SUBSIDIARY GUARANTY
FROM
CERTAIN SUBSIDIARIES OF ▇▇▇▇▇ ENTERPRISES CORPORATION
AS GUARANTORS,
IN FAVOR OF
FLEET BANK, N.A., AS ADMINISTRATIVE AGENT
AND
THE SECURED PARTIES REFERRED TO IN
THE CREDIT AGREEMENT REFERRED TO HEREIN
DATED OCTOBER 30, 1998
TABLE OF CONTENTS
SECTION PAGE
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Section 1. Guaranty; Limitation of Liability . . . . . . . . . . . . . . 1
Section 2. Guaranty Absolute . . . . . . . . . . . . . . . . . . . . . . 2
Section 3. Waivers and Acknowledgments . . . . . . . . . . . . . . . . . 3
Section 4. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 5. Payments Free and Clear of Taxes, Etc.. . . . . . . . . . . . 4
Section 6. Representations and Warranties. . . . . . . . . . . . . . . . 6
Section 7. Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 8. Amendments, Etc.. . . . . . . . . . . . . . . . . . . . . . . 7
Section 9. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 10. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . 8
Section 11. Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . 8
Section 12. Indemnification . . . . . . . . . . . . . . . . . . . . . . . 8
Section 13. Continuing Guaranty; Assignments Under the Credit Agreement . 8
Section 14. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. . . . 9
GUARANTY
GUARANTY (this "GUARANTY"), dated October 30, 1998, made by each of
the Persons listed on the signature pages hereof, and the Additional Guarantors
(as defined in Section 8(b)) (such Persons so listed and the Additional
Guarantors being, each, a "GUARANTOR", and collectively, the "GUARANTORS") in
favor of the Secured Parties (as defined in the Credit Agreement referred to
below) and Fleet Bank, N.A., as administrative agent (the "ADMINISTRATIVE
AGENT").
PRELIMINARY STATEMENT.
▇▇▇▇▇ Enterprises Corporation, a Delaware corporation (the
"BORROWER"), has entered into a Credit Agreement, dated as of October 30, 1998
(said Credit Agreement, as it may hereafter be amended, supplemented, restated
or otherwise modified from time to time, being the "CREDIT AGREEMENT";
capitalized terms used and not otherwise defined herein have the meanings
ascribed to them in the Credit Agreement), with the banks, financial
institutions and other institutions and other institutional lenders party
thereto and Fleet Bank, N.A., as Initial Issuing Bank and as Administrative
Agent. It is a condition precedent to the making of Advances by the Lender
Parties and the issuance of Letters of Credit by the Issuing Bank under the
Credit Agreement, and to the entry by the Hedge Banks into Bank Hedge Agreements
with the Borrower, from time to time, that the Guarantors shall have executed
and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lender Parties to make Advances and Issuing Bank to issue Letters of
Credit under the Credit Agreement, and the Hedge Banks to enter into Bank Hedge
Agreements with the Borrower, from time to time, each Guarantor hereby agrees as
follows:
Section 1. GUARANTY; LIMITATION OF LIABILITY.
(a) (i) Each Guarantor hereby jointly, severally,
unconditionally and irrevocably guarantees the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all Obligations
of the Borrower or any other Loan Party now or hereafter existing under the
Loan Documents, whether for principal, interest, fees, expenses or otherwise
(such Obligations being the "GUARANTEED OBLIGATIONS"), and agrees to pay any
and all expenses (including counsel fees and expenses) incurred by the
Administrative Agent or any other Secured Party in enforcing any rights under
this Guaranty. Without limiting the generality of the foregoing, each
Guarantor's liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by the Borrower or any other Loan
Party to the Administrative Agent or any other Secured Party under the Loan
Documents but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or
similar proceeding involving the Borrower.
(ii) Anything in this Guaranty to the contrary
notwithstanding, prior to the Term A Draw Date, the maximum amount of the
Guaranteed Obligations for which the Old ▇▇▇▇▇ Entities shall be liable
hereunder shall be Fifteen Million ($15,000,000) Dollars in the aggregate plus
interest thereon and further limited to Revolving Credit Advances (and the
interest thereon) the proceeds of which are used by the Old ▇▇▇▇▇ Entities,
notwithstanding the aggregate amount of the Guaranteed Obligations at any time
payable hereunder, and the Old ▇▇▇▇▇ Entities shall be liable hereunder up to
such maximum aggregate amount until all of the Revolving Credit Advances are
fully paid and performed in all respects. Without limiting the generality of
the foregoing, the Administrative Agent or any other Secured Party shall be
entitled, in their discretion, to determine: (i) the order in which it will seek
to collect the liabilities that are, pursuant to this subparagraph (ii),
partially guaranteed hereby; and (ii) the manner in it will seek to collect such
liabilities, including, without limitation, whether by seeking to realize on any
collateral security now or hereafter granted to it, by the enforcement of the
liabilities against the Borrower, by enforcement of any other guaranty by any
other Person or entity of the Guaranteed Obligations, or by a combination of
such methods.
(b) Each Guarantor, and by its acceptance of this
Guaranty, the Administrative Agent and each other Secured Party, hereby
confirms that it is the intention of all such parties that this Guaranty not
constitute a fraudulent transfer or conveyance for purposes of any Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act or any similar federal, state or foreign law which may be applicable to
this Guaranty. To effectuate the foregoing intention, the Administrative
Agent, the other Secured Parties and the Guarantors hereby irrevocably agree
that, anything contained herein to the contrary notwithstanding, the
Obligations of each Guarantor under this Guaranty shall be limited to the
maximum amount as will, after giving effect to such maximum amount and all
other contingent and fixed liabilities of such Guarantor that are relevant
under such laws, and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the Obligations of such other Guarantor under this
Guaranty, result in the Obligations of such Guarantor under this Guaranty not
constituting a fraudulent transfer or conveyance. For purposes hereof,
"BANKRUPTCY LAW" means Title 11, U.S. Code, or any similar federal or state
law for the relief of debtors.
Section 2. GUARANTY ABSOLUTE. Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Administrative Agent or any other Secured Party with respect thereto. The
Obligations of each Guarantor under this Guaranty are independent of the
Guaranteed Obligations or any other Obligations of any other Loan Party under
the Loan Documents, and a separate action or actions may be brought and
prosecuted
against any Guarantor to enforce this Guaranty, irrespective of whether any
action is brought against the Borrower or any other Loan Party or whether the
Borrower or any other Loan Party is joined in any such action or actions. The
liability of each Guarantor under this Guaranty shall be irrevocable, absolute
and unconditional, irrespective of, and each Guarantor hereby irrevocably waives
any defenses it may now or hereafter have in any way relating to, any or all of
the following:
(a) any lack of validity or enforceability of any Loan Document or
any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under the Loan Documents, or any amendment
or waiver of or any consent to departure from any Loan Document, including,
without limitation, any increase in the Guaranteed Obligations resulting from
the extension of additional credit to the Borrower or any of its Subsidiaries or
otherwise;
(c) any taking, exchange, release or non-perfection of any
Collateral, or any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of Collateral, or proceeds thereof,
to all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any Collateral for all or any of the Guaranteed Obligations or
any other Obligations of any other Loan Party under the Loan Documents or any
other assets of the Borrower or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of the Borrower or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to the Borrower or
any Guarantor any information relating to the financial condition, operations,
properties or prospects of any other Loan Party now or in the future known to
any Secured Party (each Guarantor waiving any duty on the part of the Secured
Parties to disclose such information); or
(g) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any representation by
the Administrative Agent or any other Secured Party that might otherwise
constitute a defense available to, or a discharge of, the Borrower, such
Guarantor or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be refused by any Secured Party or any other Person upon the
insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
Section 3. WAIVERS AND ACKNOWLEDGMENTS.
(a) Each Guarantor hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and any requirement that the Administrative Agent
or any other Secured Party protect, secure, perfect or insure any Lien or any
property subject thereto or exhaust any right or take any action against the
Borrower, any Guarantor or any other Person or any Collateral.
(b) Each Guarantor hereby waives any right to revoke this Guaranty,
and acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.
(c) Each Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Loan Documents and that the waivers set forth in this Section 3 are knowingly
made in contemplation of such benefits.
Section 4. SUBROGATION. Each Guarantor will not exercise any
rights that it may now or hereafter acquire against the Borrower or any other
guarantor that arise from the existence, payment, performance or enforcement of
such Guarantor's obligations under this Guaranty or any other Loan Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of the Administrative Agent or any other Secured Party against
the Borrower or any other guarantor or any Collateral, whether or not such
claim, remedy or right arises in equity or under contract, statute or common
law, including, without limitation, the right to take or receive from the
Borrower or any other guarantor, directly or indirectly, in cash or other
property or by setoff or in any other manner, payment or security on account of
such claim, remedy or right, unless and until all of the Guaranteed Obligations
and all other amounts payable under this Guaranty shall have been independently
paid in full in cash, all Letters of Credit have expired or have been terminated
or canceled, all Bank Hedge Agreements shall have expired or terminated and the
Commitments shall have expired or terminated. If any amount shall be paid to a
Guarantor in violation of the preceding sentence at any time prior to the later
of (i) the indefeasible payment in full in cash of the Guaranteed Obligations
and all other amounts payable under this Guaranty and (ii) the later of (x) the
Termination Date, (y) the expiration, termination or cancellation or all Letters
of Credit, and (z) the expiration or termination of all Bank Hedge Agreements in
accordance with their respective terms, such amount shall be held in trust for
the benefit of the Administrative Agent and the other Secured Parties and shall
forthwith be paid to the Administrative Agent to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as Collateral for any Guaranteed Obligations or other
amounts payable under this Guaranty thereafter arising. If (i) a Guarantor
shall make payment to the Administrative Agent or any other Secured Party of all
or any part of the Guaranteed Obligations, (ii) all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall be
indefeasibly paid in full in cash and (iii) the Termination Date shall have
occurred, all Letters of Credit have expired or have been terminated or canceled
and all Bank
Hedge Agreements shall have expired or terminated, the Administrative Agent and
the other Secured Parties will promptly, at such Guarantor's request and
expense, execute and deliver to such Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to such Guarantor of an interest in the Guaranteed
Obligations resulting from such payment by such Guarantor.
Section 5. PAYMENTS FREE AND CLEAR OF TAXES, ETC.
(a) Any and all payments made by each Guarantor hereunder shall be
made, in accordance with Section 2.12 of the Credit Agreement, free and clear of
and without deduction for any and all present or future Taxes. If any Guarantor
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder to the Administrative Agent or any other Secured Party, (i)
the sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent or such other Secured Party (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) such Guarantor shall make such deductions and
(iii) such Guarantor shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, each Guarantor agrees to pay any present or future
Other Taxes.
(c) Each Guarantor will indemnify the Administrative Agent and each
other Secured Party for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section) imposed on or paid by the Administrative
Agent or such other Secured Party (as the case may be) and any liability
(including, without limitation, penalties, additions to tax, interest and
expenses) arising therefrom or with respect thereto, except with respect to the
Administrative Agent or any Secured Party, as the case may be, for such a
liability arising from the Administrative Agent's or such Secured Party's, as
the case may be, willful misconduct or gross negligence. This indemnification
shall be made within thirty (30) days from the date on which the Administrative
Agent or such other Secured Party, as the case may be, makes written demand
specifying in reasonable detail the basis therefor.
(d) Within thirty (30) days after the date of any payment of Taxes
by or on behalf of a Guarantor, such Guarantor will furnish to the
Administrative Agent, at its address referred to in Section 11.2 of the Credit
Agreement, the original receipt of payment thereof or a certified copy of such
receipt. In the case of any payment hereunder by or on behalf of a Guarantor
through an account or branch outside the United States or by or on behalf of
such Guarantor by a payor that is not a United States person, if such Guarantor
determines that no Taxes are payable in respect thereof, such Guarantor shall
furnish, or shall cause such payor to furnish, to the Administrative Agent, at
such address, an opinion of counsel acceptable to the Administrative Agent
stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "UNITED STATES" and "UNITED STATES
PERSON" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Each Secured Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of the Credit Agreement in the case of each Initial Lender or Initial
Issuing Bank, as the case may be, and on the date of the Assignment and
Acceptance or other agreement pursuant to which it became a Secured Party in the
case of each other Secured Party (but only so long thereafter as such Secured
Party remains lawfully able to do so), provide each of the Administrative Agent
and Guarantors with two originals of Internal Revenue Service Form 1001 or 4224,
as appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that such Secured Party is exempt from or is
entitled to a reduced rate of United States withholding tax on payments under
the Credit Agreement or the Notes. If the form provided by a Secured Party at
the time such Secured Party first becomes a party to the Credit Agreement
indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Secured Party provides the appropriate form certifying that a lesser
rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided,
however, that if at the date of the Assignment and Acceptance pursuant to which
a Secured Party assignee becomes a party to the Credit Agreement, the Secured
Party assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to the
Secured Party assignee on such date. If any form or document referred to in
this subsection (e) and requested by a Guarantor pursuant to this subsection (e)
requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service Form 1001 or 4224, that the Secured Party reasonably considers
to be confidential, the Secured Party shall give notice thereof to such
Guarantor and shall not be obligated to include in such form or document such
confidential information.
(f) For any period with respect to which a Secured Party has failed
to provide any Guarantor, following such Guarantor's request therefor pursuant
to subsection (e) above, with the appropriate form described in subsection (e)
(other than if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form otherwise
is not required under subsection (e)), such Secured Party shall not be entitled
to indemnification under subsection (a) or (c) with respect to Taxes imposed by
the United States; PROVIDED, HOWEVER, that should a Secured Party become subject
to Taxes because of its failure to deliver a form required hereunder, such
Guarantor shall take all such steps as such Secured Party shall reasonably
request to assist such Secured Party to recover such Taxes.
(g) Any Secured Party claiming any additional amounts payable
pursuant to this Section 5 agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the judgment of such Secured Party,
be otherwise
disadvantageous to such Secured Party.
(h) Without prejudice to the survival of any other agreement of
each Guarantor hereunder or under any other Loan Document, the agreements and
obligations of each Guarantor contained in this Section 5 shall survive the
payment in full of the Guaranteed Obligations and all other amounts payable
under this Guaranty and the other Loan Documents.
Section 6. REPRESENTATIONS AND WARRANTIES. The Guarantors hereby
jointly and severally represent and warrant as follows:
(a) There are no conditions precedent to the effectiveness of this
Guaranty that have not been satisfied or waived.
(b) Each Guarantor has, independently and without reliance upon the
Administrative Agent or any other Secured Party and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Guaranty, and each Guarantor has established
adequate means of obtaining from any other Loan Parties on a continuing basis
information pertaining to (and is now, and on a continuing basis will be,
completely familiar with) the financial condition, operations, properties and
prospects of the Borrower and the other Loan Parties.
Section 7. COVENANTS. Each Guarantor hereby covenants and agrees
that, so long as any part of the Guaranteed Obligations shall remain unpaid, any
Letter of Credit shall be outstanding, any Bank Hedge Agreement shall not have
expired or terminated or any Lender Party shall have any Commitment, such
Guarantor will, unless the Administrative Agent and Required Lenders shall
otherwise consent in writing, perform or observe all of the terms, covenants and
agreements that this Guaranty and the other Loan Documents state that such
Guarantor shall perform or observe.
Section 8. AMENDMENTS, ETC. (a) No amendment or waiver of
any provision of this Guaranty, and no consent to any departure by any
Guarantor therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Administrative Agent and Required Lenders, and
then such waiver or consent shall be effective only in the specific instance,
and for the specific purpose for which given; PROVIDED, HOWEVER, that no
amendment, waiver or consent shall, unless in writing and signed by all of
the Lenders (other than any Lender Party which is, at such time, a Defaulting
Lender), (a) release any Guarantor from its liability hereunder or (b)
postpone any date fixed for payment hereunder.
(b) Upon the execution and delivery by any Person of a supplemental
guaranty in substantially the form of EXHIBIT A hereto (each a "GUARANTY
SUPPLEMENT"), such Person shall be referred to as an "ADDITIONAL GUARANTOR" and
shall be and become a Guarantor for all purposes hereunder and each reference in
this Guaranty to a "Guarantor" shall also mean and be a reference to such
Additional Guarantor and each reference in any other Loan Document to a
"Guarantor" or "Subsidiary Guarantor" shall also mean and be a reference to such
Additional Guarantor.
Section 9. NOTICES, ETC. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed,
telecopied, telexed or delivered to it, if to a Guarantor, addressed to it at
the address listed for such Guarantor on the signature pages hereof (or in
the applicable Guaranty Supplement), if to the Administrative Agent or any
Lender Party, at its address specified in Section 11.2 of the Credit
Agreement, if to any Hedge Bank, at its address specified in the Bank Hedge
Agreement to which it is a party, or, as to any party, at such other address
as shall be designated by such party in a written notice to each other party,
in each case with a copy to ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP at its address set forth
in Section 11.2 of the Credit Agreement. All such notices and communications
shall, (i) when mailed by certified mail, return receipt requested, be
effective three (3) days after mailing, (ii) when telegraphed, telecopied or
telexed be effective upon delivery to the telegraph company, upon
transmission by telecopier or upon confirmation by telex answerback, (iii)
when delivered in person, be effective when delivered, and (iv) when
delivered by overnight courier, be effective two (2) Business Days after
delivery to the courier properly addressed, except that notices and
communications to the Administrative Agent pursuant to this Agreement shall
not be effective until received by the Administrative Agent.
Section 10. NO WAIVER; REMEDIES. No failure on the part of the
Administrative Agent or any other Secured Party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 11. RIGHT OF SETOFF. Upon the occurrence and during the
continuance of any Event of Default, each Lender Party and each of its
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender Party or such Affiliate to
or for the credit or the account of any Guarantor against any and all of the
Obligations of such Guarantor now or hereafter existing under this Guaranty,
whether or not such Lender Party shall have made any demand under this Guaranty
and although such Obligations may be unmatured. Each Lender Party agrees
promptly to notify such Guarantor after any such setoff and application;
PROVIDED, HOWEVER, that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of each Lender Party and
its Affiliates under this Section are in addition to the other rights and
remedies (including, without limitation, other rights of setoff) that such
Lender Party and its respective Affiliates has.
Section 12. INDEMNIFICATION. Without limitation on any other
Obligations of any Guarantor or the remedies of the Secured Parties under this
Guaranty, each Guarantor shall, and agrees to, jointly and severally, to the
fullest extent permitted by law, indemnify, defend and save and hold harmless
each Secured Party from and against, and shall pay on demand, any and all
losses, liabilities, damages, costs, expenses and charges (including the
reasonable fees and disbursements of such Secured Party's legal counsel)
suffered or incurred by such Secured Party as a result of any failure of any
Guaranteed Obligations to be the legal, valid and binding obligations of the
Borrower or any other Guarantor enforceable against the Borrower or such
other Guarantor (as the case may be) in accordance with their terms.
Section 13. CONTINUING GUARANTY; ASSIGNMENTS UNDER THE CREDIT
AGREEMENT. This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the later of the indefeasible payment in full in cash of
the Guaranteed Obligations and all other amounts payable under this Guaranty and
the later of (i) the Termination Date, (ii) the expiration, termination or
cancellation of all Letters of Credit, and (iii) the expiration or termination
of all Bank Hedge Agreements, (b) be binding upon each Guarantor, its successors
and assigns and (c) inure to the benefit of and be enforceable by the
Administrative Agent and the other Secured Parties and their respective
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (c), any Secured Party may assign or otherwise transfer all or
any portion of its rights and obligations under the Credit Agreement (including,
without limitation, all or any portion of its Commitment, the Advances owing to
it and the Note or Notes held by it) to any other Person, and such other Person
shall thereupon become vested with all the benefits in respect thereof granted
to such Secured Party by this Guaranty or otherwise, in each case to the maximum
extent provided in Section 11.7 of the Credit Agreement.
Section 14. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL, ETC.
(A) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ITS CONFLICTS
OF LAW PRINCIPLES).
(B) EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS,
FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK
STATE COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW YORK
CITY, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS
TO WHICH IT IS OR IS TO BE A PARTY, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT
ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH NEW YORK STATE COURT OR IN SUCH FEDERAL COURT LOCATED
WITHIN THE STATE OF NEW YORK. EACH GUARANTOR AGREES THAT A FINAL NON-APPEALABLE
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS GUARANTY SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT OR ANY OTHER SECURED PARTY MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY OF THE OTHER LOAN
DOCUMENTS TO WHICH IT IS OR IS TO BE A PARTY IN THE COURTS OF ANY JURISDICTION.
(C) EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF, OR RELATING TO, THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS
TO WHICH IT IS OR IS TO BE A PARTY, IN ANY NEW YORK STATE OR FEDERAL COURT.
EACH GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.
(D) EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT
OR OTHERWISE, IN EQUITY OR AT LAW) ARISING OUT OF OR RELATING TO ANY OF THE LOAN
DOCUMENTS, THE TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF THE
ADMINISTRATIVE AGENT OR ANY OTHER SECURED PARTY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, the Guarantors have caused this Guaranty to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
▇▇▇▇▇ ENTERPRISES CORPORATION
▇▇▇▇▇ TRANSPORTATION COMPANY
TURECAMO MARITIME, INC.
WHITE STACK MARITIME CORP.
TURECAMO OF SAVANNAH, INC.
TURECAMO ENVIRONMENTAL SERVICES, INC.
▇▇▇▇▇ TOWING CORPORATION
▇▇▇▇▇ TOWING OF TEXAS, INC.
SEABOARD BARGE CORPORATION
PETROLEUM TRANSPORT CORPORATION
▇▇▇▇▇ TOWING OF DELAWARE, INC.
▇▇▇▇▇ SERVICES CORPORATION
▇▇▇▇▇ SHIPYARD CORPORATION
HAMPTON ROADS LAND CO., INC.
PORTSMOUTH NAVIGATION CORPORATION
▇▇▇▇▇▇▇▇ SHIPYARD, INC.
▇▇▇▇▇ BARGE CORP.
▇▇▇▇▇▇ BAY TOWING COMPANY OF PENNSYLVANIA
▇▇▇▇▇▇ BAY TOWING COMPANY OF VIRGINIA
FLORIDA TOWING COMPANY
MCF SUBSIDIARY, INC.
FOR EACH OF THE FOREGOING CORPORATIONS:
BY: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, VICE PRESIDENT
ADDRESS: C/▇ ▇▇▇▇▇ TRANSPORTATION COMPANY
TWO ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Signature Page to Subsidiary Guaranty]