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Exhibit No. 10.130
AMENDED AND RESTATED GUARANTEE
AMENDED AND RESTATED GUARANTEE, dated as of October 29, 1998, made by
COGENTRIX DELAWARE HOLDINGS, INC., a Delaware corporation (the "Guarantor"), in
favor of the Borrower Creditors (as defined below).
WHEREAS, it was a condition precedent to the obligation of the
Existing Lenders and the Issuing Bank to make their respective Extensions of
Credit under the Existing Credit Agreement that the Guarantor shall have
executed and delivered the Guarantee, dated as of May 22, 1997 (the "Existing
Guarantee"), in favor of the Borrower Creditors;
WHEREAS, the Borrower and the Existing Lenders desire to amend and
restate the Existing Credit Agreement in its entirety;
WHEREAS, it is a condition precedent to the obligation of the Lenders
and the Issuing Bank to make their respective Extensions of Credit under the
Credit Agreement that the Guarantor shall have amended and restated the Existing
Guarantee;
NOW, THEREFORE, in consideration of the premises and to induce the
Agent, the Issuing Bank and the Lenders to enter into the Credit Agreement and
to induce the Lenders and the Issuing Bank to make their respective Extensions
of Credit to the Borrower under the Credit Agreement, the Guarantor hereby
agrees to amend and restate the Existing Gurantee in its entirety to read as
follows:
W I T N E S S E T H:
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WHEREAS, pursuant to the Amended and Restated Credit Agreement, dated
as of October 29, 1998 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among (i) Cogentrix Energy, Inc. (the
"Borrower"), (ii) the lenders from time to time parties thereto (the "Lenders"),
(iii) Australia and New Zealand Banking Group Limited and certain other banks
and financial institutions, as the lead arrangers (the "Lead Arrangers") and
(iv) Australia and New Zealand Banking Group Limited, as the issuing bank
thereunder (in such capacity, the "Issuing Bank") and as agent for the Lenders
(in such capacity, the "Agent"), the Lenders have severally agreed to make
certain loans to the Borrower (the "Loans") and the Issuing Bank has agreed to
issue certain letters of credit for the account of the Borrower (the "Letters of
Credit"; the Loans and the Letters of Credit, collectively, the "Extensions of
Credit") upon the terms and subject to the conditions set forth therein, the
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Loans to be evidenced by certain notes issued by the Borrower under the Credit
Agreement;
WHEREAS, the Borrower owns directly all of the issued and outstanding
stock of the Guarantor;
WHEREAS, the proceeds of the Loans will be used in part to enable the
Borrower to make valuable transfers (as determined as provided herein) to the
Guarantor in connection with the operation of its business;
WHEREAS, the Guarantor will derive substantial direct and indirect
benefit from the making of the Extensions of Credit; and
WHEREAS, it is a condition precedent to the obligation of the Lenders
and the Issuing Bank to make their respective Extensions of Credit under the
Credit Agreement that the Guarantor shall have executed and delivered this
Guarantee.
NOW, THEREFORE, in consideration of the premises and to induce the
Agent, the Issuing Bank, the Lead Arrangers and the Lenders to enter into the
Credit Agreement and to induce the Lenders and the Issuing Bank to make their
respective Extensions of Credit to the Borrower under the Credit Agreement, the
Guarantor hereby agrees as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms defined
in the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
(b) As used herein, the following terms shall have the following
meanings:
"Borrower Creditors": the collective reference to the Credit Agreement
Creditors, the Trustees, the Holders, the holders of Other Indebtedness and
their respective successors, indorsees, transferees and assigns.
"CDH Permitted Investments":
(i)(A) commercial paper of issuers organized under the laws of any
state of the United States of America rated at least "A-1" by Standard and
Poor's Rating Group ("S&P") and "Prime-1" by Xxxxx'x Investors Service,
Inc. ("Moody's");
(B) marketable direct obligations of the United States of America with
maturities of three years or less from the date of acquisition;
(C) marketable obligations directly and fully guaranteed as to
interest and principal by the United States of America with maturities of
three years or less from the date of acquisition;
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(D) demand deposits with the Agent, and time deposits, certificates of
deposit and banker's acceptances issued by (1) the Agent or (2) any member
bank of the Federal Reserve System which is organized under the laws of the
United States of America or any state thereof or any United States branch
of a foreign bank, in each case whose long-term debt securities are rated
"A" or better by S&P and "A2" or better by Moody's;
(E) obligations of the Agent, any bank described in clause (D) above
or any financial institution, in respect of the repurchase of obligations
of the type as described in clauses (B) and (C) above, provided that such
repurchase obligations shall be fully secured by obligations of the type
described in said clauses (B) and (C) and the possession of such
obligations shall be transferred to, and segregated from other obligations
owned by, the Agent, any such bank or such financial institution;
(F) eurodollar certificates of deposit issued by the Agent or any bank
described in clause (D) above;
(G) marketable asset-backed securities rated at least "AA" by S&P and
"Aa2" by Moody's;
(H) marketable debt obligations of the Federal National Mortgage
Association, the Government National Mortgage Association or the Federal
Home Loan Mortgage Association secured by a pool of mortgage loans with an
average life of three years or less from the date of acquisition and rated
at least "AA" by S&P and at least "Aa2" by Moody's; and
(I) corporate debt securities of issuers organized under the laws of
any state of the United States of America with maturities of three years or
less from the date of acquisition rated not less than "A" by S&P and "A2"
by Moody's;
provided, that for any of the securities of the types described in
subclauses (A), (B), (C), (D), (E), (F), (G), (H) or (I) above to be CDH
Permitted Investments in the hands of any Person (x) the weighted average
maturity from any date of the securities of such types owned on such date
by such Person shall not be more than one year; and (y) the value of the
securities of any single issuer rated less than "AAA" by S&P and "Aaa" by
Moody's (other than the United States of America or any agency thereof)
owned by such Person at any time shall not constitute more than 5% of the
value of all of the securities of such types owned by such Person at such
time; and
(ii) shares of money market mutual funds which invest exclusively in
assets satisfying the requirements of subclauses (A), (B), (C), (D) or (F)
of clause (i) of this definition; provided, that for any such shares of
such a fund to be CDH Permitted Investments in the hands of any Person, the
weighted average maturity from any date of the securities owned on such
date by such fund shall not be more than one year.
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"Credit Agreement Creditors": the collective reference to the Agent,
the Issuing Bank, the Lead Arrangers, and the Lenders.
"Credit Agreement Obligations": the collective reference to the unpaid
principal of and interest on the Notes issued by the Borrower under the
Credit Agreement and all other obligations and liabilities of the Borrower
in respect of the payment of any amount by the Borrower to, or deposit of
any amount by the Borrower with, the Credit Agreement Creditors or any of
them (including, without limitation, (i) interest accruing at the then
applicable rate provided in the Credit Agreement after the maturity of the
Loans and interest accruing at the then applicable rate provided in the
Credit Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
to the Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding and (ii) the obligations of the
Borrower to make deposits into the Cash Collateral Account), whether direct
or indirect, absolute or contingent, due or to become due, now existing or
hereafter incurred, which may arise under, out of, or in connection with,
the Credit Agreement, the notes issued by the Borrower thereunder, the
Letters of Credit, or any other document made, delivered or given in
connection therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to
the Agent, the Issuing Bank or to the Lenders that are required to be paid
by the Borrower or the Guarantor pursuant to the terms of the Credit
Agreement or this Guarantee).
"Guaranteed Obligations": the collective reference to (a) the Credit
Agreement Obligations, (b) the Indenture Obligations and (c) all Other
Indebtedness.
"Holders": the collective reference to the holders of the Borrower
Indenture Securities.
"Indenture Obligations": the collective reference to the unpaid
principal of and interest on the Borrower Indenture Securities and all
other obligations and liabilities of the Borrower in respect of the payment
of any amount by the Borrower to, or deposit of any amount by the Borrower
with either Trustee, or any of the Holders (including, without limitation,
(i) interest accruing at the then applicable rate provided in the
applicable Borrower Indenture after the maturity of any of the Borrower
Indenture Securities and interest accruing at the then applicable rate
provided in the applicable Borrower Indenture after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not
a claim for post-filing or post-petition interest is allowed in such
proceeding and (ii) any obligations of the Borrower to make deposits
pursuant to either Borrower Indenture into a "Sinking Fund" for the
retirement of the any of the Borrower Indenture Securities) whether direct
or indirect, absolute or contingent, due or to become due, now existing or
hereafter incurred, which may arise under, out of, or in connection with,
either of the Borrower Indentures, any of the Borrower Indenture Securities
or any other document made, delivered or given in connection therewith,
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whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation,
all fees and disbursements of counsel to either Trustee or to any of the
Holders that are required to be paid by the Borrower or the Guarantor
pursuant to the terms of the either Borrower Indenture or this Guarantee).
"Other Indebtedness": any unsecured indebtedness of the Borrower for
borrowed money, other than indebtedness constituting a Credit Agreement
Obligation or Indenture Obligation, existing on the date hereof or
hereafter incurred by the Borrower, but only to the extent the Borrower is
permitted to Incur such indebtedness under the Borrower Indentures and the
Credit Agreement.
"Trustees": the collective reference to the 2004 Trustee and the 2008
Trustee.
"2004 Trustee": the trustee under the 2004 Senior Note Indenture.
"2008 Trustee": the trustee under the 2008 Senior Note Indenture.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Guarantee shall refer to this Guarantee as a whole and
not to any particular provision of this Guarantee, and section and paragraph
references are to this Guarantee unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Guarantee. (a) Subject to the provisions of paragraph 2(b), the
Guarantor hereby, unconditionally and irrevocably, guarantees to (i) the Agent,
for the ratable benefit of the Credit Agreement Creditors and their respective
successors, indorsees, transferees and assigns, the prompt and complete payment
(and performance, in the case of deposits) by the Borrower when due (whether at
the stated maturity, by acceleration or otherwise) of the Credit Agreement
Obligations, (ii) the 2004 Trustee, for the ratable benefit of the Holders of
the 2004 Senior Notes and their respective successors, indorsees, transferees
and assigns, the prompt and complete payment (and performance, in the case of
deposits) by the Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Indenture Obligations in respect of the 2004
Senior Notes, (iii) the 2008 Trustee, for the ratable benefit of the Holders of
the 2008 Senior Notes and their respective successors, indorsees, transferees
and assigns, the prompt and complete payment (and performance, in the case of
deposits) by the Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Indenture Obligations in respect of the 2008
Senior Notes and (iv) each holder of Other Indebtedness and such holder's
successors, indorsees, transferees and assigns, the prompt and complete payment
by the Borrower when due (whether at the stated maturity, by acceleration or
otherwise) of the Other Indebtedness owed to such holder.
(b) Anything herein or in the Credit Agreement, either of the
Borrower Indentures, any agreement in respect of Other Indebtedness or any other
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document to the contrary notwithstanding, (i) the maximum liability of the
Guarantor hereunder and under the Credit Agreement, the Borrower Indentures or
any agreement in respect of Other Indebtedness shall in no event exceed the
amount which can be guaranteed by the Guarantor under applicable federal and
state laws relating to the insolvency of debtors and (ii) the Guarantor shall
not be liable, on account of the Borrower's failure to pay or perform any
Guaranteed Obligation owed to any Borrower Creditor when due, to pay to such
Borrower Creditor any amount hereunder or under the Credit Agreement, the
Borrower Indentures or any agreement in respect of Other Indebtedness unless the
Guarantor shall have more than $150,000 in assets (other than assets
constituting Investments in Subsidiaries but including, without limitation, CDH
Permitted Investments) on the day that such failure occurred or thereafter.
(c) The Guarantor further agrees to pay any and all expenses
(including, without limitation, all fees and disbursements of counsel) which may
be paid or incurred by any Borrower Creditor in enforcing, or obtaining advice
of counsel in respect of, any rights with respect to, or collecting, any or all
of the Guaranteed Obligations and/or enforcing any rights with respect to, or
collecting against, the Guarantor under this Guarantee.
(d) No payment or payments made by the Borrower, the Guarantor,
any other guarantor or any other Person or received or collected by any Borrower
Creditor from the Borrower, the Guarantor, any other guarantor or any other
Person by virtue of any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or in payment of
any of the Guaranteed Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of the Guarantor hereunder which shall,
notwithstanding any such payment or payments other than payments made by the
Guarantor in respect of the Guaranteed Obligations or payments received or
collected from such Guarantor in respect of the Guaranteed Obligations, remain
liable for the Guaranteed Obligations up to the maximum liability of the
Guarantor hereunder.
3. Right of Set-off. The Guarantor hereby irrevocably authorizes
each Borrower Creditor at any time and from time to time without notice to the
Guarantor, any such notice being expressly waived by the Guarantor, to set-off
and appropriate and apply any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Borrower Creditor to or for the credit or the account of the
Guarantor, or any part thereof in such amounts as such Borrower Creditor may
elect, against and on account of the obligations and liabilities of the
Guarantor to the Borrower Creditor hereunder, in any currency, whether arising
hereunder, under the Credit Agreement, either of the Borrower Indentures, any
note issued by the Borrower under the Credit Agreement or either of the Borrower
Indentures, any agreement in respect of Other Indebtedness or otherwise, as such
Borrower Creditor may elect, whether or not any Borrower Creditor has made any
demand for payment and although such obligations, liabilities and claims may be
contingent or unmatured. The Borrower Creditor shall notify the Guarantor
promptly of any such set-off and the application made by such Borrower Creditor,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Borrower Creditor under this
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Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Borrower Creditor may have.
4. No Subrogation. Notwithstanding any payment or payments made
by the Guarantor hereunder or any set-off or application of funds of any of the
Guarantor by any Borrower Creditor, the Guarantor shall not be entitled to be
subrogated to any of the rights of any Borrower Creditor against the Borrower or
any collateral security or guarantee or right of offset held by any Borrower
Creditor for the payment of any of the Guaranteed Obligations, nor shall the
Guarantor seek or be entitled to seek any contribution or reimbursement from the
Borrower in respect of payments made by the Guarantor hereunder.
5. Amendments, etc. with respect to the Guaranteed Obligations;
Waiver of Rights. The Guarantor shall remain obligated hereunder notwithstanding
that, without any reservation of rights against the Guarantor and without notice
to or further assent by the Guarantor, any demand for payment of any of the
Guaranteed Obligations made by any Borrower Creditor may be rescinded by such
party and any of the Guaranteed Obligations continued, and the Guaranteed
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
any Borrower Creditor, and the Credit Agreement, either of the Borrower
Indentures, any note issued by the Borrower under the Credit Agreement or either
of the Borrower Indentures, any agreement in respect of Other Indebtedness and
any other documents executed and delivered in connection with the Credit
Agreement, either of the Borrower Indentures, or any agreement in respect of
Other Indebtedness, may be amended, modified, supplemented or terminated, in
whole or in part, as the parties thereto may deem advisable from time to time,
and any collateral security, guarantee or right of offset at any time held by
any Borrower Creditor for the payment of any of the Guaranteed Obligations may
be sold, exchanged, waived, surrendered or released. When making any demand
hereunder against the Guarantor, a Borrower Creditor may, but shall be under no
obligation to, make a similar demand on the Borrower or any other guarantor, and
any failure by any Borrower Creditor to make any such demand or to collect any
payments from the Borrower or any such guarantor or any release of the Borrower
or such other guarantor shall not relieve the Guarantor of its obligations or
liabilities hereunder, and shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of any Borrower Creditor against the
Guarantor. For the purposes hereof "demand" shall include the commencement and
continuance of any legal proceedings.
6. Guarantee Absolute and Unconditional. The Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Guaranteed Obligations and notice of or proof of reliance by any Borrower
Creditor upon this Guarantee or acceptance of this Guarantee, the Guaranteed
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Guarantee (subject in each case to the right of the Guarantor and the
Agent to waive, amend, supplement and modify this Guarantee as provided in
paragraph 14(a) hereof and the termination of this Guarantee and the discharge
of the Guarantor's obligations hereunder as provided in Section 15); and all
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dealings between the Borrower and the Guarantor, on the one hand, and any of the
Borrower Creditors, on the other hand, likewise shall be conclusively presumed
to have been had or consummated in reliance upon this Guarantee (subject in each
case to the right of the Guarantor and the Agent to waive, amend, supplement and
modify this Guarantee as provided in paragraph 14(a) hereof and the termination
of this Guarantee and the discharge of the Guarantor's obligations hereunder as
provided in Section 15). The Guarantor waives diligence, presentment, protest,
demand for payment and notice of default or nonpayment to or upon the Borrower
or the Guarantor with respect to any of the Guaranteed Obligations. The
Guarantor understands and agrees that this Guarantee shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity, regularity or enforceability of the Credit Agreement, either
of the Borrower Indentures, any note issued by the Borrower under the Credit
Agreement either of the Borrower Indentures, any agreement in respect of any
Other Indebtedness, any of the Guaranteed Obligations or any other collateral
security therefor or guarantee or right of offset with respect thereto at any
time or from time to time held by any Borrower Creditor, (b) any defense,
set-off or counterclaim (other than a defense of payment or performance) which
may at any time be available to or be asserted by the Borrower against any
Borrower Creditor, or (c) any other circumstance whatsoever (with or without
notice to or knowledge of the Borrower or the Guarantor) which constitutes, or
might be construed to constitute, an equitable or legal discharge of the
Borrower for any of the Guaranteed Obligations, or of the Guarantor under this
Guarantee, in bankruptcy or in any other instance. When pursuing its rights and
remedies hereunder against the Guarantor, any Borrower Creditor may, but shall
be under no obligation to, pursue such rights and remedies as it may have
against the Borrower or any other Person or against any collateral security or
guarantee for any of the Guaranteed Obligations or any right of offset with
respect thereto, and any failure by any Borrower Creditor to pursue such other
rights or remedies or to collect any payments from the Borrower or any such
other Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of the Borrower or any such
other Person or any such collateral security, guarantee or right of offset,
shall not relieve the Guarantor of any liability hereunder, and shall not impair
or affect the rights and remedies, whether express, implied or available as a
matter of law, of any Borrower Creditor against the Guarantor.
7. Reinstatement. This Guarantee shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Guaranteed Obligations is rescinded or must otherwise be
restored or returned by any Borrower Creditor upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Borrower or the Guarantor, or
upon or as a result of the appointment of a receiver, intervenor or conservator
of, or trustee or similar officer for, the Borrower or the Guarantor or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
8. Payments. The Guarantor hereby guarantees to each of the
Credit Agreement Creditors that payments hereunder in respect of the Credit
Agreement Obligations will be paid to the Agent without set-off or counterclaim
in U.S. Dollars at the office of the Agent located at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
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9. Representations and Warranties. The Guarantor hereby
represents and warrants to each of the Credit Agreement Creditors (and not to
any other Borrower Creditor): 15.
(a) The Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority and the legal right to
own and operate its property, to lease the property it operates and to conduct
the business in which it is currently engaged.
(b) The Guarantor has the corporate power and authority and the
legal right to execute and deliver, and to perform its obligations under, this
Guarantee, and has taken all necessary corporate action to authorize its
execution, delivery and performance of this Guarantee.
(c) This Guarantee constitutes a legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms, except as
affected by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting the enforcement of
creditors' rights generally, general equitable principles and an implied
covenant of good faith and fair dealing.
(d) The execution, delivery and performance of this Guarantee
will not violate any provision of any Requirement of Law or Contractual
Obligation of the Guarantor and will not result in or require the creation or
imposition of any Lien on any of the properties or revenues of such Guarantor
pursuant to any Requirement of Law or Contractual Obligation of the Guarantor.
(e) No consent or authorization of, filing with, or other act by
or in respect of, any arbitrator or Governmental Authority and no consent of any
other Person (including, without limitation, any stockholder or creditor of the
Guarantor) is required in connection with the execution, delivery, performance,
validity or enforceability of this Guarantee.
(f) No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the
Guarantor, threatened by or against the Guarantor or against any of its
properties or revenues with respect to this Guarantee or any of the transactions
contemplated hereby or which could have a material adverse effect on the
business, operations, property or financial or other condition of the Guarantor.
(g) The Guarantor has good title in all its property, and none of
its property is subject to any Lien of any nature whatsoever except as permitted
under paragraph 10(a) hereof.
(h) The Guarantor has filed or caused to be filed all tax returns
which, to its knowledge, are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than any the amount or
validity of which are currently being contested in good faith by appropriate
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proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of such Guarantor). No tax Lien has been filed, and, to
the knowledge of the Guarantor, no claim is being asserted, with respect to any
such tax, fee or other charge.
(i) The unaudited balance sheet of the Guarantor as at December
31, 1997 and the related unaudited statement of income for the fiscal period
ended on such date, certified by a Responsible Officer, copies of which have
heretofore been furnished to each Lender, are complete and correct and present
fairly the financial condition of the Guarantor as at such date, and the results
of its operations for the fiscal year then ended. The unaudited balance sheet of
such Guarantor as at June 30, 1998 and the related unaudited statement of income
for the six-month period ended on such date, certified by a Responsible Officer,
copies of which have heretofore been furnished to each Lender, are complete and
correct and present fairly the financial condition of the Guarantor as at such
date, and the results of its operations for the six-month period then ended
(subject to normal year-end audit adjustments). All such financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the periods involved. At
the date of the most recent balance sheet referred to above, the Guarantor had
no material Guarantee Obligation, contingent liability or liability for taxes,
or any long-term lease or unusual forward or long-term commitment, including,
without limitation, any interest rate or foreign currency swap or exchange
transaction or other financial derivative, which is not reflected in the
foregoing statements or in the notes thereto. During the period from June 30,
1998, to and including the date of this Guarantee there has been no sale,
transfer or other disposition by the Guarantor of any material part of its
business or property and no purchase or other acquisition of any business or
property (including any Capital Stock of any other Person) material in relation
to the financial condition of the Guarantor at June 30, 1998.
(j) The Borrower directly owns 100% of the outstanding shares of
Capital Stock of the Guarantor.
10. Covenants. The Guarantor hereby covenants and agrees with
each of the Credit Agreement Creditors (and not with any other Borrower
Creditor) as follows:
(a) The Guarantor shall not Incur, assume, create or otherwise
cause or suffer to exist, directly or indirectly, any Debt (other than Debt
under this Guarantee) and shall not grant or cause or suffer to exist any Lien
on any property of the Guarantor now owned or hereafter acquired by the
Guarantor (other than the Liens granted under the Cash Collateral Agreement).
Notwithstanding the previous sentence of this paragraph 10(a), so long as all
Debt secured by each such Lien described below in clauses (i), (ii) and (iii) of
this sentence is Non-Recourse to the Guarantor, the Guarantor may grant or cause
or suffer to exist: (i) Liens on the Guarantor's interests in Subsidiaries and
Joint Ventures in which the Guarantor is a partner, shareholder, member or other
participant, which Liens are granted in good faith in connection with the
acquisition of such assets or as part of the financing of a Power Generation
Facility; provided that such Liens are required in order to effect such
financing and are not materially more restrictive, taken as a whole, than Liens,
taken as a whole, customarily accepted (or in the absence of any industry
custom, reasonably acceptable) in substantially Non-Recourse project financing;
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(ii) Liens on the stock or partnership interest of Subsidiaries of the Guarantor
and interests in Joint Ventures in which the Guarantor becomes a partner,
shareholder, member or other participant which Liens are granted in good faith
as part of a project financing or the development of a project; provided that
such Liens are required in order to effect such transaction and are not
materially more restrictive, taken as a whole, than Liens, taken as a whole,
customarily accepted (or in the absence of any industry custom, reasonably
acceptable) in substantially Non-Recourse project financing; and (iii) Liens in
respect of extensions, renewals, refunding or Refinancing of any Debt secured by
the Liens referred to in clauses (i) or (ii) above, provided that the Liens in
connection with such renewal, extension, refunding or Refinancing shall be
limited to all or part of the specific Property which was subject to the
original Lien.
(b) The Guarantor shall not create or otherwise cause or suffer
to exist or become effective any consensual encumbrance or restriction of any
kind on its ability to (i) pay dividends or make other distributions permitted
by applicable law on any of its Capital Stock, (ii) make payments in respect of
any Debt owed to the Borrower, (iii) make loans or other advances to the
Borrower or (iv) transfer any of its property to the Borrower, other than those
encumbrances and restrictions created or existing (1) pursuant to either of the
Borrower Indentures as in effect on the date hereof, the Credit Agreement or
this Guarantee; (2) customary non-assignment provisions in leases or other
contracts entered into in the ordinary course of business of the Guarantor; and
(3) as a result of any Lien on the property of the Guarantor permitted under
paragraph 10(a) hereof.
(c) The Guarantor shall not make any advance, loan, extension of
credit or capital contribution to, or purchase any stock, bonds, notes,
debentures or other securities of or any assets constituting a business unit of,
or make any other Investment in, any Person, other than (i) Investments in any
Subsidiary of the Guarantor (or any Person that will become a Subsidiary of the
Guarantor as a result of such Investment) that the Borrower is permitted to
allow the Guarantor to make under the Credit Agreement (including, without
limitation, subsection 7.4 thereof), and the Borrower Indentures and (ii) CDH
Permitted Investments; provided, that (1) so long as the total of the aggregate
amount of CDH Permitted Investments owned by the Borrower plus the aggregate
amount of CDH Permitted Investments owned by the Guarantor (exclusive of, in the
case of both the Borrower and the Guarantor, any CDH Permitted Investments
subject to or otherwise covered by any Lien other than the Lien created under
the Credit Agreement in the Cash Collateral Account) shall have a value of $50
million or more, the Guarantor may make any Investment that the Borrower is
permitted to allow the Guarantor to make under the Credit Agreement (including,
without limitation, subsection 7.4 thereof), and the Borrower Indentures and (2)
the Guarantor may make loans to AGRO Power Development, Inc. and its Affiliates,
for purposes of financing its or their acquisition, construction, operation or
development of greenhouses in which the Borrower or one of its Subsidiaries has
or will have an interest, in an aggregate principal amount not to exceed $10
million at any time, but only to the extent that the Borrower is permitted to
allow the Guarantor to make such loans under the Credit Agreement (including,
without limitation, subsection 7.4 thereof) and the Borrower Indentures.
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11. Authority of Agent. The Guarantor acknowledges that the
rights and responsibilities of the Agent under this Guarantee with respect to
any action taken by the Agent or the exercise or non-exercise by the Agent of
any option, right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Guarantee shall, as between the Agent
and the other Credit Agreement Creditors, be governed by the Credit Agreement
and by such other agreements with respect thereto as may exist from time to time
among them, but, as between the Agent and such Guarantor, the Agent shall be
conclusively presumed to be acting as agent for the other Credit Agreement
Creditors with full and valid authority so to act or refrain from acting, and
the Guarantor shall not be under any obligation, or entitlement, to make any
inquiry respecting such authority.
12. Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13. Integration. This Guarantee represents the agreement of the
Guarantor with respect to the subject matter hereof and there are no promises or
representations by any Borrower Creditor relative to the subject matter hereof
not reflected herein.
14. Amendments in Writing; No Waiver; Cumulative Remedies. (a)
The terms or provisions of this Guarantee may be waived, amended, supplemented
or otherwise modified at any time and from time to time by a written instrument
executed by the Guarantor and the Agent but not by any other means. Any waiver,
amendment, supplement or modification pursuant to this paragraph 14(a) shall be
effective as against all of the Borrower Creditors notwithstanding any reliance
by the Borrower Creditors or any of them on this Guarantee prior thereto.
(b) Neither the Agent nor any other Credit Agreement Creditor nor
the Trustee nor any Holder nor any other Borrower Creditor shall by any act,
delay, indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any breach of any of the terms and
conditions hereof. No failure to exercise, nor any delay in exercising, on the
part of the Agent, any other Credit Agreement Creditor, either Trustee, any
Holder or any other Borrower Creditor, any right, power or privilege hereunder
shall operate as a waiver thereof. No single or partial exercise of any right,
power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A waiver by the
Agent, any other Credit Agreement Creditor, either Trustee, any Holder or any
other Borrower Creditor of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the Agent, such
other Credit Agreement Creditor, either Trustee, such Holder or such other
Borrower Creditor would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may
be exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
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15. Discharge. This Guarantee and the Guarantor's obligations
hereunder shall remain in full force and effect until all Credit Agreement
Obligations shall have been paid and performed in full and all Letters of Credit
shall have expired or been terminated (notwithstanding that from time to time
the Borrower may be free from any Credit Agreement Obligations) and, except as
otherwise provided in Section 7 hereof, thereafter this Guarantee shall
terminate and all of the Guarantor's obligations hereunder shall be discharged
in full.
16. Section Headings. The section headings used in this Guarantee
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
17. Successors and Assigns. This Guarantee shall be binding upon
the successors and assigns of the Guarantor and shall inure to the benefit of
each Borrower Creditor and each Borrower Creditor's successors, indorsees,
transferees and assigns.
18. Governing Law. This Guarantee shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be
duly executed and delivered by its duly authorized officer as of the day and
year first above written.
COGENTRIX DELAWARE HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXXXXX
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Title: Senior Vice President -
Finance and Treasurer
