EXHIBIT 10.33
1
SWING LINE NOTE
U.S.$5,000,000.00 Dated: November 20, 1998
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC., a
Delaware corporation (the "Borrower"), hereby unconditionally promises to pay on
the Maturity Date to the order of NATIONSBANK, N.A. (the "Lender"), and its
successors and assigns, the principal amount of the lesser of (x) FIVE MILLION
UNITED STATES DOLLARS ($5,000,000.00) and (y) the aggregate amount of Swing Line
Loans made by the Lender to the Borrower pursuant to the Agreement (as
hereinafter defined) and remaining outstanding on such date. Capitalized terms
used (but not defined) in this Swing Line Note shall have the meanings given to
them in the Agreement (as hereinafter defined).
The Borrower promises to pay interest from the initial Funding
Date of such Swing Line Loans until the Maturity Date on the principal amount of
this Swing Line Note from time to time outstanding at the rate, and in the
manner, prescribed in the Agreement. Any principal amount of, or any interest
accrued on, this Swing Line Note which is not paid on the date due shall bear
interest from such due date until paid in full at the Default Rate. In no event
shall the rate of interest borne by this Swing Line Note at any time exceed the
maximum rate of interest permitted at that time under applicable law.
Payments of the principal amount of and interest on this Swing
Line Note shall be made in lawful money of the United States of America to the
Lending Office of the Agent on behalf of the Lender as provided in the
Agreement.
This Swing Line Note is the Swing Line Note referred to in the
Revolving Credit Agreement, dated as of November 20, 1998 (as the same may from
time to time be amended, modified or supplemented, the "Agreement"), between the
Lender, the other lenders from time to time a party thereto, if any, the
Borrower and NationsBank, N.A., as Agent. The Lender is entitled to the rights
and benefits of the Agreement and the other Credit Documents, and the Agent, for
the benefit of the Lender, is entitled to the benefits provided under the
Borrower Security Agreement, the Subsidiary Security Agreements, any Pledge
Agreement and the Subsidiary Guarantee. The Agreement, among other things,
contains provisions for optional and mandatory prepayments on account of the
principal of this Swing Line Note by the Borrower and for acceleration of the
maturity of this Swing Line Note upon the terms and conditions therein
specified.
THIS SWING LINE NOTE IS BEING ISSUED IN THE COMMONWEALTH OF
VIRGINIA AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA WITHOUT REGARD TO THE CONFLICTS OF
LAWS PRINCIPLES.
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
and Chief Financial Officer
EXHIBIT 10.34
1565244
SUBSIDIARY GUARANTEE
SUBSIDIARY GUARANTEE, dated as of November 20, 1998 (this "Guarantee"),
is made by each of the entities that are signatories hereto (the "Guarantors")
in favor of NATIONSBANK, N.A., as Agent (in such capacity, the "Agent") for the
lenders and other financial institutions (the "Lenders") that are from time to
time parties to the Revolving Credit Agreement described below.
W I T N E S S E T H:
WHEREAS, ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC., a Delaware corporation (the "Company"),
is party to the Revolving Credit Agreement, dated as of November 20, 1998, among
the Company, the Lenders and the Agent (as amended, supplemented or otherwise
modified from time to time, the "Revolving Credit Agreement");
WHEREAS, pursuant to the terms of the Revolving Credit Agreement and
the other Credit Documents, the Lenders have severally agreed to make extensions
of credit in the form of Revolving Loans, Swing Line Loans and Standby Letters
of Credit to or for the benefit of the Company;
WHEREAS, except as set forth in the Revolving Credit Agreement or the
schedules attached thereto, the Company owns, directly or indirectly, all of the
issued and outstanding shares of capital of stock of, or other equity interests
in, each of the Guarantors;
WHEREAS, the proceeds of such Revolving Loans, Swing Line Loans and
Standby Letters of Credit may be used to enable the Company to make valuable
transfers to any or all of the Guarantors in connection with the operation of
their respective businesses and for the Permitted Uses;
WHEREAS, each Guarantor will derive substantial direct and indirect
benefit from such Revolving Loans, Swing Line Loans and Standby Letters of
Credit; and
WHEREAS, the obligation of the Lenders to make the Revolving Loans,
Swing Line Loans and issue the Standby Letters of Credit is conditioned upon,
among other things, the execution and delivery by each of the Guarantors of a
guarantee to the Agent for the benefit of the Agent and for the ratable benefit
of the Lenders;
NOW, THEREFORE, in consideration of the premises, the commercial
benefits accruing to each Guarantor and to induce the Lenders to enter into the
Revolving Credit Agreement and to make the Revolving Loans and the Swing Line
Loans and to issue the Standby Letters of Credit, each Guarantor hereby agrees
with and for the benefit of the Agent and the Lenders as follows:
SECTION 1. Defined Terms. As used in this Guarantee, terms defined in
the Revolving Credit Agreement (unless otherwise defined herein) are used herein
as therein defined, and the following terms shall have the following meanings
(such meanings to be, when appropriate, equally applicable to both the singular
and plural forms of the terms defined):
"Agent" shall have the meaning specified in the preamble hereof.
"Guarantee" shall have the meaning specified in the preamble hereof.
"Guarantors" shall have the meaning specified in the preamble hereof.
"Lenders" shall have the meaning specified in the preamble hereof.
"Maximum Guaranteed Amount" for any Guarantor shall mean the amount which can be
guaranteed by such Guarantor under applicable federal and state laws relating to
the insolvency of debtors.
"Revolving Credit Agreement" shall have the meaning specified in the first
whereas clause hereof.
SECTION 2. Guarantee.
(a) Each of the Guarantors hereby, jointly and severally, absolutely,
unconditionally and irrevocably guarantees to the Agent and the Lenders and
their respective successors, indorsees, transferees and assigns the prompt and
complete payment by the Company when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations, and each Guarantor further agrees
to pay any and all expenses (including, without limitation, all reasonable fees
and disbursements of counsel) which may be paid or incurred by the Agent or any
Lender in enforcing, or obtaining advice of counsel in respect of, any rights
with respect to, or collecting, any or all of the Obligations and/or enforcing
any rights with respect to, or collecting against, such Guarantor under this
Guarantee; provided, however, that, notwithstanding anything to the contrary
contained herein or in any other Credit Document, the maximum liability of each
Guarantor hereunder and under the other Credit Documents shall in no event
exceed such Guarantor's Maximum Guaranteed Amount. This Guarantee constitutes a
present and continuing guarantee of payment and performance when due and not of
collection, and each of the Guarantors, as a primary obligor and not as a
surety, specifically agrees that no Guarantor shall be entitled to require that
the Agent or any Lender exercise any right, assert any claim or demand,
foreclose against or enforce any remedy whatsoever against the Company (or any
other Person) before or as a condition to the obligations of such Guarantor
hereunder. Each Guarantor hereby acknowledges that it is fully aware of the
terms and conditions and has received a copy of each Credit Document to which it
or any other Credit Party is a party and is fully aware of the transactions
contemplated thereby.
(b) Each Guarantor agrees that the Obligations may at any time and from time to
time exceed the Maximum Guaranteed Amount of such Guarantor or of all of the
Guarantors without impairing this Guarantee or affecting the rights and remedies
of the Agent and the Lenders hereunder.
(c) No payment or payments made by the Company, any of the Guarantors, any other
guarantor or any other Person or received or collected by the Agent or any
Lender from the Company, any of the Guarantors, 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
the Obligations shall be deemed to modify, reduce, release or otherwise affect
the liability of any Guarantor hereunder which shall, notwithstanding any such
payment or payments other than payments made by such Guarantor in respect of the
Obligations or payments received or collected from such Guarantor in respect of
the Obligations, remain liable for the Obligations up to its Maximum Guaranteed
Amount until such time as the Obligations are paid in full, no Standby Letters
of Credit are outstanding or not fully cash collateralized and the Commitments
are terminated.
(d) Each Guarantor agrees that whenever, at any time or from time to time, it
shall make any payment to the Agent or any Lender on account of its liability
hereunder, it will notify the Agent in writing that such payment is made under
this Guarantee for such purpose.
SECTION 3. Right of Contribution. Each Guarantor hereby agrees
that to the extent that a Guarantor shall have paid more than its proportionate
share of any payment made hereunder, such Guarantor shall be entitled to seek
and receive contribution from and against any other Guarantor hereunder who has
not paid its proportionate share of such payment. Each Guarantor's right of
contribution shall be subject to the terms and conditions of Section 5 hereof.
The provisions of this Section 3 shall in no respect limit the obligations and
liabilities of any Guarantor to the Agent and the Lenders, and each Guarantor
shall remain liable to the Agent and the Lenders for the full amount guaranteed
by such Guarantor hereunder.
SECTION 4. Right of Set-off. Upon the occurrence and during
the continuance of any Event of Default specified in the Revolving Credit
Agreement, each Guarantor hereby irrevocably authorizes each Lender at any time
and from time to time without notice to such Guarantor or any other Guarantor,
any such notice being expressly waived by each 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 Lender to or
for the credit or the account of such Guarantor, or any part thereof, in such
amounts as such Lender may elect, against and on account of the obligations and
liabilities of such Guarantor to such Lender hereunder and claims of every
nature and description of such Lender against such Guarantor, in any currency,
whether arising hereunder, under the Revolving Credit Agreement, the Revolving
Notes, the Swing Line Note, the Standby Letters of Credit or otherwise under any
other Credit Document, as such Lender may elect, whether or not the Agent or any
Lender has made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. Each Lender agrees to
notify such Guarantor promptly of any such set-off and the application made by
such Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Lender may have.
SECTION 5. Subrogation, etc. Notwithstanding any payment or
payments made by any of the Guarantors hereunder or any set-off or application
of funds of any of the Guarantors by any Lender, no Guarantor shall exercise any
of the rights of the Agent or any Lender which the Guarantor may acquire by way
of subrogation, by any payment made hereunder, by reason of such set-off or
application of funds or otherwise, against the Company or any other Guarantor or
any collateral security or guarantee or right of set-off held by any Lender for
the payment of the Obligations, nor shall any Guarantor seek or be entitled to
seek any contribution or reimbursement from the Company or any other Guarantor
in respect of payments made by such Guarantor hereunder, until all amounts owing
to the Agent and the Lenders by the Company on account of the Obligations are
paid in full, no Standby Letters of Credit are outstanding or not fully cash
collateralized and the Commitments are terminated. If any amount shall be paid
to any Guarantor on account of such subrogation or reimbursement rights at any
time when all of the Obligations shall not have been paid in full, any Standby
Letter of Credit shall be outstanding or not fully cash collateralized or the
Commitments shall not have been terminated, such amount shall be held by such
Guarantor in trust for the Agent and the Lenders, segregated from other funds of
such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned
over to the Agent in the exact form received by such Guarantor (duly indorsed by
such Guarantor to the Agent, if required), to be applied against the
Obligations, whether matured or unmatured, in such order as required by the
applicable Credit Documents.
SECTION 6. Amendments, etc. with respect to the Obligations;
Waiver of Rights. Each Guarantor shall remain obligated hereunder
notwithstanding that, without any reservation of rights against any Guarantor
and without notice to or further assent by any Guarantor, (i) any demand for
payment of any of the Obligations made by the Agent or any Lender may be
rescinded by such party and any of the Obligations continued, (ii) the
Obligations, or the liability of any other party upon or for any part thereof,
may, from time to time, in whole or in part, be renewed, extended, amended,
modified, accelerated, compromised, waived, surrendered or released by the Agent
or any Lender, (iii) the Revolving Credit Agreement, the Revolving Notes, the
Swing Line Note, the other Credit Documents, any Standby Letter of Credit and
any other collateral security document or other guarantee or document in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Agent and/or any Lender may deem advisable from time to
time, and (iv) any collateral security, guarantee or right of set-off at any
time held by the Agent or any Lender for the payment of the Obligations may be
sold, exchanged, waived, surrendered or released. Neither the Agent nor any
Lender shall have any obligation to protect, secure, perfect or insure any Lien
at any time held by it as security for the Obligations or for this Guarantee or
any property subject thereto. When making any demand hereunder against any of
the Guarantors, the Agent or any Lender may, but shall be under no obligation
to, make a similar demand on the Company or any other Guarantor or guarantor,
and any failure by the Agent or any Lender to make any such demand or to collect
any payments from the Company or any such other Guarantor or guarantor or any
release of the Company or such other Guarantor or guarantor shall not relieve
any of the Guarantors in respect of which a demand or collection is not made or
any of the Guarantors not so released of their several obligations or
liabilities hereunder, and shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of the Agent or any Lender against
any of the Guarantors. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings. EACH GUARANTOR EXPRESSLY
AND IRREVOCABLY WAIVES THE BENEFITS AFFORDED TO IT UNDER SECTIONS 49-25 AND
49-26 OF THE CODE OF VIRGINIA (1950), AS AMENDED, OR ANY SIMILAR STATUTE OR
COMMON LAW.
SECTION 7. Guarantee Absolute and Unconditional. Each
Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of reliance by the
Agent or any Lender upon this Guarantee or acceptance of this Guarantee. The
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, annexed or waived, in reliance
upon this Guarantee, and all dealings between the Company or any of the
Guarantors and the Agent or any Lender shall likewise be conclusively presumed
to have been had or consummated in reliance upon this Guarantee. Each Guarantor
waives diligence, presentment, protest, demand for payment and notice of default
or nonpayment to or upon the Company or any of the Guarantors with respect to
the Obligations or this Guarantee. Each Guarantor understands and agrees that
this Guarantee shall be construed as a continuing, absolute and unconditional
guarantee of payment, and not of collection, without regard to (whether or not
the Guarantor or the Company shall have any knowledge or notice of any of the
following) (a) the validity, regularity or enforceability of the Revolving
Credit Agreement, the Revolving Notes, the Swing Line Note, the Standby Letters
of Credit, any of the other Credit Documents, any of the Obligations or any
other collateral security therefore or guarantee or right of set-off with
respect thereto at any time or from time to time held by the Agent or any
Lender, (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 Company against the Agent or any Lender, (c) any termination, amendment or
modification of, or deletion from, or addition or supplement to, or other change
in any of the Credit Documents or any other instrument or agreement applicable
to any of the parties to such agreements, or any furnishing or acceptance of
additional security, or any release of, exchange or action with respect to any
security, for the obligations of the Company under the Credit Documents, or the
failure of any security or the failure of any Person to perfect any interest in
any collateral security; (d) any exercise, nonexercise or waiver of any right,
remedy, power or privilege under or in respect of any Credit Document or any
obligation or liability contained therein or any failure to mitigate damages
under any Credit Document or any waiver of any such right, remedy, power or
privilege or any failure to give any notice (including notice of an Event of
Default) to any Credit Party; (e) any extension of time for payment of any
Obligation, or of the time for performance of any other obligations, covenants
or agreements under or arising out of any Credit Document, or the extension or
the renewal of any thereof; and (f) any other law, rule, regulation, event,
condition or circumstance whatsoever (with or without notice to or knowledge of
the Company or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Company for the Obligations,
or of such Guarantor under this Guarantee (or of a guarantor or surety in
general), in bankruptcy or in any other instance. When pursuing its rights and
remedies hereunder against any Guarantor, the Agent and any Lender may, but
shall be under no obligation to, pursue such rights and remedies as it may have
against the Company or any other Person or against any collateral security or
guarantee for the Obligations or any right of set-off with respect thereto, and
any failure by the Agent or any Lender to pursue such other rights or remedies
or to collect any payments from the Company or any such other Person or to
realize upon any such collateral security or guarantee or to exercise any such
right of set-off, or any release of the Company or any such other Person or any
such collateral security, guarantee or right of set-off, shall not relieve such
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 the
Agent or any Lender against such Guarantor. This Guarantee shall remain in full
force and effect and be binding in accordance with and to the extent of its
terms upon each Guarantor and the successors and assigns thereof, and shall
inure to the benefit of the Agent and the Lenders, and their respective
successors, indorsees, transferees and assigns, until all the Obligations and
the obligations of each Guarantor under this Guarantee shall have been satisfied
by payment in full, no Standby Letter of Credit shall remain outstanding or not
fully cash collateralized and the Commitments shall be terminated,
notwithstanding that from time to time during the term of the Revolving Credit
Agreement the Company may be free from any Obligations.
SECTION 8. Reinstatement. This Guarantee shall continue to be
effective, or be reinstated automatically, as the case maybe, if at any time
payment, or any part thereof, of any of the Obligations is rescinded or must
otherwise be restored or returned by the Agent or any Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Company or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Company or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made. If an event permitting the
declaration of default under a Credit Document shall at any time have occurred
and be continuing, and such declaration of default shall at such time be
prevented by reason of the pendency against the Company or any other Person of a
case or proceeding under a bankruptcy or insolvency law, each Guarantor agrees
that, for purposes of this Guarantee and its obligations hereunder, such Credit
Document shall be deemed to have been declared in default with the same effect
as if such Credit Document had been enforceable in accordance with the terms
thereof, and each Guarantor shall forthwith pay the amounts specified by the
Agent or any Lenders to be paid thereunder, any interest thereon and any other
amounts guaranteed hereunder without further notice or demand.
SECTION 9. Payments; Execution and Delivery Taxes. Each
Guarantor hereby guarantees that payments hereunder will be paid to the Agent
without set-off or counterclaim in U.S. Dollars at the office of the Agent
located at NationsBank, N.A., ▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇, VA-200-05-02, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other office of the Agent in the
United States of America as the Agent may from time to time designate to the
Guarantors by written notice.
SECTION 10. Representations and Warranties. Each Guarantor hereby
represents and warrants that:
(a) such Guarantor is a corporation, limited liability company
or partnership, as the case may be, duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is organized and has the
corporate, limited liability company or partnership 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) such Guarantor has the corporate, limited liability
company or partnership 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, limited liability company or partnership action to
authorize its execution, delivery and performance of this Guarantee;
(c) this Guarantee constitutes the legal, valid and binding
obligations of such Guarantor enforceable against such Guarantor in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law);
(d) the execution, delivery and performance by such Guarantor
of this Guarantee will not violate any certificate of incorporation, by-laws or
other charter or formation documents, or any applicable law, rule or regulation
or any contract, agreement or instrument (including agreements or instruments of
indebtedness) applicable to or binding upon such Guarantor;
(e) no consent or authorization of, filing with, or other act
by or in respect of, any arbitrator or Governmental Body and no consent of any
other Person (including, without limitation, any stockholder or creditor of such
Guarantor) is required in connection with the execution, delivery, performance,
validity or enforceability by or against such Guarantor of this Guarantee; and
(f) there is no action, suit, investigation or proceeding by
or before any court, administrative agency or other governmental authority
pending or, to the knowledge of such Guarantor, threatened which involves any of
the transactions contemplated by this Guarantee or would affect materially the
ability (financial or otherwise) of such Guarantor to perform its obligations
hereunder.
Each Guarantor agrees that the foregoing representations and warranties
shall be deemed to have been made by such Guarantor on each Funding Date by the
Company under the Revolving Credit Agreement on and as of such Funding Date as
though made hereunder on and as of such Funding Date.
SECTION 11. 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.
SECTION 12. 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.
SECTION 13. No Waiver; Cumulative Remedies. Neither the Agent nor any
Lender shall, by any act (except by a written instrument pursuant to Section 14
hereof), delay, indulgence, omission or otherwise be deemed to have waived any
right or remedy hereunder or to have acquiesced in any default or Event of
Default or 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 or any
Lender, 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 or any Lender 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 or such Lender would otherwise have
on any future occasion. The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any rights or
remedies provided by law.
SECTION 14. Integration; Waivers and Amendments; Successors and
Assigns; Governing Law. This Guarantee represents the agreement of each
Guarantor with respect to the subject matter hereof and there are no promises or
representations by the Agent or any Lender relative to the subject matter hereof
not reflected herein. None of the terms or provisions of this Guarantee may be
waived, amended or supplemented or otherwise modified except by a written
instrument executed by each Guarantor and the Agent, provided that any provision
of this Guarantee may be waived by the Agent in a letter or agreement executed
by the Agent or by telex or facsimile transmission from the Agent. This
Guarantee shall be binding upon the successors and permitted assigns of each
Guarantor and shall inure to the benefit of the Agent and the Lenders and their
respective successors and assigns. THIS GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF
VIRGINIA, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 15. Notices. All notices, requests and demands to or upon the
Guarantors or the Agent or any Lender to be effective shall be in writing or by
telecopy and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made (i) in the case of telephonic notice (to the extent
expressly permitted hereunder), when made, (ii) in the case of notice delivered
by overnight express courier, one Business Day after the Business Day such
notice was delivered to such courier, (iii) in the case of notice delivered by
first class mail, three Business Days after being deposited in the mail, postage
prepaid, return receipt requested, (iv) in the case of notice by hand, when
delivered, or (v) in the case of notice by any customary means of
telecommunication, when sent provided confirmation of receipt or answer back has
been received, in each case if addressed, in the case of the Agent and the
Lenders, to such party at the address provided for such party in section 9.6 of
the Revolving Credit Agreement or, in the case of the Guarantors, addressed to
such party as specified in Schedule I hereto.
SECTION 16. Counterparts. This Guarantee may be executed by one or more of
the parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
SECTION 17. Acknowledgement. Each Guarantor hereby confirms its agreement
with sections 9.15 and 9.13 of the Revolving Credit Agreement.
SECTION 18. Submission To Jurisdiction; Waivers. Any judicial
proceeding brought against any Guarantor with respect to this Guarantee or the
transactions contemplated hereby may be brought in any court of competent
jurisdiction in the Commonwealth of Virginia, and, by execution and delivery of
this Guarantee, each Guarantor (a) accepts, generally and unconditionally, the
nonexclusive jurisdiction of such courts and any related appellate court and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with this Guarantee or the transactions contemplated hereby and (b) irrevocably
waives any objection it may now or hereafter have as to the venue of any such
proceeding brought in such a court or that such a court is an inconvenient
forum. Each Guarantor hereby waives personal service of process and consents
that service of process upon it may be made by certified or registered mail,
return receipt requested, at its address specified or determined in accordance
with the provisions of Section 15 hereof, and service so made shall be deemed
completed on the earlier of (x) the receipt thereof and (y) if sent by
registered or certified mail (return receipt requested), the fifth (5th)
Business Day after such service is deposited in the mail. Nothing herein shall
affect the right of any Lender or the Agent to serve process in any other manner
permitted by law or shall limit the right of any Lender or the Agent to bring
proceedings against any Guarantor in the courts of any other jurisdiction. Any
judicial proceeding by any Guarantor against any Lender or the Agent involving
this Guarantee or the transactions contemplated hereby shall be brought only in
a court located in the Commonwealth of Virginia. THE GUARANTORS AND THE LENDERS
AND THE AGENT HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO WHICH
THEY ARE PARTIES INVOLVING THIS GUARANTEE OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 19. Authority of Agent. Each 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 Lenders, be governed by the Revolving 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 Lenders with full and valid authority so
to act or refrain from acting, and neither such Guarantor, the Company nor any
other Guarantor shall be under any obligation, or entitlement, to make any
inquiry respecting such authority.
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee
to be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇ Services, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
and Chief Financial Officer
▇▇▇▇▇▇ ▇▇▇▇▇▇ Consulting, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
and Chief Financial Officer
HB Capital, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
and Chief Financial Officer
Putnam, Hayes & ▇▇▇▇▇▇▇▇, Inc.
By: /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
And Treasurer
TB&A Group, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
and Chief Financial Officer
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary and Treasurer
Private Label Energy Services, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
and Chief Financial Officer
Fieldston Publications, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
SCHEDULE I TO
SUBSIDIARY GUARANTEE
Addresses of Guarantors
Notices may be provided to each Guarantor by Addressing the Guarantor
by its name, care of:
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇