SUBSIDIARY GUARANTY AGREEMENT
THIS SUBSIDIARY GUARANTY AGREEMENT (this "Guaranty") is entered into
effective as of October 18, 2002, by CAMPUS PIPELINE, INC., a Delaware
corporation (the "Guarantor"), in favor of and for the benefit of CITIZENS BANK
OF PENNSYLVANIA, successor to Mellon Bank, N.A. (the "Bank").
BACKGROUND
A. Systems & Computer Technology Corporation, a Delaware corporation
(the "Company") and SCT Software & Resource Management Corporation, a Delaware
corporation (the "Borrowing Subsidiary"), have entered into that certain Credit
Agreement dated as of June 20, 1994, as amended by that certain Amendment and
Modification to Credit Agreement dated April 8, 1997, that certain Second
Amendment and Modification to Credit Agreement dated April 8, 1997, that certain
Third Amendment and Modification to Credit Agreement dated June 4, 1997, that
certain Fourth Amendment and Modification to Credit Agreement dated May 6, 1998,
that certain Fifth Amendment and Modification to Credit Agreement dated October
9, 1998, that certain Sixth Amendment and Modification to Credit Agreement dated
July 7, 2000, that certain Seventh Amendment and Modification to Credit
Agreement dated September 7, 2000, that certain Eighth Amendment and
Modification to Credit Agreement dated June 20, 2001, that certain Ninth
Amendment and Modification to Credit Agreement dated February 19, 2002, that
certain Tenth Amendment and Modification to Credit Agreement dated May 30, 2002,
2002 and that certain Eleventh Amendment and Modification to Credit Agreement
dated of even date herewith (as the same may be further amended from time to
time, the "Credit Agreement"). Capitalized terms defined therein and not
otherwise defined herein shall have the meanings set forth in the Credit
Agreement. Pursuant to the Credit Agreement, the Bank has agreed to make certain
Loans to the Company and the Borrowing Subsidiary (collectively, the
"Borrowers") subject to the terms and conditions of the Credit Agreement;
B. Certain of the obligations under the Credit Agreement are being
incurred in part for, and will inure to, the benefit of the Guarantor, which
benefits include managerial support of and financial assistance to the
Guarantor. Such benefits are hereby acknowledged.
C. The Guarantor desires to guaranty all obligations of the Borrowers
under the Credit Agreement.
D. It is a condition precedent to the making of further Loans under the
Credit Agreement that the obligations thereunder are irrevocably and
unconditionally guarantied by the Guarantor.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to induce the Bank to enter into the Credit Agreement
and to make the Loans thereunder, the Guarantor, intending to be legally bound
hereby, agrees as follows:
SECTION 1. DEFINITIONS
SECTION 1.1 Certain Defined Terms. As used in this Guaranty, the
following terms shall have the following meanings unless the context otherwise
requires:
"Guarantied Obligations" has the meaning assigned to that term in
subsection 2.1.
"Guaranty" means this Guaranty dated as of October 18, 2002, as it may
be amended, supplemented or otherwise modified from time to time.
"Payment in full", "paid in full" or any similar term means payment in
full of the Guarantied Obligations including, without limitation, all principal,
interest, costs, fees and expenses (including, without limitation, reasonable
legal fees and expenses) of the Bank as required under the Credit Agreement and
the other Loan Documents.
SECTION 1.2 Interpretation.
(a) References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Guaranty unless otherwise
specifically provided.
(b) In the event of any conflict or inconsistency between the
terms, conditions and provisions of this Guaranty and the terms, conditions and
provisions of the Credit Agreement, the terms, conditions and provisions of this
Guaranty shall prevail.
SECTION 2. THE GUARANTY
SECTION 2.1 Guaranty of the Guarantied Obligations. The Guarantor
hereby irrevocably and unconditionally guaranties, as a primary obligor, the due
and punctual payment in full of all Guarantied Obligations when the same shall
become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. ss. 362(a)). The term "Guarantied Obligations" means all of the
obligations of the Borrowers under the Credit Agreement and includes:
(a) any and all obligations of the Borrowers, including but not
limited to obligations in respect of notes, advances, borrowings, loans, debts,
letters of credit, bankers' acceptances, interest, fees, costs, expenses
(including, without limitation, reasonable legal fees and expenses of counsel),
indemnities and liabilities of whatsoever nature now or hereafter made, incurred
or created, whether absolute or contingent, liquidated or unliquidated, whether
due or not due, and however arising under or in connection with the Credit
Agreement and the other Loan Documents, including those arising under successive
borrowing transactions under the Credit Agreement which shall either continue
the obligations of the Borrowers or from time to time renew them after they have
been satisfied and including any increases to the Commitment or the Loans to be
made under the Credit Agreement; and
(b) those expenses set forth in subsection 2.10 hereof.
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SECTION 2.2 Liability of Guarantor. The Guarantor agrees that its
obligations hereunder are irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than indefeasible payment in
full of the Guarantied Obligations. In furtherance of the foregoing and without
limiting the generality thereof, Guarantor agrees as follows:
(a) This Guaranty is a guaranty of payment when due and not of
collectibility.
(b) The Bank may enforce this Guaranty upon the occurrence of an
Event of Default under the Credit Agreement notwithstanding the existence of any
dispute between the Bank and the Borrowers with respect to the existence of such
Event of Default.
(c) The obligations of the Guarantor hereunder are independent of
the obligations of the Borrowers under the Loan Documents and the obligations of
any other guarantor of the obligations of the Borrowers under the Loan
Documents, and a separate action or actions may be brought and prosecuted
against the Guarantor whether or not any action is brought against any Borrower
or any of such other guarantors and whether or not any Borrower is joined in any
such action or actions.
(d) The Guarantor's payment of a portion, but not all, of the
Guarantied Obligations shall in no way limit, affect, modify or abridge the
Guarantor's liability for any portion of the Guarantied Obligations which has
not been paid. Without limiting the generality of the foregoing, if the Bank is
awarded a judgment in any suit brought to enforce the Guarantor's covenant to
pay a portion of the Guarantied Obligations, such judgment shall not be deemed
to release the Guarantor from its covenant to pay the portion of the Guarantied
Obligations that is not the subject of such suit.
(e) The Bank, upon such terms as it deems appropriate, without
notice or demand and without affecting the validity or enforceability of this
Guaranty or giving rise to any reduction, limitation, impairment, discharge or
termination of the Guarantor's liability hereunder, from time to time may (i)
renew, extend, accelerate, increase the rate of interest on, or otherwise change
the time, place, manner or terms of payment of the Guarantied Obligations; (ii)
settle, compromise, release or discharge, or accept or refuse any offer of
performance with respect to, or substitutions for, the Guarantied Obligations or
any agreement relating thereto and/or subordinate the payment of the same to the
payment of any other obligations; (iii) request and accept other guaranties of
the Guarantied Obligations and take and hold security for the payment of this
Guaranty or the Guarantied Obligations; (iv) release, surrender, exchange,
substitute, compromise, settle, rescind, waive, alter, subordinate or modify,
with or without consideration, any security for payment of the Guarantied
Obligations, any other guaranties of the Guarantied Obligations, or any other
obligation of any Person with respect to the Guarantied Obligations; (v) enforce
and apply any security now or hereafter held by or for the benefit of the Bank
in respect of this Guaranty or the Guarantied Obligations and direct the order
or manner of sale thereof, or exercise any other right or remedy that the Bank
may have against any such security, as the Bank in its discretion may determine
consistent with the Credit Agreement and any applicable security agreement,
including foreclosure on any such security pursuant to one or more judicial or
nonjudicial sales, and even though such action operates to impair or extinguish
any right of reimbursement or subrogation or other right or remedy of the
Guarantor against any Borrower or any security for the Guarantied Obligations;
and (vi) exercise any other rights available to it under the Loan Documents.
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(f) This Guaranty and the obligations of the Guarantor hereunder
shall be valid and enforceable and shall not be subject to any reduction,
limitation, impairment, discharge or termination for any reason (other than
indefeasible payment in full of the Guarantied Obligations), including without
limitation the occurrence of any of the following, whether or not the Guarantor
shall have had notice or knowledge of any of them: (i) any failure or omission
to assert or enforce or agreement or election not to assert or enforce, or the
stay or enjoining, by order of court, by operation of law or otherwise, of the
exercise or enforcement of, any claim or demand or any right, power or remedy
(whether arising under the Loan Documents, at law, in equity or otherwise) with
respect to the Guarantied Obligations or any agreement relating thereto, or with
respect to any other guaranty of or security for the payment of the Guarantied
Obligations; (ii) any rescission, waiver, amendment or modification of, or any
consent to departure from, any of the terms or provisions (including without
limitation provisions relating to events of default) of the Credit Agreement,
any of the other Loan Documents or any agreement or instrument executed pursuant
thereto, or of any other guaranty or security for the Guarantied Obligations, in
each case whether or not in accordance with the terms of the Credit Agreement or
such Loan Document or any agreement relating to such other guaranty or security;
(iii) the Guarantied Obligations, or any agreement relating thereto, at any time
being found to be illegal, invalid or unenforceable in any respect; (iv) the
application of payments received from any source (other than payments received
pursuant to the other Loan Documents or from the proceeds of any security for
the Guarantied Obligations, except to the extent such security also serves as
collateral for indebtedness other than the Guarantied Obligations) to the
payment of indebtedness other than the Guarantied Obligations, even though the
Bank might have elected to apply such payment to any part or all of the
Guarantied Obligations; (v) the Bank's consent to the change, reorganization or
termination of the corporate structure or existence of the Company or any of its
Subsidiaries and to any corresponding restructuring of the Guarantied
Obligations; (vi) any failure to perfect or continue perfection of a security
interest in any collateral which secures any of the Guarantied Obligations;
(vii) any defenses, set-offs or counterclaims that any Borrower may allege or
assert against the Bank in respect of the Guarantied Obligations, including but
not limited to failure of consideration, breach of warranty, statute of frauds,
statute of limitations, and usury, but excluding payment defenses; and (viii)
any other act or thing or omission, or delay to do any other act or thing, which
may or might in any manner or to any extent vary the risk of the Guarantor as an
obligor in respect of the Guarantied Obligations.
SECTION 2.3 Limitation on Amount Guarantied. Anything contained in this
Guaranty to the contrary notwithstanding, the obligations of the Guarantor
hereunder shall be limited to the lesser of (i) the Guaranteed Obligations and
(ii) a maximum aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance as a fraudulent transfer
or conveyance under Section 548 of Title 11 of the United States Code or any
applicable provisions of comparable state law (collectively, the "Fraudulent
Transfer Laws"), if and to the extent the Guarantor (or a trustee on its behalf)
has properly invoked the protections of the Fraudulent Transfer Laws in each
case after giving effect to all other liabilities of the Guarantor, contingent
or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically
excluding, however, any liabilities of the Guarantor (x) in respect of
intercompany indebtedness to any Borrower or Affiliates of any Borrower to the
extent that such indebtedness would be discharged in an amount equal to the
amount paid by the Guarantor hereunder and (y) under any guaranty of
subordinated debt issued by any Borrower, which guaranty contains a limitation
as to maximum amount similar to that set forth in this subsection, pursuant to
which the liability of the Guarantor hereunder is included in the liabilities
taken into account in determining such maximum amount) and after giving effect
as assets to the value (as determined under the applicable provisions of the
Fraudulent Transfer Laws) of any rights to subrogation or contribution of the
Guarantor pursuant to (i) applicable law or (ii) any agreement providing for an
equitable allocation among the Guarantor and other Affiliates of any Borrower of
obligations arising under guaranties by such parties.
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SECTION 2.4 Waivers by the Guarantor. The Guarantor hereby expressly
waives, for the benefit of the Bank:
(a) any right to require the Bank, as a condition of payment or
performance by the Guarantor, to (i) proceed against the Borrower, any other
guarantor of the Guarantied Obligations or any other Person, (ii) proceed
against or exhaust any security held from any Borrower, the Guarantor, any other
guarantor of the Guarantied Obligations or any other Person, (iii) proceed
against or have resort to any balance of any deposit account or credit on the
books of the Bank in favor of the Borrower or any other Person, or (iv) pursue
any other remedy in the power of the Bank whatsoever;
(b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of any Borrower including, without
limitation, any defense based on or arising out of the lack of validity or the
unenforceability of the Guarantied Obligations or any agreement or instrument
relating thereto or by reason of the cessation of the liability of any Borrower
from any cause other than indefeasible payment in full of the Guarantied
Obligations;
(c) any defense based upon any statute or rule of law that
provides that the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal;
(d) any defense based upon the Bank's errors or omissions in the
administration of the Guarantied Obligations, except for errors or omissions
caused solely by the gross negligence or willful misconduct of the Bank;
(e) (i) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms of this Guaranty and
any legal or equitable discharge of the Guarantor's obligations hereunder, (ii)
the benefit of any statute of limitations affecting the Guarantor's liability
hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments
and counterclaims in any action brought in conjunction with this Guaranty, but
this waiver shall not preclude any right the Guarantor may have to assert
set-offs, recoupments or counterclaims in a separate proceeding and (iv)
promptness, diligence and any requirement that the Bank protect, secure, perfect
or insure any security interest or lien or any property subject thereto;
(f) notices, demands, presentments, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including acceptance
of this Guaranty, notices of default under the Credit Agreement or any agreement
or instrument related thereto, notices of any renewal, extension or modification
of the Guarantied Obligations or any agreement related thereto, notices of any
extension of credit to any Borrower and notices of any of the matters referred
to in subsection 2.2 and any right to consent to any thereof; and
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(g) to the fullest extent permitted by law, any defenses or
benefits that may be derived from or afforded by law that limit the liability of
or exonerate guarantors or sureties, or that may conflict with the terms of this
Guaranty.
SECTION 2.5 Payment by the Guarantor Application of Payments. The
Guarantor hereby agrees, in furtherance of the foregoing and not in limitation
of any other right which the Bank or any other Person may have at law or in
equity against the Guarantor by virtue hereof, upon the failure of the Borrowers
to pay any of the Guarantied Obligations when and as the same shall become due,
whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise (including amounts that would become due but for the
operation of the automatic stay under Section 362(0) of the Bankruptcy Code, 11
U.S.C. ss. 362(a)), the Guarantor will forthwith pay, or cause to be paid, in
cash, to the Bank, an amount equal to the sum of the unpaid principal amount of
all Guarantied Obligations then due as aforesaid, accrued and unpaid interest on
such Guarantied Obligations (including, without limitation, interest which, but
for the filing of a petition in bankruptcy with respect to a Borrower, would
have accrued on such Guarantied Obligations, whether or not a claim is allowed
against that Borrower for such interest in any such bankruptcy proceeding) and
all other Guarantied Obligations then owed to the Bank. All such payments shall
be applied promptly from time to time by the Bank:
FIRST, to the payment of the costs and expenses of any
collection or other realization under this Guaranty, including
reasonable compensation to the Bank and its agents and counsel,
and all expenses, liabilities and advances made or incurred by the
Bank in connection therewith;
SECOND, to the payment of all other Guarantied Obligations
owing to the Bank; and
THIRD, after payment in full of all Guarantied Obligations, to
the payment to the Guarantor, or its successors or assigns, or to
whomsoever may be lawfully entitled to receive the same or as a
court of competent jurisdiction may direct, of any surplus then
remaining from such payments.
All applications of payments to the Guarantied Obligations shall be
applied to the payment of interest before application to the payment of
principal.
SECTION 2.6 Subrogation. Guarantor hereby waives any and all rights
Guarantor may have at any time (whether arising directly or indirectly, by
operations of law or contract) to assert any claim against any Borrower on
account of payments made under this Guaranty, including without limitation any
and all rights of subrogation or indemnity. Until the Guarantied Obligations
shall have been indefeasibly paid in full, the Guarantor shall withhold exercise
of (a) any right of subrogation against any other guarantor of the Guarantied
Obligations in respect of the Guaranteed Obligations, (b) any right of
contribution in respect of the Guaranteed Obligations the Guarantor may have
against any other guarantor of the Guarantied Obligations, (c) any benefit of,
and any right to participate in, any security now or hereafter held by the Bank.
The Guarantor further agrees that, to the extent the waiver of its rights of
subrogation and contribution as set forth herein is found by a court of
competent jurisdiction to be void or voidable for any reason, any rights of
subrogation the Guarantor may have against any Borrower or against any
collateral or security, and any rights of contribution the Guarantor may have
against any other guarantor, shall be junior and subordinate to any rights the
Bank may have against the Borrowers, to all right, title and interest the Bank
may have in any such collateral or security, and to any right the Bank may have
against such other guarantor. The Bank may use, sell or dispose of any item of
collateral or security as it sees fit without regard to any subrogation rights
the Guarantor may have, and upon any such disposition or sale any rights of
subrogation the Guarantor may have shall terminate. If any amount shall be paid
to the Guarantor on account of such subrogation rights at any time when all
Guarantied Obligations shall not have been paid in full, such amount shall be
held in trust for the Bank and shall forthwith be paid over to the Bank to be
credited and applied against the Guarantied Obligations, whether matured or
unmatured, in accordance with the terms of the Credit Agreement or any
applicable security agreement.
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SECTION 2.7 Subordination of Other Obligations. Any indebtedness of any
Borrower now or hereafter held by the Guarantor is hereby subordinated in right
of payment to the Guarantied Obligations, and any such indebtedness of any
Borrower to the Guarantor collected or received by the Guarantor after an Event
of Default has occurred and is continuing shall be held in trust for the Bank
and shall forthwith be paid over to the Bank to be credited and applied against
the Guarantied Obligations but without affecting, impairing or limiting in any
manner the liability of the Guarantor under any other provision of this
Guaranty.
SECTION 2.8 Real Property Security. The Guarantor agrees that, if all
or a portion of the Guarantied Obligations are at any time secured by a deed of
trust or mortgage covering interests in real property, the Bank or its designee,
in its sole discretion, without notice or demand and without affecting the
liability of the Guarantor under this Guaranty, may foreclose, pursuant to the
terms of the Loan Documents or otherwise, on such deed of trust or mortgage and
the interests in real property secured thereby by nonjudicial or other sale. The
Guarantor understands that the exercise by the Bank of certain rights and
remedies contained in the Credit Agreement and such deed of trust or mortgage
may affect or eliminate the Guarantor's right of subrogation against a Borrower
and that the Guarantor may therefore incur a partially or totally
nonreimbursable liability hereunder. Nevertheless, the Guarantor hereby
authorizes and empowers the Bank to exercise, in its sole discretion, any rights
and remedies, or any combination thereof, which may then be available, since it
is the intent and purpose of the Guarantor that the obligations hereunder shall
be absolute, independent and unconditional under any and all circumstances.
Notwithstanding any foreclosure of the lien of such deed of trust or mortgage
with respect to any or all real or personal property secured thereby, whether by
the exercise of the power of sale contained therein, by an action for judicial
foreclosure or by an acceptance of a deed in lieu of foreclosure, the Guarantor
shall remain bound under this Guaranty, including its obligation to pay any
deficiency after a nonjudicial foreclosure.
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SECTION 2.9 Expenses. The Guarantor agrees to pay, or cause to be paid,
and to save the Bank harmless against liability for, any and all costs and
expenses (including reasonable fees and disbursements of counsel) incurred or
expended by the Bank in connection with the enforcement of or preservation of
any rights under this Guaranty.
SECTION 2.10 Continuing Guaranty: Termination of Guaranty. This
Guaranty is a continuing guaranty and shall remain in effect until all of the
Guarantied Obligations shall have been indefeasibly paid in full and the
Commitments shall have terminated, subject in any event to reinstatement in
accordance with Section 2.15(c) hereof.
SECTION 2.11 Authority of the Guarantor or the Borrower. It is not
necessary for the Bank to inquire into the capacity or powers of the Guarantor
or any Borrower or the officers, directors or any agents acting or purporting to
act on behalf of any of them.
SECTION 2.12 Financial Condition of the Borrowers. Any Loans may be
granted to any Borrower or continued from time to time without notice to or
authorization from the Guarantor regardless of the financial or other condition
of such Borrower at the time of any such grant or continuation. The Bank shall
have no obligation to disclose or discuss with the Guarantor its assessment, or
the Guarantor's assessment, of the financial condition of any Borrower. The
Guarantor has adequate means to obtain information from the Borrowers on a
continuing basis concerning the financial condition of the Borrowers and their
ability to perform their obligations under the Loan Documents, and the Guarantor
assumes the responsibility for being and keeping informed of the financial
condition of the Borrowers and of all circumstances bearing upon the risk of
nonpayment of the Guarantied Obligations. The Guarantor hereby waives and
relinquishes any duty on the part of the Bank to disclose any matter, fact or
thing relating to the business, operations or conditions of any Borrower now
known or hereafter known by the Bank.
SECTION 2.13 Rights Cumulative. The rights, powers and remedies given
to the Bank by this Guaranty are cumulative and shall be in addition to and
independent of all rights, powers and remedies given to the Bank by virtue of
any statute or rule of law or in any of the other Loan Documents or any
agreement between the Guarantor and the Bank or between any Borrower and the
Bank. Any forbearance or failure to exercise, and any delay by the Bank in
exercising, any right, power or remedy hereunder shall not impair any such
right, power or remedy or be construed to be a waiver thereof, nor shall it
preclude the further exercise of any such right, power or remedy.
SECTION 2.14 Bankruptcy; Post Petition Interest; Reinstatement of
Guaranty.
(a) So long as any Guarantied Obligations remain outstanding, the
Guarantor shall not, without the prior written consent of the Bank in accordance
with the terms of the Credit Agreement, commence or join with any other Person
in commencing any bankruptcy, reorganization or insolvency proceedings of or
against any Borrower. The obligations of the Guarantor under this Guaranty shall
not be reduced, limited, impaired, discharged, deferred, suspended or terminated
by any proceeding, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, liquidation or arrangement of any
Borrower or by any defense which any Borrower may have by reason of the order,
decree or decision of any court or administrative body resulting from any such
proceeding.
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(b) The Guarantor acknowledges and agrees that any interest on any
portion of the Guarantied Obligations which accrues after the commencement of
any proceeding referred to in clause (a) above (or, if interest on any portion
of the Guarantied Obligations ceases to accrue by operation of law by reason of
the commencement of said proceeding, such interest as would have accrued on such
portion of the Guarantied Obligations if said proceedings had not been
commenced) shall be included in the Guarantied Obligations because it is the
intention of the Guarantor and the Bank that the Guarantied Obligations that are
guarantied by the Guarantor pursuant to this Guaranty should be determined
without regard to any rule of law or order which may relieve any Borrower of any
portion of such Guarantied Obligations. The Guarantor will permit any trustee in
bankruptcy, receiver, debtor in possession, assignee for the benefit of
creditors or similar person to pay the Bank, or allow the claim of the Bank in
respect of, any such interest accruing after the date on which such proceeding
is commenced.
(c) In the event that all or any portion of the Guarantied
Obligations are paid by the Borrowers, the obligations of the Guarantor
hereunder shall continue and remain in full force and effect or be reinstated,
as the case may be, in the event that all or any part of such payment(s) are
rescinded or recovered directly or indirectly from the Bank as a preference,
fraudulent transfer or otherwise, and any such payments which are so rescinded
or recovered shall constitute Guarantied Obligations for all purposes under this
Guaranty.
SECTION 2.15 Notice of Events. As soon as the Guarantor obtains
knowledge thereof, the Guarantor shall give the Bank written notice of any
condition or event which has resulted or might reasonably be expected to result
in (a) a material adverse change in the financial condition of the Guarantor or
any Borrower, or (b) a breach of or noncompliance with any term, condition or
covenant contained herein or in the Credit Agreement, any other Loan Document or
in any document delivered pursuant hereto or thereto, or (c) a material breach
of, or noncompliance with, any material term, condition or covenant of any
material contract to which the Guarantor or any Borrower is a party or by which
the Guarantor or any Borrower or the Guarantor's or any Borrower's property may
be bound.
SECTION 2.16 Set Off. In addition to any other rights the Bank may have
under law or in equity, if any amount shall at any time be due and owing by the
Guarantor to the Bank under this Guaranty, the Bank is authorized at any time or
from time to time, without notice (any such notice being hereby expressly
waived), to set off and to appropriate and to apply any and all deposits
(general or special, including but not limited to indebtedness evidenced by
certificates of deposit, whether matured or unmatured, provided that if
unmatured, the Bank shall, to the extent permitted by law, waive any applicable
prepayment penalty) and any other indebtedness of the Bank owing to the
Guarantor and any other property of the Guarantor held by the Bank to or for the
credit or the account of the Guarantor against and on account of the Guarantied
Obligations and liabilities of the Guarantor to the Bank for the benefit of the
Bank under this Guaranty.
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SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce the Bank to accept this Guaranty and to enter into
the Credit Agreement and to make the Loans thereunder, the Guarantor hereby
represents and warrants that the following statements are true and correct:
SECTION 3.1 Corporate Existence. The Guarantor is duly organized,
validly existing and in good standing under the laws of the state of its
incorporation, has the corporate power to own its assets and to transact the
business in which it is now engaged and is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership or lease of property or the conduct of its business requires such
qualification, except for failures to be so qualified, authorized or licensed
that would not in the aggregate have a material adverse effect on the business,
operations, assets or financial condition of the Guarantor.
SECTION 3.2 Corporate Power Authorization Enforceable Obligations. The
Guarantor has the corporate power and authority to execute, deliver and perform
this Guaranty and all obligations required hereunder, and has taken all
necessary corporate action to authorize this Guaranty on the terms and
conditions hereof and its execution, delivery and performance of this Guaranty
and all obligations required hereunder. No consent of any other Person
including, without limitation, stockholders and creditors of the Guarantor, and
no license, permit, approval or authorization of, exemption by, notice or report
to, or registration, filing or declaration with, any governmental authority is
required by the Guarantor in connection with this Guaranty or the execution,
delivery, performance, validity or enforceability of this Guaranty and all
obligations required hereunder. This Guaranty has been, and each instrument or
document required hereunder will be, executed and delivered by a duly authorized
officer of the Guarantor, and this Guaranty constitutes, and each instrument or
document required hereunder when executed and delivered will constitute, the
legally valid and binding obligation of the Guarantor, enforceable against the
Guarantor in accordance with its terms, except as enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws or equitable principles relating to or limiting creditors' rights
generally.
SECTION 3.3 No Legal Bar. The execution, delivery and performance of
this Guaranty and the documents or instruments required hereunder, will not
violate any provision of any existing law or regulation binding on the
Guarantor, or any order, judgments award or decree of any court, arbitrator or
governmental authority binding on the Guarantor, or the certificate of
incorporation or bylaws of the Guarantor or any securities issued by the
Guarantor, or any mortgage, indenture, lease, contract or other agreement,
instrument or undertaking to which the Guarantor is a party or by which the
Guarantor or any of its assets may be bound, the violation of which would have a
material adverse effect on the business, operations, assets or financial
condition of the Guarantor and will not result in, or require, the creation or
imposition of any Lien on any of its property, assets or revenues pursuant to
the provisions of any such mortgage, indenture, lease, contract or other
agreement, instrument or undertaking.
SECTION 4. AFFIRMATIVE COVENANTS
The Guarantor covenants and agrees that, unless and until all of the
Guarantied Obligations shall have been indefeasibly paid in full and the
Commitments shall have terminated, unless the Bank shall otherwise consent in
writing:
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SECTION 4.1 Corporate Existence, Etc. The Guarantor shall at all times
preserve and keep in full force and effect its corporate existence and all
rights and franchises material to its business; provided, however, that the
Guarantor may merge with a Material Subsidiary or the Company.
SECTION 4.2 Compliance with Laws, Etc. The Guarantor shall comply in
all material respects with all applicable laws, rules, regulations and orders,
such compliance to include, without limitation, paying when due all taxes,
assessments and governmental charges imposed upon it or upon any of its
properties or assets or in respect of any of its franchises, businesses, income
or property before any penalty or interest accrues thereon; provided that no
such charge or claim need be paid if being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted and if such
reserve or other appropriate provision, if any, as shall be required in
accordance with GAAP, shall have been made therefor.
SECTION 4.3 Books and Records. The Guarantor shall keep and maintain
books of record and account with respect to its operations in accordance with
GAAP and shall permit the Bank and its officers, employees and authorized
agents, to the extent the Bank in good xxxxx xxxxx necessary for the proper
administration of this Guaranty, to examine, copy and make excerpts from the
books and records of the Guarantor and its Subsidiaries and to inspect the
properties of the Guarantor and its Subsidiaries, both real and personal, at
such reasonable times upon reasonable notice as the Bank may request, without
disruption of the Guarantor's business.
SECTION 5. MISCELLANEOUS
SECTION 5.1 Survival of Warranties. All agreements, representations and
warranties made herein shall survive the execution and delivery of this Guaranty
and any increase in the Commitments under the Credit Agreement until payment in
full of the Guaranteed Obligations.
SECTION 5.2 Notices. Except as otherwise set forth in this Guaranty,
all notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex or facsimile communication) and mailed or
telegraphed or telexed or sent by facsimile, overnight courier or delivered, if
to the Guarantor, at its address set forth on the signature page hereof; and if
to the Bank, at its address set forth on the signature page of the Credit
Agreement; or, as to each party, at such other address as shall be designated by
such party in a written notice to the other parties. All such notices and
communications shall be effective three (3) Business Days after deposit in the
U.S. Mail, postage pre-paid, when delivered to the telegraph company or to the
overnight courier, when sent by telex or when sent by facsimile, respectively.
SECTION 5.3 Severability. In case any provision in or obligation under
this Guaranty shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
SECTION 5.4 Amendments and Waivers. No amendment or waiver of any
provision of this Guaranty nor consent to any departure by the Guarantor
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Bank. Any waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it was given.
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SECTION 5.5 Headings. Section and subsection headings in this Guaranty
are included herein for convenience of reference only and shall not constitute a
part of this Guaranty for any other purpose or be given any substantive effect.
SECTION 5.6 Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
WITHOUT GIVING EFFECT TO ITS CHOICE OF LAW DOCTRINE.
SECTION 5.7 Successors and Assigns. This Guaranty is a continuing
guaranty and shall be binding upon the Guarantor and its successors and assigns.
This Guaranty shall inure to the benefit of the Bank, and its respective
successors and assigns. The Guarantor shall not assign this Guaranty or any of
the rights or obligations of the Guarantor hereunder without the prior written
consent of the Bank. The Bank may, without prior notice or consent, assign its
interest in this Guaranty in whole or in part. The Bank shall give the Guarantor
written notice of any such assignment within thirty (30) days after such
assignment. The terms and provisions of this Guaranty shall inure to the benefit
of any assignee or transferee, and in the event of such transfer or assignment
the rights and privileges herein conferred upon the Bank shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions hereof.
SECTION 5.8 Consent to Jurisdiction; Waiver of Immunities. All judicial
proceedings brought against the Guarantor with respect to this Guaranty may be
brought in any state or federal court of competent jurisdiction in the
Commonwealth of Pennsylvania, and by execution and delivery of this Guaranty,
the Guarantor accepts for itself and in connection with its properties,
generally and unconditionally, the nonexclusive jurisdiction of the aforesaid
courts, and irrevocably agrees to be bound by any judgment rendered thereby in
connection with this Guaranty. The Guarantor irrevocably waives any right it may
have to assert the doctrine of forum non conveniens or to object to venue to the
extent any proceeding is brought in accordance with this Section. The Guarantor
designates and appoints its Secretary, at the address set forth on the signature
page hereof, and such other Persons as may hereafter be selected by the
Guarantor irrevocably agreeing in writing to so serve as its agent to receive on
its behalf service of all process in any such proceedings in any such court,
such service being hereby acknowledged by the Guarantor to be effective and
binding service in every respect. A copy of any such process so served shall be
mailed by registered mail to the Guarantor at its address provided in the
applicable signature page hereto, except that unless otherwise provided by
applicable law, any failure to mail such copy shall not affect the validity of
service of process. If any agent appointed by the Guarantor refuses to accept
service, the Guarantor hereby agrees that service upon it by mail shall
constitute sufficient notice. Nothing herein shall affect the right to serve
process in any other manner permitted by law or shall limit the right of the
Bank to bring proceedings against the Guarantor in courts of any jurisdiction.
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SECTION 5.9 Waiver of Jury Trial. THE GUARANTOR AND THE BANK, BY ITS
ACCEPTANCE HEREOF, HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY, OR
ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN
TRANSACTION AND THE LENDER/GUARANTOR RELATIONSHIP THAT IS BEING ESTABLISHED. The
scope of this waiver is intended to be all-encompassing of any and all disputes
that may be filed in any court and that relate to the subject matter of this
transaction, including without limitation, contract claims, tort claims, breach
of duty claims, and all other common law and statutory claims. The Bank and the
Guarantor each acknowledge that this waiver is a material inducement to enter
into a business relationship, that each has already relied on the waiver in
entering into this Guaranty, and that each will continue to rely on the waiver
in their related future dealings. The Bank and the Guarantor further warrant and
represent that each has reviewed this waiver with its legal counsel, and that
each knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY,
THE LOAN DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE
LOAN. In the event of litigation, this Guaranty may be filed as a written
consent to a trial by the court.
SECTION 6. Confession of Judgment. GUARANTOR HEREBY AUTHORIZES AND EMPOWERS ANY
ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF
PENNSYLVANIA, OR IN ANY OTHER JURISDICTION WHICH PERMITS THE ENTRY OF JUDGMENT
BY CONFESSION, TO APPEAR FOR GUARANTOR AT ANY TIME AFTER THE OCCURRENCE OF AN
EVENT OF DEFAULT (AS DEFINED IN THE LOAN AGREEMENT), IN ANY ACTION BROUGHT
AGAINST GUARANTOR ON THIS SURETY AGREEMENT AT THE SUIT OF BANK, WITH OR WITHOUT
COMPLAINT OR DECLARATION FILED, WITHOUT STAY OF EXECUTION, AS OF ANY TERM OR
TIME, AND THEREIN TO CONFESS OR ENTER JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE
UNPAID AMOUNT OF THE GUARANTEED OBLIGATIONS AND ALL ARREARAGES OF INTEREST
THEREON, TOGETHER WITH ALL COSTS AND OTHER EXPENSES AND AN ATTORNEY'S COLLECTION
COMMISSION OF FIFTEEN PERCENT (15%) OF THE AGGREGATE AMOUNT OF THE FOREGOING
SUMS, BUT IN NO EVENT LESS THAN FIVE THOUSAND DOLLARS ($5,000.00); AND FOR SO
DOING THIS SURETY AGREEMENT OR A COPY HEREOF VERIFIED BY AFFIDAVIT SHALL BE A
SUFFICIENT WARRANT.
THE AUTHORITY GRANTED HEREIN TO CONFESS JUDGMENT SHALL NOT BE
EXTINGUISHED BY ANY EXERCISE THEREOF, BUT SHALL CONTINUE FROM TIME TO TIME AND
AT ALL TIMES DURING THE DURATION OF THIS SURETY AGREEMENT. GUARANTOR
ACKNOWLEDGES THAT GUARANTOR HAS BEEN REPRESENTED BY COUNSEL IN CONNECTION WITH
THE EXECUTION AND DELIVERY OF THIS SURETY AGREEMENT. GUARANTOR KNOWINGLY WAIVES
GUARANTOR'S RIGHT TO BE HEARD PRIOR TO THE ENTRY OF SUCH JUDGMENT AND
UNDERSTANDS THAT, UPON SUCH ENTRY, SUCH JUDGMENT SHALL BECOME A LIEN ON ALL REAL
PROPERTY OF GUARANTOR IN THE COUNTY IN WHICH SUCH JUDGMENT IS ENTERED AND THAT
EXECUTION MAY IMMEDIATELY BE ISSUED ON THE JUDGMENT TO GARNISH, LEVY ON OR
ATTACH ANY PERSONAL PROPERTY OF GUARANTOR.
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GUARANTOR WAIVES AND RELINQUISHES ALL ERRORS, DEFECTS AND IMPERFECTIONS
IN THE ENTRY OF JUDGMENT AS AFORESAID, OR IN ANY PROCEEDING PURSUANT THERETO,
AND ALL BENEFITS THAT MAY ACCRUE TO GUARANTOR BY VIRTUE OF ANY LAW OR RULE OF
COURT RELATING TO A STAY OF EXECUTION OR EXEMPTING ANY PROPERTY FROM LEVY OR
SALE UNDER EXECUTION.
SECTION 7.1 No Other Writing. This writing is intended by the Guarantor
and the Bank as the final expression of this Guaranty and is also intended as a
complete and exclusive statement of the terms of their agreement with respect to
the matters covered hereby. No course of dealing, course of performance or trade
usage, and no parol evidence of any nature, shall be used to supplement or
modify any terms of this Guaranty. There are no conditions to the full
effectiveness of this Guaranty.
SECTION 7.2 Further Assurances. At any time or from time to time, upon
the request of the Bank, the Guarantor shall execute and deliver such further
documents and do such other acts and things as the Bank may reasonably request
in order to effect fully the purposes of this Guaranty.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty by its
duly authorized officer as of the date first above written.
CAMPUS PIPELINE, INC., a Delaware corporation
By: /s/ Xxxx Xxxxxxx
Name/Title: Xxxx Xxxxxxx / Executive Vice President
Address:
SCT Corporation
0 Xxxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxxxx
Telecopy No.: (000)000-0000
With a copy to General Counsel
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