:_________________________________
Name:_______________________________
Title:______________________________
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as counterparty to the
Xxxxxx Swap Agreement
By:_________________________________
Name:_______________________________
Title:______________________________
WILMINGTON TRUST COMPANY, as General
Collateral Agent
By:_________________________________
Name:_______________________________
Title:______________________________
BANK OF AMERICA, N.A., as Priority
Collateral Agent
By:_________________________________
Name: Xxxxxx Xxxxx
Title: Managing Director
ATLANTIC FINANCIAL GROUP, LTD.
By:_________________________________
Name:_______________________________
Title:______________________________
GUARANTY AGREEMENT
Signature Page 2 of 2
