EXHIBIT 10.3
SECOND AMENDED AND RESTATED GUARANTY
THIS SECOND AMENDED AND RESTATED GUARANTY dated as of April 6, 1998
executed and delivered by SECURITY CAPITAL GROUP INCORPORATED, a Maryland
corporation, formerly known as Security Capital Realty Incorporated (the
"Guarantor"), in favor of (a) ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, successor
to ▇▇▇▇▇ Fargo Realty Advisors Funding, Incorporated, in its capacity as Agent
(the "Agent") for the Lenders under that certain Second Amended and Restated
Credit Agreement dated as of the date hereof by and among SC Realty Incorporated
(the "Borrower"), the financial institutions party thereto and their assignees
under Section 10.8 thereof (the "Lenders") and the Agent (as the same may be
amended, restated, supplemented or otherwise modified from time to time in
accordance with its terms, the "Credit Agreement") and (b) the Lenders and the
Swingline Lender.
WHEREAS, certain of the Lenders made available to the Borrower certain
financial accommodations on the terms and conditions contained in that certain
Amended and Restated Credit Agreement dated as of August 19, 1996, as amended
prior to the date hereof (the "Existing Credit Agreement") by and among the
Borrower, the Lenders and the Agent;
WHEREAS, the Guarantor guaranteed the Borrower's obligations under the
Existing Credit Agreement pursuant to the terms of that certain Amended and
Restated Guaranty dated as of August 19, 1996 (as amended and in effect
immediately prior to the date hereof, the "Existing Guaranty");
WHEREAS, the Borrower, the Agent and the Lenders are to amend and
restate the terms of the Existing Credit Agreement pursuant to the Credit
Agreement;
WHEREAS, the Guarantor owns all of the issued and outstanding capital
stock of the Borrower;
WHEREAS, the Guarantor will continue to benefit, as the sole
shareholder of the Borrower, from the making of such financial accommodations to
the Borrower under the Credit Agreement; and
WHEREAS, it is a condition precedent to the extension of such
financial accommodations under the Credit Agreement, that the Guarantor execute
and deliver this Guaranty.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Guarantor, the Guarantor
agrees as follows:
Section 1. Guaranty. The Guarantor hereby absolutely and
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unconditionally guaranties the due and punctual payment and performance of all
of the following (collectively referred to as
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the "Obligations"): (a) all indebtedness and obligations owing by the Borrower
to the Lenders and the Agent under or in connection with the Credit Agreement
and any other Loan Document, including without limitation, the repayment of all
principal of the Revolving Loans and the Term Loans made by the Lenders to the
Borrower under the Credit Agreement and the payment of all interest, fees,
charges, reasonable attorneys fees and other amounts payable to any Lender or
the Agent thereunder or in connection therewith; (b) any and all extensions,
renewals, modifications, amendments or substitutions of the foregoing; and (c)
all expenses, including, without limitation, reasonable attorneys' fees and
disbursements, that are incurred by the Lenders and the Agent in the enforcement
of any of the foregoing or any obligation of the Guarantor hereunder.
Section 2. Guaranty of Payment and Not of Collection. This Guaranty
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is a guaranty of payment, and not of collection, and a debt of the Guarantor for
its own account. Accordingly, the Lenders and the Agent shall not be obligated
or required before enforcing this Guaranty against the Guarantor: (a) to pursue
any right or remedy the Lenders or the Agent may have against the Borrower or
any other guarantor of the Obligations or commence any suit or other proceeding
against the Borrower or any other guarantor of the Obligations in any court or
other tribunal; (b) to make any claim in a liquidation or bankruptcy of the
Borrower or any other guarantor of the Obligations; or (c) to make demand of the
Borrower or any other guarantor of the Obligations or to enforce or seek to
enforce or realize upon any collateral security held by the Lenders or the Agent
which may secure any of the Obligations. In this connection, the Guarantor
hereby waives the right of the Guarantor to require any holder of the
Obligations to take action against the Borrower as provided in Official Code of
Georgia Annotated (S)10-7-24.
Section 3. Guaranty Absolute. The Guarantor guarantees that the
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Obligations will be paid strictly in accordance with the terms of the documents
evidencing the same, regardless of any Applicable Law now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of the Agent or
the Lenders with respect thereto. The liability of the Guarantor under this
Guaranty shall be absolute and unconditional in accordance with its terms and
shall remain in full force and effect without regard to, and shall not be
released, suspended, discharged, terminated or otherwise affected by, any
circumstance or occurrence whatsoever, including without limitation, the
following (whether or not the Guarantor consents thereto or has notice thereof):
(a) (i) any change in the amount, interest rate or due date or other
term of any of the Obligations, (ii) any change in the time, place or manner of
payment of all or any portion of the Obligations, (iii) any amendment or waiver
of, or consent to the departure from or other indulgence with respect to, the
Credit Agreement, any other Loan Document, or any other document or instrument
evidencing or relating to any Obligations, or (iv) any waiver, renewal,
extension, addition, or supplement to, or deletion from, or any other action or
inaction under or in respect of, the Credit Agreement, any of the other Loan
Documents, or any other documents, instruments or agreements relating to the
Obligations or any other instrument or agreement referred to therein or
evidencing any Obligations or any assignment or transfer of any of the
foregoing;
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(b) any lack of validity or enforceability of the Credit Agreement,
any of the other Loan Documents, or any other document, instrument or agreement
referred to therein or evidencing any Obligations or any assignment or transfer
of any of the foregoing;
(c) any furnishing to the Agent or the Lenders of any additional
security for the Obligations, or any sale, exchange, release or surrender of, or
realization on, any collateral security for the Obligations;
(d) any settlement or compromise of any of the Obligations, any
security therefor, or any liability of any other party with respect to the
Obligations, or any subordination of the payment of the Obligations to the
payment of any other liability of the Borrower;
(e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to the
Guarantor, the Borrower or any other Person, or any action taken with respect to
this Guaranty by any trustee or receiver, or by any court, in any such
proceeding;
(f) any nonperfection of any security interest or other Lien on any of
the Collateral;
(g) any application of sums paid by the Borrower or any other Person
with respect to the liabilities of the Borrower to the Agent or the Lenders,
regardless of what liabilities of the Borrower remain unpaid;
(h) any defect, limitation or insufficiency in the borrowing powers of
the Borrower or in the exercise thereof; or
(i) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Guarantor hereunder.
Section 4. Action with Respect to Obligations. The Lenders and the
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Agent may, at any time and from time to time, without the consent of, or notice
to, the Guarantor, and without discharging the Guarantor from its obligations
hereunder: (a) amend, modify, alter or supplement the terms of any of the
Obligations, including, but not limited to, extending or shortening the time of
payment of any of the Obligations or the interest rate that may accrue on any of
the Obligations; (b) amend, modify, alter or supplement the Credit Agreement or
any other Loan Document; (c) sell, exchange, release or otherwise deal with all,
or any part, of any Collateral; (d) release any Person liable in any manner for
the payment or collection of the Obligations; (e) exercise, or refrain from
exercising, any rights against the Borrower or any other Person (including,
without limitation, any other guarantor of the Obligations); and (f) apply any
sum, by whomsoever paid or however realized, to the Obligations in such order as
the Lenders shall elect.
Section 5. Representations and Warranties. The Guarantor represents
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and warrants to the Agent and each Lender as follows:
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(a) Existence and Power. The Guarantor is a corporation, duly
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organized, validly existing and in good standing under the laws of the State of
Maryland, and has all requisite power and authority and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted and is duly qualified and is in good standing as a
foreign corporation, and authorized to do business, in each jurisdiction in
which the character of its properties or the nature of its business requires
such qualification or authorization except where the failure to be so qualified
or authorized would not have a Materially Adverse Effect on the Guarantor.
(b) Ownership Structure. The Guarantor owns all of the issued and
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outstanding Securities of the Borrower, all of which Securities have been
validly issued and are fully paid and nonassessable.
(c) Authorization of Guaranty and Other Loan Documents. The Guarantor
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has the right and power, and has taken all necessary action to authorize it, to
execute, deliver and perform this Guaranty and the other Loan Documents to which
it is a party in accordance with their respective terms and to consummate the
transactions contemplated hereby. This Guaranty and each of the other Loan
Documents to which the Guarantor is a party have been duly executed and
delivered by the duly authorized officers of the Guarantor and each is a legal,
valid and binding obligation of the Guarantor enforceable against the Guarantor
in accordance with its respective terms, except as the same may be limited by
bankruptcy, insolvency, and other similar laws affecting the rights of creditors
generally and the availability of equitable remedies for the enforcement of
certain obligations (other than the payment of principal) contained herein or
therein may be limited by equitable principles generally.
(d) Compliance of Guaranty and Other Loan Documents with Laws, etc.
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The execution, delivery and performance of this Guaranty and the other Loan
Documents to which the Guarantor is a party in accordance with their respective
terms do not and will not, by the passage of time, the giving of notice or
otherwise (i) require any Governmental Approval or violate any Applicable Law
relating to the Guarantor the failure to possess or to comply with which would
have a Materially Adverse Effect on the Guarantor; (ii) conflict with, result in
a breach of or constitute a default under (A) the certificate of incorporation
or the bylaws of the Guarantor, or (B) any indenture, agreement or other
instrument to which the Guarantor is a party or by which it or any of its
properties may be bound and the violation of which would have a Materially
Adverse Effect on the Guarantor; or (iii) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by the Guarantor other than Permitted Liens.
(e) Compliance with Law; Governmental Approvals. The Guarantor is in
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compliance with each Governmental Approval applicable to it and in compliance
with all other Applicable Law relating to the Guarantor, except for
noncompliances which, and Governmental Approvals the failure to possess which,
would not, singly or in the aggregate, cause a Default or Event of Default or
have a Materially Adverse Effect on the Guarantor and in respect of which (if
the Guarantor has actual knowledge of such Applicable Law or Governmental
Approval) adequate reserves have been established on the books of the Guarantor.
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(f) Indebtedness and Guarantees. Schedule 5.(f) is a complete and
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correct listing of all Indebtedness and Guarantees of the Guarantor as of the
date hereof. The Guarantor has performed and is in compliance with all of the
terms of all Indebtedness of the Guarantor (including all Guarantees of any
Indebtedness) having an aggregate principal amount in excess of $5,000,000, and
all instruments and agreements relating thereto, and no default or event of
default, or event or condition which with the giving of notice, the lapse of
time or otherwise, would constitute such a default or event of default, exists
with respect to any such Indebtedness.
(g) Transactions with Affiliates. The Guarantor is not a party to any
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transaction with any Affiliate which is in violation of Section 6.(j)(ii).
(h) Absence of Defaults. The Guarantor is not in default under its
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articles of incorporation or its bylaws, and no event has occurred, which has
not been remedied, cured or waived (i) which constitutes a Default or an Event
of Default; or (ii) which constitutes, or which with the passage of time, the
giving of notice or otherwise, would constitute, a default or event of default
by the Guarantor under any material agreement (other than this Guaranty) or
judgment, decree or order to which the Guarantor is a party or by which the
Guarantor or any of its properties may be bound.
(i) Financial Information. The consolidated balance sheet of the
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Guarantor as of December 31, 1997 and the related consolidated statements of
operations, stockholders' equity and cash flows for the fiscal year then ended,
reported on by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, copies of all of which have been delivered
to the Agent and the Lenders, fairly present, in conformity with generally
accepted accounting principles, the financial position of the Guarantor as of
such dates and its results of operations and cash flows for such fiscal year and
period. Since December 31, 1997 and with reference to such date, there has been
no material adverse change in the business, properties, financial position or
results of operations of the Guarantor and its Consolidated Subsidiaries taken
as a whole.
(j) Litigation. There is no action, suit or proceeding pending
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against, or to the knowledge of the Guarantor threatened against or affecting,
any Related Company before any court or arbitrator or any Governmental Authority
(i) which would reasonably be expected to materially adversely affect the
business, properties, financial position, results of operations or prospects of
the Guarantor or (ii) which in any manner draws into question the validity of
any Loan Document.
(k) ERISA. The Guarantor does not maintain, and has not at any time
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maintained, any Plan subject to the provisions of ERISA and is not, and has not
at any time been, a member of any ERISA Group with any Person that has at any
time maintained any such Plan.
(l) Environmental Matters. In the ordinary course of their business,
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the Related Companies conduct an ongoing review of the effect of Environmental
Laws on their business, operations and properties, in the course of which they
identify and evaluate associated liabilities and costs (including, without
limitation, any capital or operating expenditures required for clean-
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up or closure of properties presently or previously owned, any capital or
operating expenditures required to achieve or maintain compliance with
environmental protection standards imposed by law or as a condition of any
license, permit or contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or reduction in the
level of or change in the nature of operations conducted thereat, any costs or
liabilities in connection with off-site disposal of wastes or Hazardous
Substances, and any actual or potential liabilities to third parties, including
employees, and any related costs and expenses). On the basis of this review, the
Guarantor has reasonably concluded that such associated liabilities and costs,
including the costs of compliance with Environmental Laws, are unlikely to have
a material adverse effect on the business, financial condition, results of
operations or prospects of the Guarantor and its Consolidated Subsidiaries,
considered as a whole.
(m) Taxes. As of the date hereof, no United States Federal income tax
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returns of the "affiliated group" (as defined in the Internal Revenue Code) of
which the Guarantor is a member have been examined and closed. The members of
such affiliated group have filed all United States Federal income tax returns
and all other material tax returns which are required to be filed by them and
have paid all taxes due pursuant to such returns or pursuant to any assessment
received by or any of them except for taxes being contested in good faith by
appropriate proceedings and for which appropriate reserves have been
established. The charges, accruals and reserves on the books of the Guarantor
in respect of taxes or other governmental charges are, in the opinion of the
Guarantor, adequate.
(n) Other Related Companies. Each of the corporate Related Companies
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other than the Guarantor is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation, and
has all corporate powers and all material Governmental Approvals required to
carry on its business as now conducted.
(o) Not an Investment Company. The Guarantor is not an "investment
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company" within the meaning of the Investment Company Act of 1940, as amended.
(p) Full Disclosure. All written information furnished by or on
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behalf of the Guarantor to the Agent and the Lenders for purposes of or in
connection with the Existing Credit Agreement and the other Loan Documents (as
defined in the Existing Credit Agreement) or any transaction contemplated
thereby was, this Guaranty and the other Loan Documents or any transaction
contemplated hereby is, and all such information (other than projections and
similar forward-looking information) hereafter furnished by or on behalf of the
Guarantor to the Agent and the Lenders will be, true and accurate in all
material respects on the date as of which such information is or was stated or
certified and did not, does not, and will not, fail to state any material facts
necessary to make the statements contained therein not misleading. All
financial projections prepared by or on behalf of Guarantor that have been or
may hereafter be made available to Agent or any Lender were or will be prepared
in good faith based on assumptions believed by management of Guarantor to be
reasonable. The Guarantor has disclosed to the Agent and the Lenders in writing
any and all facts known to the Guarantor which materially and adversely affect
or may affect (to the extent the Guarantor can now reasonably foresee), the
business, operations or financial condition of the Guarantor and its
Consolidated Subsidiaries,
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taken as a whole, or the ability of the Guarantor to perform its obligations
under this Guaranty or any of the other Loan Documents to which it is a party.
(q) Not Plan Assets. The assets of the Guarantor do not and will not
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constitute "plan assets" within the meaning of ERISA, the Internal Revenue Code
and the respective regulations promulgated thereunder, of any ERISA Plan or Non-
ERISA Plan. The execution, delivery and performance of this Guaranty and the
other Loan Documents to which the Guarantor is a party do not and will not
constitute "prohibited transactions" under ERISA or the Internal Revenue Code.
(r) Liens. The liens and security interests granted to the Agent by
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the Guarantor pursuant to the Collateral Documents to which the Guarantor is a
party are valid and enforceable first-priority Liens subject only to Permitted
Liens.
(s) Separateness from Borrower.
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(i) Consolidation of the business operations of the Borrower
and the Guarantor, when taken together with the elimination of the
financial benefits of the transactions contemplated by the Loan
Documents, would not result in any significant cost savings or in
significantly greater efficiency of such combined business operations.
(ii) The consideration received by the Guarantor in exchange for
acquisition of the capital stock of Borrower provided fair
consideration and reasonably equivalent value to the Guarantor.
(iii) The Guarantor has not concealed and will not conceal from
any interested party any transfers contemplated in connection with the
Contribution. The Guarantor is not entering into the transaction
contemplated by the Credit Agreement and the Assignment and Assumption
Agreement with the intent of hindering, delaying or defrauding
creditors.
(iv) The Guarantor's management has made a diligent analysis of
the business and operations of the Borrower, and is reasonably
confident that the Borrower is and will be: (A) be adequately
capitalized to conduct its business and affairs as a going concern,
considering the size and nature of its business and intended purposes;
(B) solvent; and (C) able to pay its debts as they come due. As a
result of the foregoing, the Guarantor's management believes that the
Borrower will be able to survive as a stand alone entity, independent
of financial assistance of any Person. The Guarantor's management does
not anticipate any need for the Guarantor to loan money or contribute
capital to the Borrower, although it is possible that the Guarantor
may take either of these actions in the future.
(v) The Guarantor's management has made a diligent analysis of
its own business and operations and is reasonably confident that the
Guarantor is and will be: (i) adequately capitalized to conduct its
business and affairs as a going concern, considering the size and
nature of its business and intended purposes; (ii) solvent; and (iii)
able to pay
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its debts as they come due. Guarantor's management believes the
Guarantor will be able, vis-a-vis the Borrower, to survive as a stand
alone entity.
(t) Solvency. (i) The fair value and the fair salable value of the
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Guarantor's assets (excluding any Indebtedness due from any Affiliate of the
Guarantor) are each in excess of the fair valuation of the Guarantor's total
liabilities (including all contingent liabilities); and (ii) the Guarantor is
able to pay its debts or other obligations in the ordinary course as they mature
and (iii) the Guarantor has capital not unreasonably small to carry on its
business and all business in which it proposes to be engaged.
(u) Year 2000 Review. Guarantor has reviewed its business and
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operations and has developed a plan to address on a timely basis the risk that
computer applications used by it in performing date sensitive functions and
involving dates prior to December 31, 1999 and thereafter might fail to perform
such functions properly which failure could reasonably be expected to have a
Materially Adverse Effect.
Section 6. Covenants. The Guarantor agrees that, so long as the
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Lenders have any Commitments under the Credit Agreement or any Obligation
remains unpaid or unperformed:
(a) Information. The Guarantor will deliver to the Agent and each
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Lender:
(i) as soon as available and in any event within 95 days after
the end of each respective fiscal year of the Guarantor and any of its
Subsidiaries the financial statements of which are audited, a
consolidated balance sheet of such Person as of the end of such fiscal
year and the related consolidated statements of funds from operations
or earnings, stockholders' equity and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all (other than any statement of funds from
operations) reported on in a manner acceptable to the Agent by
independent public accountants of nationally recognized standing;
(ii) as soon as available and in any event within 50 days after
the end of each of the first three fiscal quarters of each respective
fiscal year of the Guarantor and any of its Subsidiaries the financial
statements of which are audited, a balance sheet of such Person as of
the end of such quarter and the related statements of funds from
operations or earnings, stockholders' equity and cash flows for such
quarter and for the portion of such Person's fiscal year ended at the
end of such quarter, setting forth in comparative form the figures for
the corresponding quarter and the corresponding portion of such
Person's previous fiscal year, all certified (subject to normal year-
end adjustments) as to fairness of presentation, generally accepted
accounting principles (subject to absence of full footnote disclosures
and other than any statement of funds from operations) and consistency
by an Authorized Representative of such Person;
(iii) simultaneously with the delivery of each set of financial
statements referred to in the immediately preceding clauses (i) and (ii), a
certificate of an Authorized Representative of the Guarantor (A) setting
forth in reasonable detail the calculations
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required to establish whether the Guarantor was in compliance with the
requirements of Sections 6.(j) and (l) through (n) hereof on the date of
such financial statements, (B) stating whether any Default or Event of
Default exists on the date of such certificate and, if any Default or Event
of Default then exists, setting forth the details thereof and the action
which the Guarantor is taking or proposes to take with respect thereto, (C)
setting forth a schedule of all Contingent Obligations of the Guarantor as
of the date of such financial statements, and (D) setting forth a schedule,
in such form as may be reasonably satisfactory to the Agent, of information
with respect to assets and liabilities of Consolidated Subsidiaries of the
Guarantor;
(iv) within five days after any executive officer of the Guarantor
obtains knowledge of any Default or Event of Default, a certificate of an
Authorized Representative of the Guarantor setting forth the details
thereof and the action which the Guarantor is taking or proposes to take
with respect thereto;
(v) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K (or
their equivalents) and all other periodic reports which the Guarantor or
any of its Affiliates which it directly or indirectly controls shall file
with the Securities and Exchange Commission (or any governmental agency
substituted therefor) or any national securities exchange;
(vi) promptly upon the release thereof, copies of all press releases
of the Guarantor;
(vii) promptly upon obtaining knowledge thereof, a description in
reasonable detail of any action, suit or proceeding commenced or threatened
against any of the Related Companies which is reasonably likely to have a
Materially Adverse Effect;
(viii) promptly upon the occurrence thereof, any material change in
the senior management of the Guarantor;
(ix) promptly upon the occurrence thereof, any amendment to the
articles of incorporation or bylaws of the Guarantor;
(x) promptly upon the filing thereof, the annual report of the
Guarantor filed with the Secretary of State of the State of Maryland; and
(xi) from time to time such additional information regarding the
financial position or business of the Guarantor and its Subsidiaries as the
Agent or any Lender may reasonably request.
(b) Payment of Obligations. The Guarantor will pay and discharge, and
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will cause each Subsidiary (other than any Public Subsidiary) to pay and
discharge, at or before maturity, all their respective material obligations and
liabilities, including, without limitation, tax
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liabilities, except where the same may be contested in good faith by appropriate
proceedings unless the contest thereof would have a Materially Adverse Effect on
the Guarantor, and will maintain, and will cause each Subsidiary (other than any
Public Subsidiary) to maintain, in accordance with generally accepted accounting
principles, appropriate reserves for the accrual of any of the same.
(c) Maintenance of Property; Insurance.
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(i) the Guarantor will keep, and will cause each Subsidiary
(other than any Public Subsidiary) to keep, all property useful and
necessary in its business in good working order and condition,
ordinary wear and tear and insured casualty losses excepted.
(ii) the Guarantor will maintain, and will cause each Subsidiary
(other than any Public Subsidiary) to maintain, (A) physical damage
insurance on all real and personal property on an all risks basis
(including the perils of flood and earthquake if located in designated
flood and earthquake zones), covering the repair and replacement cost
of all such property and consequential loss coverage for business
interruption and extra expense (provided that the amount of such
insurance with respect to earthquakes need not exceed $15,000,000 for
property located in California), (B) public liability insurance
(including products/completed operations liability coverage) in an
amount not less than $5,000,000 in primary coverage and $25,000,000 in
umbrella coverage and (C) such other insurance coverage in such
amounts and with respect to such risks as is consistent with insurance
maintained by businesses of comparable type and size in the industry.
All such insurance shall be provided by insurers having an A.M. Best
policyholders rating of not less than A-IX (with respect to liability)
and A-XI (with respect to property damage) or such other insurers as
the Agent may approve in writing. The Guarantor will deliver to the
Agent (x) upon request of the Agent from time to time full information
as to the insurance carried, (y) within five (5) days of receipt of
notice from any insurer a copy of any notice of cancellation or
material change in coverage from that existing on the date of this
Guaranty and (z) forthwith, notice of any cancellation or nonrenewal
of coverage by the Guarantor.
(iii) except as otherwise permitted under Section 6.(g) hereof,
the Guarantor will, and will cause each Subsidiary to, qualify and
remain qualified and authorized to do business in each jurisdiction in
which the character of its properties or the nature of its business
requires such qualification or authorization and where the failure to
be so qualified or authorized would have a Materially Adverse Effect
on the Guarantor.
(d) Conduct of Business and Maintenance of Existence. Except as
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otherwise permitted under Section 6.(g) hereof, the Guarantor will continue, and
will cause each Subsidiary to continue, to engage in business of the same
general type as now conducted by the Guarantor and its Subsidiaries, and will
preserve, renew and keep in full force and effect, and will cause each
Subsidiary to preserve, renew and keep in full force and effect their respective
existence and their respective rights, privileges and franchises necessary or
desirable in the normal conduct of business; provided that nothing in this
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Section shall prohibit the dissolution of a Subsidiary
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(other than the Borrower) if (i) such dissolution will not be materially
disadvantageous to the Lenders and (ii) such dissolution will not have a
Materially Adverse Effect.
(e) Compliance with Laws. The Guarantor will comply, and cause each
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Subsidiary to comply, with all Applicable Laws, including without limitation,
all Environmental Laws and ERISA and the rules and regulations thereunder,
except where compliance therewith is contested in good faith by appropriate
proceedings or the failure to so comply would not have a Materially Adverse
Effect.
(f) Inspection of Property, Books and Records. The Guarantor will
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keep, and will cause each Subsidiary to keep, proper books of record and account
in which full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities; and will permit, and
will cause each Subsidiary to permit, representatives of the Agent to visit and
inspect any of their respective properties, to examine and make abstracts from
any of their respective books and records and to discuss their respective
affairs, finances and accounts with their respective officers, employees and
independent public accountants in the Guarantor's presence prior to an Event of
Default, all at such reasonable times during business hours and as often as may
reasonably be desired and with reasonable notice so long as no Event of Default
shall have occurred and be continuing.
(g) Consolidations, Mergers and Sales of Assets. Neither the
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Guarantor nor any of its Subsidiaries (other than any Public Subsidiary) may (i)
consolidate or merge with or into any other Person or (ii) sell, lease or
otherwise transfer, directly or indirectly, and whether by one or a series of
related transactions, a substantial portion of any of its assets to any other
Person except that the Guarantor or any of its Subsidiaries (other than the
Borrower) may merge or consolidate with another Person and the Guarantor or any
of its Subsidiaries (other than the Borrower) may sell, lease or otherwise
transfer a substantial portion of its assets to another Person so long as (A)
the Guarantor shall have given the Agent at least thirty days prior notice
thereof, (B) after giving effect thereto, no Default or Event of Default shall
have occurred and be continuing and Guarantor shall have delivered to Agent a
certificate of an Authorized Representative of Guarantor setting forth in
reasonable detail the calculations required to establish whether Guarantor will
be in compliance with the requirements of Sections 6.(l) through (n) after
giving pro forma effect thereto and (C) in the case of a consolidation or merger
(x) involving the Guarantor, the Guarantor is the survivor thereof and (y)
involving a Subsidiary and not the Guarantor, the Person surviving such
consolidation or merger will be a Subsidiary after giving effect thereto.
(h) ERISA. The Guarantor will not at any time maintain any Plan
-----
subject to the provisions of ERISA and will not at any time be a member of any
ERISA Group with any Person that has at any time maintained any such Plan.
(i) Negative Pledge. The Guarantor will not create, assume or suffer
---------------
to exist any Lien on any of the Collateral or any of its right, title or
interest in or to any capital stock of any of the Services Subsidiaries.
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(j) Restricted Payments; and Agreements with Affiliates.
---------------------------------------------------
(i) The Guarantor shall not directly or indirectly declare or
make, or incur any liability to make, any Restricted Payments;
provided, however, so long as no Event of Default shall have occurred
-------- -------
and be continuing (and would not result from the occurrence of the
following), the Guarantor may (i) pay cash dividends during any
periods of four consecutive fiscal quarters ending during the term of
the Credit Agreement in an aggregate amount not to exceed 50% of the
Guarantor's Cash Flow Available for Distribution for such four fiscal
quarter period and (ii) notwithstanding the preceding clause (i), pay
cash dividends to the holders of the 139,000 shares of the Guarantor's
Series A Cumulative Convertible Redeemable Voting Preferred Stock
currently issued and outstanding (the "Series A Shares"), and any
other securities into which the Series A Shares may be exchanged or
converted but only to the extent required to do so under the terms of
the Series A Shares as in effect on the date hereof; provided,
further, however, if any Event of Default other than any Event of
Default described in Section 8.1.(a) or (f) through (i) of the Credit
Agreement shall have occurred and be continuing, the Guarantor may pay
cash dividends to the holders of Series A Shares but only to the
extent required to do so under the terms of the Series A Shares as in
effect on the date hereof.
(ii) The Guarantor shall not, and shall not permit any of its
Subsidiaries that are not Public Subsidiaries to, enter into any
transaction (including without limitation, any loan evidenced by the
Guarantor Note) requiring such Person to pay any amounts to or
otherwise transfer property to, or pay any management or other fees
to, the Borrower other than on terms and conditions substantially as
favorable to the Guarantor or such Subsidiary as would be obtainable
at the time in a comparable arm's-length transaction with a Person not
an Affiliate.
(k) ERISA Exemptions. The Guarantor shall not permit any of its
----------------
assets to become or be deemed to be "plan assets" within the meaning of ERISA,
the Internal Revenue Code and the respective regulations promulgated thereunder,
of any ERISA Plan or any Non-ERISA Plan
(l) Minimum Shareholders' Equity. The Guarantor shall not at any
----------------------------
time permit the Shareholders' Equity of the Guarantor and its Consolidated
Subsidiaries to be less than (i) $1,892,924,780 plus (ii) 75% of the amount by
----
which the Shareholders' Equity of the Guarantor and its Consolidated
Subsidiaries has been increased by the issuance after December 31, 1997 of
capital stock.
(m) Ratio of Total Liabilities to Market Value Net Worth. The
----------------------------------------------------
Guarantor shall not at any time permit the ratio of (i) the Total Liabilities of
the Guarantor and its Consolidated Subsidiaries determined in accordance with
generally accepted accounting principles to (ii) the Market Value Net Worth of
the Guarantor and its Consolidated Subsidiaries to exceed 1.0 to 1.0.
(n) Ratio of Cash Flow to Fixed Charges. The Guarantor shall not
-----------------------------------
permit the ratio of (i) the Cash Flow of the Guarantor and its Consolidated
Subsidiaries to (ii) the Fixed Charges of
D-12
the Guarantor and its Consolidated Subsidiaries to be less than 1.50 to 1.00 at
the end of any fiscal quarter.
(o) Guarantor Note. The Guarantor will not amend, supplement,
--------------
restate or otherwise modify any of the terms of the Guarantor Note without the
prior written consent of the Majority Lenders.
(p) Separateness Covenants.
----------------------
(i) The Guarantor will maintain the Borrower's separate
existence and identity and will take reasonable steps to make it
apparent to third parties that the Borrower is an entity with assets
(in particular the Pledged Shares (as defined in the Borrower Pledge
Agreement)) and liabilities distinct from those of the Guarantor.
(ii) Not in limitation of the generality of the foregoing, the
Guarantor agrees as follows:
(A) Any financial statements of the Guarantor that are
presented on a consolidated basis and include the Borrower will
contain detailed notes clearly stating that all of the Borrower's
assets are owned by the Borrower, and that the Borrower is a
separate legal entity with its own separate creditors which will
be entitled to be satisfied out of the Borrower's assets prior to
the Borrower's equity holders;
(B) The Guarantor will continue to provide for its own
operating expenses and liabilities from its own funds and funds
received upon the incurrence of Indebtedness to the extent
permitted under this Guaranty, from dividends and from capital
contributions;
(C) The Guarantor will not refer to the Borrower as a
"department" or "division" of the Guarantor and/or any Affiliate
of the Guarantor; and
(D) All of the Guarantor's books and records relating to the
Pledged Shares (as defined in the Borrower Pledge Agreement) will
be conspicuously and appropriately marked at the time of transfer
to reflect the contribution of such Pledged Shares to the
Borrower.
(iii) Not in limitation of the generality of the foregoing, the
Guarantor agrees that it has no authority, and shall not obtain any
authority, to control decisions and actions with respect to the daily
business affairs of the Borrower, except that the exercise by the
Guarantor of its rights retained under the Registration Rights
Agreements shall not constitute a violation of this Section.
D-13
(q) Exchange Listing. The Guarantor will maintain at least one class
----------------
of common shares of the Guarantor having trading privileges on the New York
Stock Exchange or the American Stock Exchange or which is listed on The NASDAQ
Stock Market's National Market.
Section 7. Waiver. The Guarantor, to the fullest extent permitted by
------
Applicable Law, hereby waives notice of acceptance hereof or any presentment,
demand, protest or notice of any kind, and any other act or thing, or omission
or delay to do any other act or thing, which in any manner or to any extent
might vary the risk of the Guarantor or which otherwise might operate to
discharge the Guarantor from its obligations hereunder.
Section 8. Inability to Accelerate Loan. If the Agent and/or the
----------------------------
Lenders are prevented from demanding or accelerating payment thereof by reason
of any automatic stay or otherwise, the Agent and/or the Lenders shall be
entitled to receive from the Guarantor, upon demand therefor, the sums which
otherwise would have been due had such demand or acceleration occurred.
Section 9. Reinstatement of Obligations. The Guarantor agrees that
----------------------------
this Guaranty shall continue to be effective or be reinstated, as the case may
be, with respect to any Obligations if at any time payment of any such
Obligations is rescinded or otherwise must be restored by the Agent and/or the
Lenders upon the bankruptcy or reorganization of the Borrower or the Guarantor
or otherwise.
Section 10. Subrogation. Until all of the Obligations shall have
-----------
been indefeasibly paid in full, the Guarantor shall have no right of subrogation
and hereby waives any right to enforce any remedy which the Agent and/or the
Lenders now have or may hereafter have against the Borrower, and the Guarantor
hereby waives any benefit of, and any right to participate in, any security or
collateral given to the Agent and the Lenders to secure payment or performance
of any of the Obligations.
Section 11. Payments Free and Clear. All sums payable by the
-----------------------
Guarantor hereunder, whether of principal, interest, fees, expenses, premiums or
otherwise, shall be paid in full, without set-off or counterclaim or any
deduction or withholding whatsoever (including any withholding tax or liability
imposed by any Governmental Authority, or any Applicable Law promulgated
thereby), and if the Guarantor is required by such Applicable Law or by such
Governmental Authority to make any such deduction or withholding, the Guarantor
shall pay to the Agent and the Lenders such additional amount as will result in
the receipt by the Agent and the Lenders of the full amount payable hereunder
had such deduction or withholding not occurred or been required.
Section 12. Set-off. In addition to any rights now or hereafter
-------
granted under Applicable Law and not by way of limitation of any such rights,
each Lender is hereby authorized by the Guarantor, at any time or from time to
time, without notice to the Guarantor or to any other Person, 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)
and any other indebtedness at any time
D-14
held or owing by such Lender or any Affiliate of such Lender, to or for the
credit or the account of the Guarantor against and on account of any of the
Obligations then due and owing after the expiration of any applicable grace
periods. The Guarantor agrees, to the fullest extent it may effectively do so
under Applicable Law, that any holder of a participation in a Note, whether or
not acquired pursuant to the applicable provisions of the Credit Agreement, may
exercise rights of setoff or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Guarantor in the amount of such participation.
Section 13. Subordination. The Guarantor hereby expressly covenants
-------------
and agrees for the benefit of the Agent and the Lenders that all obligations and
liabilities of the Borrower to the Guarantor of whatever description , including
without limitation, all intercompany receivables of the Guarantor from the
Borrower (collectively, the "Junior Claims") shall be subordinate and junior in
right of payment to all Obligations. If an Event of Default shall have occurred
and be continuing, then the Guarantor shall not accept any direct or indirect
payment (in cash, property, securities by setoff or otherwise) from the Borrower
on account of or in any manner in respect of any Junior Claim until all of the
Obligations have been indefeasibly paid in full.
Section 14. Avoidance Provisions. It is the intent of the Guarantor,
--------------------
the Agent and the Lenders that in any Proceeding, the Guarantor's maximum
obligation hereunder shall equal, but not exceed, the maximum amount which would
not otherwise cause the obligations of the Guarantor hereunder (or any other
obligations of the Guarantor to the Agent and the Lenders) to be avoidable or
unenforceable against the Guarantor in such Proceeding as a result of Applicable
Law, including without limitation, (a) Section 548 of the Bankruptcy Code of
1978, as amended (the "Bankruptcy Code") and (b) any state fraudulent transfer
or fraudulent conveyance act or statute applied in such Proceeding, whether by
virtue of Section 544 of the Bankruptcy Code or otherwise. The Applicable Laws
under which the possible avoidance or unenforceability of the obligations of the
Guarantor hereunder (or any other obligations of the Guarantor to the Agent and
the Lenders) shall be determined in any such Proceeding are referred to as the
"Avoidance Provisions". Accordingly, to the extent that the obligations of the
Guarantor hereunder would otherwise be subject to avoidance under the Avoidance
Provisions, the maximum Obligations for which the Guarantor shall be liable
hereunder shall be reduced to that amount which, as of the time any of the
Obligations are deemed to have been incurred under the Avoidance Provisions,
would not cause the obligations of the Guarantor hereunder (or any other
obligations of the Guarantor to the Agent and the Lenders), to be subject to
avoidance under the Avoidance Provisions. This Section is intended solely to
preserve the rights of the Agent and the Lenders hereunder to the maximum extent
that would not cause the obligations of the Guarantor hereunder to be subject to
avoidance under the Avoidance Provisions, and neither the Guarantor nor any
other Person shall have any right or claim under this Section as against the
Agent and the Lenders that would not otherwise be available to such Person under
the Avoidance Provisions.
Section 15. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
D-15
SECTION 16. WAIVER OF JURY TRIAL/JURISDICTION. (a) THE GUARANTOR,
---------------------------------
AND EACH OF THE AGENT AND THE LENDERS BY ACCEPTING THE BENEFITS HEREOF,
ACKNOWLEDGE THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG THE GUARANTOR, THE
AGENT OR ANY OF THE LENDERS WOULD BE BASED ON DIFFICULT AND COMPLEX ISSUES OF
LAW AND FACT AND THAT A TRIAL BY JURY COULD RESULT IN SIGNIFICANT DELAY AND
EXPENSE. ACCORDINGLY, THE GUARANTOR, AND EACH OF THE AGENT AND THE LENDERS BY
ACCEPTING THE BENEFITS HEREOF, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR
NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR
AGAINST THE GUARANTOR ARISING OUT OF THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR
IN CONNECTION WITH THE COLLATERAL OR ANY LIEN OR BY REASON OF ANY OTHER CAUSE OR
DISPUTE WHATSOEVER BETWEEN OR AMONG THE GUARANTOR, THE AGENT OR ANY OF THE
LENDERS OF ANY KIND OR NATURE.
(b) THE GUARANTOR, AND EACH OF THE AGENT AND THE LENDERS BY ACCEPTING
THE BENEFITS HEREOF, EACH HEREBY AGREES THAT THE FEDERAL DISTRICT COURT OF THE
NORTHERN DISTRICT OF GEORGIA OR, AT THE OPTION OF THE AGENT, ANY STATE COURT
LOCATED IN ▇▇▇▇▇▇ COUNTY, GEORGIA SHALL HAVE NON-EXCLUSIVE JURISDICTION TO HEAR
AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE GUARANTOR, THE AGENT
OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS GUARANTY OR ANY
OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM OR THE
COLLATERAL. THE GUARANTOR EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. THE CHOICE
OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING
OF ANY ACTION BY THE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT OR ANY
LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE
JURISDICTION. FURTHER, THE GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY
CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(c) THE FOREGOING WAIVERS HAVE BEEN MADE WITH THE ADVICE OF COUNSEL
AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL
SURVIVE THE PAYMENT OF THE OBLIGATIONS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER
OR UNDER THE OTHER LOAN DOCUMENTS AND THE TERMINATION OF THIS GUARANTY.
Section 17. Loan Accounts. The Agent may maintain books and accounts
-------------
setting forth the amounts of principal, interest and other sums paid and payable
with respect to the
D-16
Obligations, and in the case of any dispute relating to any of the outstanding
amount, payment or receipt of Obligation or otherwise, the entries in such
account shall be binding upon the Guarantor as to the outstanding amount of such
Obligations and the amounts paid and payable with respect thereto absent
manifest error. The failure of the Agent to maintain such books and accounts
shall not in any way relieve or discharge the Guarantor of any of its
obligations hereunder.
Section 18. Waiver of Remedies. No delay or failure on the part of
------------------
the Agent or the Lenders in the exercise of any right or remedy it may have
against the Guarantor hereunder or otherwise shall operate as a waiver thereof,
and no single or partial exercise by the Agent or the Lenders of any such right
or remedy shall preclude other or further exercise thereof or the exercise of
any other such right or remedy.
Section 19. Successors and Assigns. Each reference herein to the
----------------------
Agent or the Lenders shall be deemed to include such Person's respective
successors and assigns (including, but not limited to, any holder of the
Obligations) in whose favor the provisions of this Guaranty also shall inure,
and each reference herein to the Guarantor shall be deemed to include the
Guarantor's executors, administrators, successors and assigns, upon whom this
Guaranty also shall be binding. The Lenders may, in accordance with the
applicable provisions of the Credit Agreement, assign, transfer or sell any
Obligation, or grant or sell participation in any Obligations, to any Person or
entity without the consent of, or notice to, the Guarantor and without
releasing, discharging or modifying the Guarantor's obligations hereunder. The
Guarantor hereby consents to the delivery by the Agent or any Lender to any
assignee, transferee or participant of any financial or other information
regarding the Borrower or the Guarantor. The Guarantor may not assign or
transfer its obligations hereunder to any Person.
Section 20. Amendments. This Guaranty may not be amended except as
----------
provided in Section 10.7 of the Credit Agreement.
Section 21. Payments. All payments made by the Guarantor pursuant to
--------
this Guaranty shall be made in Dollars, in immediately available funds to the
Agent at its Lending Office, not later than 11:00 a.m., on the date one Business
Day after demand therefor.
Section 22. Notices. All notices, requests and other communications
-------
hereunder shall be in writing (including bank wire, facsimile transmission or
similar writing) and shall be given (i) to the Guarantor at its address set
forth below its signature hereto, (ii) to the Agent or any Lender at its address
for notices provided for in the Credit Agreement, or (iii) as to each such party
at such other address as such party shall designate in a written notice to the
other parties. Each such notice, request or other communication shall be
effective (x) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid or (y) if
given by any other means (including facsimile), when delivered at the applicable
address provided for in this Section; provided that any notice of a change of
--------
address for notices, shall not be effective until received. In addition to the
Agent's Lending Office, the Guarantor shall send copies of the information
described in Section 6.(a) to the following address of the Agent:
D-17
▇▇▇▇▇ Fargo Bank, National Association
Real Estate Group
▇▇▇▇ Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Section 23. Severability. In case any provision of this Guaranty
------------
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 24. Headings. Section headings used in this Guaranty are for
--------
convenience only and shall not affect the construction of this Guaranty.
Section 25. Definitions. (a) For the purposes of this Guaranty:
-----------
"Proceeding" means any of the following: (i) a voluntary or
----------
involuntary case concerning the Guarantor shall be commenced under the
Bankruptcy Code or any other applicable bankruptcy laws; (ii) a custodian (as
defined in the Bankruptcy Code or any other applicable bankruptcy laws) is
appointed for, or takes charge of, all or any substantial part of the property
of the Guarantor; (iii) any other proceeding under any Applicable Law, domestic
or foreign, relating to bankruptcy, insolvency, reorganization, winding-up or
composition for adjustment of debts, whether now or hereafter in effect, is
commenced relating to the Guarantor; (iv) the Guarantor is adjudicated insolvent
or bankrupt; (v) any order of relief or other order approving any such case or
proceeding is entered by a court of competent jurisdiction; (vi) the Guarantor
makes a general assignment for the benefit of creditors; (vii) the Guarantor
shall fail to pay, or shall state that it is unable to pay, or shall be unable
to pay, its debts generally as they become due; (viii) the Guarantor shall call
a meeting of its creditors with a view to arranging a composition or adjustment
of its debts; (ix) the Guarantor shall by any act or failure to act indicate its
consent to, approval of or acquiescence in any of the foregoing; or (x) any
corporate action shall be taken by the Guarantor for the purpose of effecting
any of the foregoing.
(b) Terms not otherwise defined herein are used herein with the
respective meanings given them in the Credit Agreement.
Section 26. Amendment and Restatement. THE PARTIES HERETO HAVE
-------------------------
ENTERED INTO THIS AGREEMENT SOLELY TO AMEND AND RESTATE THE TERMS OF THE
EXISTING GUARANTY. THE PARTIES DO NOT INTEND THIS AGREEMENT NOR THE
TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND THIS AGREEMENT AND THE TRANSACTION
CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE
OBLIGATIONS OWING BY THE GUARANTOR UNDER OR IN CONNECTION WITH ANY OF THE
EXISTING GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS (AS DEFINED IN THE CREDIT
AGREEMENT). FURTHER, THE PARTIES DO NOT INTEND THIS AGREEMENT NOR THE
TRANSACTIONS
D-18
CONTEMPLATED HEREBY TO AFFECT THE PERFECTION OR PRIORITY OF ANY LIEN OF AGENT IN
ANY OF THE COLLATERAL IN ANY WAY WHATSOEVER. THE AMENDMENT AND RESTATEMENT OF
THE EXISTING GUARANTY EFFECTED BY THIS AGREEMENT SHALL BE DEEMED TO HAVE
PROSPECTIVE APPLICATION ONLY UNLESS OTHERWISE SPECIFICALLY STATED HEREIN.
[Signature on Next Page]
D-19
IN WITNESS WHEREOF, the Guarantor has duly executed and delivered this
Second Amended and Restated Guaranty as of the date and year first written
above.
SECURITY CAPITAL GROUP INCORPORATED
By:____________________________
Name:_______________________
Title:______________________
Address for Notices:
Security Capital Group Incorporated
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
D-20
SCHEDULE 5.(f)
Indebtedness and Guaranties
---------------------------
(To be completed by Guarantor)
D-21
