1
CONTINUING LEASE GUARANTY
THIS GUARANTY, made as of January 20, 1998, by ICG HOLDINGS (CANADA), INC.,
a Federal Canadian corporation ("Guarantor") to TRINET ESSENTIAL FACILITIES X,
INC., a Maryland corporation ("Landlord").
W I T N E S S E T H:
1. For valuable consideration, receipt of which is acknowledged, and to
satisfy certain requirements under the Lease dated January 15, 1998 (the
"Lease") between Landlord and ICG Holdings, Inc., a Colorado corporation
("Tenant"), Guarantor hereby absolutely, unconditionally and irrevocably
guarantees to Landlord, and agrees fully to pay, perform and discharge, as and
when payment, performance and discharge are due, all of the covenants,
obligations and liabilities of Tenant under the Lease and all amendments,
modifications, renewals, extensions, supplements, substitutions and replacements
of the Lease arising during the period beginning on the date hereof and ending
on the date this Guaranty is terminated (the "Guaranteed Obligations"). The
obligations of Guarantor under this Guaranty shall be absolute, unconditional
and irrevocable and shall continue and remain in full force and effect until all
of the Guaranteed Obligations have been fully paid, performed and discharged.
2. The obligations of Guarantor under this Guaranty shall not be affected,
modified or impaired by the occurrence of any of the following events, whether
or not with notice to, or the consent of, Guarantor: (a) the waiver, surrender,
compromise, settlement, release or termination of any or all of the Guaranteed
Obligations; (b) the failure to give notice to Guarantor of the occurrence of an
event of default under the Guaranteed Obligations; (c) the extension of the time
for the payment, performance or discharge of any or all of the Guaranteed
Obligations; (d) the amendment or modification (whether material or otherwise)
of the Guaranteed Obligations in any respect; (e) any failure, omission, delay
or lack on the part of Landlord to enforce, assert or exercise any right, power
or remedy conferred on Landlord under the Guaranteed Obligations; (f) the
voluntary or involuntary liquidation, dissolution, sale or other disposition of
all or substantially all of the assets, marshalling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition with creditors or adjustment of debts,
or other similar proceedings affecting Tenant or Guarantor or any of the assets
of either of them; (g) the release or discharge by operation of law of Tenant
from the payment, performance or discharge of any or all of the Guaranteed
Obligations; (h) the release or discharge by operation of law of Guarantor from
any or all of the obligations of Guarantor under this Guaranty; or (i) the
invalidity or unenforceability of any or all of the Guaranteed Obligations.
Guarantor acknowledges that Landlord would not enter into the Lease without this
Guaranty and that Landlord is relying on this Guaranty.
2
3. The obligations of Guarantor under this Guaranty are independent of the
Guaranteed Obligations. Guarantor agrees that Landlord shall have the right to
proceed against Guarantor directly and independently of Tenant. A separate
action may be brought and prosecuted against Guarantor whether or not an action
is brought against Tenant or Tenant is joined in any such action. Guarantor
authorizes Landlord and Tenant, without notice to, demand of, or consent from
Guarantor and without releasing or affecting Guarantor's liability under this
Guaranty, from time to time to amend, modify, renew, extend, supplement or
replace the Guaranteed Obligations or otherwise change the terms of the
Guaranteed Obligations, to take and hold security for the Guaranteed
Obligations, and to enforce, waive, surrender, impair, compromise or release any
such security or any or all of the Guaranteed Obligations or any person or
entity liable for any or all of the Guaranteed Obligations. Guarantor shall be
and remain bound under this Guaranty notwithstanding any such act or omission by
Tenant or Landlord. Guarantor waives the right, if any, to require Landlord to
proceed against Tenant, to proceed against or exhaust any security held by
Landlord, or to pursue any other remedy in Landlord's power. Landlord shall have
the right to exercise or enforce any right or remedy Landlord may have against
Tenant or any security held by Landlord. Guarantor waives the right, if any, to
the benefit of, or to direct the application of, any security held by Landlord.
Guarantor waives (a) any defense arising out of any alteration of the original
Guaranteed Obligations, (b) any defense arising out of the absence, impairment
or loss of any right of reimbursement or subrogation or other right or remedy of
Guarantor against Tenant or any security held by Landlord, and (c) any defense
arising by reason of any disability or other defense of Tenant or by reason of
the cessation or reduction from any cause whatsoever of the liability of Tenant
other than full payment, performance and discharge of the Guaranteed
Obligations. The cessation or reduction of the liability of Tenant for any
reason whatsoever other than full payment, performance and discharge of the
Guaranteed Obligations shall not release or affect in any way the liability of
Guarantor under this Guaranty.
4. If Tenant becomes insolvent or is adjudicated bankrupt or files a
petition for reorganization, arrangement, composition or similar relief under
any present or future provision of the federal Bankruptcy Code, or if such a
petition is filed against Tenant, or if Tenant makes a general assignment for
the benefit of creditors, and in any such proceeding any or all of the
Guaranteed Obligations are terminated or rejected or any or all of the
Guaranteed Obligations are modified or abrogated, then Guarantor agrees that
Guarantor's liability under this Guaranty shall not thereby be affected or
modified and such liability shall continue in full force and effect as if no
such action or proceeding had occurred. This Guaranty shall continue to be
effective or be reinstated, as the case may be, if any payment of the Guaranteed
Obligations must be returned by Landlord upon the insolvency, bankruptcy or
reorganization of Tenant or Guarantor, or otherwise, as though such payment had
not been made.
3
5. Guarantor assumes the responsibility for being and keeping Guarantor
informed of the financial condition of Tenant and of all other circumstances
bearing upon the risk of failure to pay, perform or discharge any of the
Guaranteed Obligations which diligent inquiry would reveal, and Guarantor agrees
that Landlord has no duty to advise Guarantor of information known to Landlord
regarding such condition or any such circumstance. Guarantor acknowledges that
repeated and successive demands may be made and payments or performance made
hereunder in response to such demands as and when, from time to time, Tenant
defaults in the payment, performance or discharge of the Guaranteed Obligations.
Notwithstanding any such payments and performance hereunder, this Guaranty shall
remain in full force and effect and shall apply to any and all subsequent
defaults by Tenant. It is not necessary for Landlord to inquire into the
capacity, authority or powers of Tenant or the partners, directors, officers,
employees, agents or representatives acting or purporting to act on behalf of
Tenant, and all of the Guaranteed Obligations made or created in reliance upon
the purported exercise of such powers shall be guaranteed under this Guaranty.
6. If Tenant and Guarantor fail to pay, perform and discharge, as and when
payment, performance and discharge are due, all of the Guaranteed Obligations,
Landlord shall have the right, but no obligation, and without releasing Tenant
or Guarantor from any of the Guaranteed Obligations, to pay, perform and
discharge any or all of the Guaranteed Obligations on behalf of Tenant and
Guarantor. Guarantor shall, on demand, pay to Landlord all sums expended by
Landlord in the payment, performance and discharge of the Guaranteed
Obligations, together with interest on all such sums from the date of
expenditure to the date all such sums are paid by Tenant or Guarantor to
Landlord at the Interest Rate (as defined in the Lease). Guarantor waives all
presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor and notices of acceptance of this
Guaranty. Guarantor agrees to pay all costs and expenses, including reasonable
attorneys' fees and disbursements, which are incurred by Landlord in the
enforcement of this Guaranty. If any provision of this Guaranty is held to be
invalid or unenforceable, the validity or enforceability of the other provisions
of this Guaranty shall not be affected. If there is more than one Guarantor, all
obligations of Guarantor under this Guaranty shall be the joint and several
obligations of each Guarantor. This Guaranty may not be amended or modified in
any respect except by a written instrument signed by Guarantor and Landlord. As
used in this Guaranty, the singular shall include the plural. This Guaranty
shall bind and inure to the benefit of Guarantor and Landlord and their
respective transferees, personal representatives, heirs, successors and assigns.
4
This Guaranty shall be governed by and construed in accordance with the laws of
the State where the premises leased by Tenant from Landlord are located.
Guarantor hereby irrevocably consents to the non-exclusive jurisdiction of the
courts of the States of Colorado and California and any federal court of the
United States of America located in the City of San Francisco, California, or
the city of Denver, Colorado. Guarantor and Landlord each waive any right to
trial by jury in connection herewith. Without limiting anything else contained
herein, the fullest extent it may effectively do so under applicable law,
Guarantor irrevocably waives and agrees not to assert, by way of motion, as a
defense or otherwise, any claim that it is not subject to the jurisdiction of
any such court, any objection that it may now or hereafter have to the laying of
the venue of any such suit, action or proceeding brought in any such court and
any claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.
7. To induce Landlord to enter into the Lease, Guarantor represents and
warrants to Landlord as follows: Guarantor is a corporation existing under the
laws of Canada, a foreign nation. Guarantor has full power and authority to
enter into this Guaranty and to perform its obligations under this Guaranty. The
execution, delivery and performance of this Guaranty by Guarantor have been duly
and validly authorized by all necessary action on the part of Guarantor and all
required consents and approvals have been duly obtained. This Guaranty is a
legal, valid and binding obligation of Guarantor, enforceable against Guarantor
in accordance with its terms, subject to the effect of applicable bankruptcy,
insolvency, reorganization, arrangement, moratorium or other similar laws
affecting the rights of creditors generally. Neither the execution and delivery
of this Guaranty nor the consummation of the transactions contemplated hereby
will conflict with, or (with or without notice or lapse of time, or both) result
in a termination, breach, impairment or violation of, or give rise to a default
under (i) any provision of Guarantor's articles of incorporation or bylaws, (ii)
any material instrument or contract to which Guarantor is a party or by which
Guarantor is bound, or (iii) any federal, state, local or foreign judgment,
writ,
5
decree, order, statute, rule or regulation applicable to Guarantor, or any
property of Guarantor.
IN WITNESS WHEREOF, Guarantor has executed this Continuing Lease Guaranty
as of the date first hereinabove written.
Guarantor:
ICG HOLDINGS (CANADA), INC., a
Federal Canadian corporation
By /s/ Xxxxx X. Xxxxxxxx
---------------------------
Xxxxx X. Xxxxxxxx
Its Executive Vice President
and Chief Financial Officer
