GUARANTY
(Material Domestic Subsidiaries)
GUARANTY, dated as of June 27, 1997 (this "Guaranty"), made by certain
subsidiaries of DIMON Incorporated, a Virginia corporation (the "Borrower"), now
or hereafter becoming parties hereto (collectively, the "Guarantors"), in favor
of NationsBank, N.A., as administrative agent (the "Administrative Agent"), the
Lenders (as defined below) and all other Persons holding any of the Guaranty
Obligations (as defined below).
PRELIMINARY STATEMENTS.
Certain lenders (together with other lenders that may from time to time
become parties thereto the "Lenders"), the Administrative Agent, First Union
National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, have entered into a Credit Agreement dated as of
June 27, 1997 (as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"; terms defined therein and not otherwise defined herein
being used herein as therein defined) with the Borrower.
Pursuant to the Credit Agreement, the Lenders have agreed to make
Advances to the Borrower in accordance with the terms thereof.
It is a condition precedent to the making of any Advance by the Lenders
under the Credit Agreement that the Guarantors shall have executed and delivered
this Guaranty.
The Guarantors will derive substantial direct and indirect benefit from
the transactions contemplated by the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to make Advances under the Credit Agreement, each Guarantor hereby
agrees as follows:
SECTION 1. Guaranty. Each Guarantor hereby jointly and severally,
irrevocably and unconditionally, guarantees the due and punctual payment of all
present and future indebtedness and other liabilities of the Borrower owing to
the Administrative Agent, any Lender, any Person entitled to indemnification
pursuant to Section 11.3 of the Credit Agreement, and their respective
successors, transferees or assigns, of every type and description, whether or
not evidenced by any note, guaranty or other instrument, arising under or in
connection with the Credit Agreement, the Notes or any other Loan Document,
whether or not for the payment of money, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired, including, without
limitation, all principal, interest, charges, expenses, fees, attorneys, fees
and disbursements and any other sum chargeable to the Borrower under the Credit
Agreement, or any other Loan Document, whether at stated maturity, by
acceleration or otherwise, and the performance of all obligations of the
Borrower now or hereafter existing under the Credit Agreement, the Notes and the
other Loan Documents (such obligations being the "Guaranty Obligations"), and
agrees to pay any and all expenses (including counsel fees and expenses)
incurred by the Administrative Agent, the Lenders or any other Persons holding
any of the Guaranty Obligations in enforcing any rights under this Guaranty
without limiting the generality of the foregoing, to the fullest extent
permitted by law, each Guarantor's liability shall extend to all amounts which
constitute part of the Guaranty Obligations and would be owed by the Borrower
under the Credit Agreement, the Notes and the other 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. The
foregoing guaranty shall be a guaranty of payment and not of collection merely.
SECTION 2. Guaranty Absolute. Each Guarantor guarantees that the
Guaranty Obligations will be paid and performed strictly in accordance with the
terms of the Credit Agreement, the Notes and the other 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, the Lenders or any other Persons holding any of the Guaranty Obligations
with respect thereto. The obligations of each Guarantor under this Guaranty are
independent of the Guaranty Obligations, 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, any other
Guarantor or any other guarantor of the Guaranty Obligations, or whether the
Borrower or any other Guarantor is joined in any such action or actions. The
liability of each Guarantor under this Guaranty shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of the Credit
Agreement, the Notes, the other Loan Documents or any other agreement
or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, or any extension or renewal of, all or any of the
Guaranty Obligations, or any other amendment or waiver of or any
consent to departure from the Credit Agreement, the Notes or the other
Loan Documents, including, without limitation, any increase in the
Guaranty Obligations resulting from the extension of additional credit
to the Borrower under the Credit Agreement or the Other Loan Documents;
(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
Guaranty Obligations;
(d) any manner of application of collateral, or proceeds
thereof, to all or any of the Guaranty Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Guaranty Obligations or any other assets of the Borrower, any other
Guarantor or any other guarantor of the Guaranty Obligations;
(e) any change, restructuring or termination of the corporate
structure or existence of the Borrower, any other Guarantor or any
other guarantor of the Guaranty Obligations; or
(f) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Borrower, any other
Guarantor or any other guarantor of the Guaranty Obligations.
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 Guaranty Obligations is rescinded
or must otherwise be returned by any of the Administrative Agent, Lenders or
other Persons holding any of the Guaranty Obligations upon the insolvency,
bankruptcy or reorganization of the Borrower or otherwise, all as though such
payment had not been made.
SECTION 3. Waiver. Each Guarantor hereby waives promptness, diligence,
presentment, demand of payment, protest, notice of acceptance of this Guaranty,
notice of any liability to which it may apply and any other notice with respect
to any of the Guaranty Obligations, this Guaranty and any requirement that any
of the Administrative Agent, Lenders or other Persons holding any of the
Guaranty Obligations protect, secure, perfect or insure any security interest or
lien or any property subject thereto or exhaust any right or take any action
against the Borrower, any other Guarantor or any other person or entity or any
collateral. Without limiting the generality of the foregoing provisions of this
Section 3, each Guarantor hereby specifically waives the benefits of N.C. Gen.
Stat. ▇▇.▇▇. 26-7 through 26-9, inclusive.
SECTION 4. Subrogation. Upon the making by any Guarantor of any payment
hereunder for the account of the Borrower, such Guarantor shall be subrogated to
the rights of the payee against the Borrower with respect to such payment;
provided, that such Guarantor shall not enforce any right or receive any payment
by way of subrogation until all of the Guaranty Obligations shall have been paid
in full and the Commitments have been terminated. If any amount shall be paid to
any Guarantor on account of such subrogation rights prior to the payment in full
of the Guaranty Obligations and the termination of the Commitments, such amounts
shall be held in trust for the benefit of the Administrative Agent, the Lenders
and any other holder of the Guaranty Obligations and shall forthwith be paid on
demand to the Administrative Agent to be credited and applied to the Guaranty
Obligations, whether matured or unmatured, in accordance with the terms of the
Credit Agreement or to be held by the Administrative Agent as collateral
security for any Guaranty Obligations existing.
SECTION 5. Limitation of Guaranty Obligations. Anything herein to the
contrary notwithstanding:
(a) It is the intent of the Guarantors, the Administrative Agent, the
Lenders and any other Person holding any of the Guaranty Obligations that each
Guarantor's maximum obligations hereunder (such Guarantor's "Maximum Guaranty
Liability") shall not be in excess of (after giving effect to all rights of such
Guarantor to contribution or subrogation provided herein):
(i) in a case or proceeding commenced by or against such
Guarantor under the Bankruptcy Code of 1978, 11 U.S.C. ss. 101 et.
seq., as amended (the "Bankruptcy Code"), on or within one year from
the date on which any of the Guaranty Obligations are incurred, the
maximum amount which would not otherwise cause the obligations of such
Guarantor hereunder (or any other obligations of such Guarantor to the
Administrative Agent, the Lenders and any other Person holding any of
the Guaranty Obligations) to be avoidable or unenforceable against such
Guarantor under (A) Section 548 of the Bankruptcy Code or (B) any state
fraudulent transfer or fraudulent conveyance act or statute applied in
such case or proceeding by virtue of Section 544 of the Bankruptcy
Code; or
(ii) in a case or proceeding commenced by or against such
Guarantor under the Bankruptcy Code subsequent to one year from the
date on which any of the Guaranty Obligations are incurred, the maximum
amount which would not otherwise cause the obligations of such
Guarantor hereunder (or any other obligations of such Guarantor to the
Administrative Agent, the Lenders and any other Person holding any of
the Guaranty Obligations) to be voidable or unenforceable against such
Guarantor under any state fraudulent transfer or fraudulent conveyance
act or statute applied in any such case or proceeding by virtue of
Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against such
Guarantor under any law, statute or regulation other than the
Bankruptcy Code relating to dissolution, liquidation, conservatorship,
bankruptcy, moratorium, readjustment of debt, compromise,
rearrangement, receivership, insolvency, reorganization or similar
debtor relief from time to time in effect affecting the rights of
creditors generally (collectively, "Other Debtor Relief Law"), the
maximum amount which would not otherwise cause the obligations of such
Guarantor hereunder (or any other obligations of such Guarantor to the
Administrative Agent, the Lenders and any other Person holding any of
the Guaranty Obligations) to be avoidable or unenforceable against such
Guarantor under such other Debtor Relief Law, including, without
limitation, any state fraudulent transfer or fraudulent conveyance act
or statute applied in any such case or proceeding. (The substantive
laws under which the possible avoidance or unenforceability of the
obligations of any Guarantor hereunder (or any other obligations of
such Guarantor to the Administrative Agent, the Lenders and any other
Person holding any of the Guaranty Obligations) shall be determined in
any such case or proceeding shall hereinafter be referred to as the
"Avoidance Provisions").
(b) To the end set forth in Section 5(a)(i), (ii) or (iii), but only to
the extent that the obligations of any Guarantor hereunder would otherwise be
subject to avoidance under any Avoidance Provisions if such Guarantor is not
deemed to have received valuable consideration, fair value or reasonably
equivalent value for such obligations, or if the obligations of any Guarantor
hereunder would render such Guarantor not Solvent as of the time any of the
obligations of such Guarantor are deemed to have been incurred under such
Avoidance Provisions, then the obligations of such Guarantor hereunder shall be
reduced to that amount which, after giving effect thereto, would not cause the
obligations of such Guarantor hereunder (or any other obligations of such
Guarantor to the Administrative Agent, the Lenders or any other Person holding
any of the Guaranty Obligations), as so reduced, to be subject to avoidance
under such Avoidance Provisions. This Section 5(b) is intended solely to
preserve the rights hereunder of the Administrative Agent, the Lenders and any
other Person holding any of the Guaranty Obligations to the maximum extent that
would not cause the obligations of the Guarantors hereunder to be subject to
avoidance under any Avoidance Provisions, and no Guarantor nor any other Person
shall have any right or claim under this Section 5(b) as against the
Administrative Agent, the Lenders or any other Person holding any of the
Guaranty Obligations that would not otherwise be available to such Person under
the Avoidance Provisions.
SECTION 6. Contribution Obligations. In the event that any Guarantor
(the "Funding Guarantor") shall make any payment or payments under this Guaranty
or shall suffer any loss as a result of any realization upon any collateral
granted by it to secure its obligations hereunder, each other Guarantor (each, a
"Contributing Guarantor") hereby agrees to contribute to the Funding Guarantor
an amount equal to such Contributing Guarantor's pro rata share of such Payment
or payments made, or losses suffered, by such Funding Guarantor determined by
reference to the ratio of (a) the amount, expressed in Dollars, of the
percentage of each such Contributing Guarantor's Net Assets (without giving
effect to any right to receive any contribution or subrogation or obligation to
make any contribution hereunder), to (b) the sum of the Net Assets of all
Guarantors (including the Funding Guarantor) hereunder (without giving effect to
any right to receive contribution or subrogation hereunder or any obligation to
make any contribution hereunder); provided, that the Contributing Guarantor
shall not be obligated to make any such payment to the Funding Guarantor if the
Contributing Guarantor is not Solvent at the time of such contribution or if the
Contributing Guarantor would be rendered not Solvent as a result thereof.
Nothing in this Section 6 shall affect each Guarantor's several liability for
the entire amount of the Guaranty Obligations, subject only to the limitations
set forth in Section 6. For the purposes of this Section 6, (x) the "Net Assets"
of any Guarantor shall mean the highest amount, as of any Determination Date, by
which (A) the aggregate present fair saleable value of the assets of such
Guarantor exceeds (B) the amount of all the debts and liabilities of such
Guarantor (including contingent, subordinated, unmatured and unliquidated
liabilities, but excluding the obligations of such Guarantor hereunder), and (y)
"Determination Date" shall mean each of (1) the Closing Date, (2) the date of
commencement of a case under Title 11 of the Code in which a Guarantor is a
debtor, and (3) the date enforcement hereunder is sought with respect to such
Guarantor. Each Funding Guarantor covenants and agrees that its right to receive
any contribution from any Contributing Guarantor hereunder shall be subordinated
and junior in right of payment in full of all of the Guaranty Obligations.
SECTION 7. Amendments, Etc. No amendment or waiver of any provision of
this Guaranty, and no consent to any departure by any Guarantor herefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Required Lenders (or the Administrative Agent with the consent of the Required
Lenders) and the Guarantors, 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 the Lenders, (a) limit the liability of any Guarantor
hereunder, (b) postpone any date fixed for payment hereunder or (c) change the
number of Lenders required to take any action hereunder.
SECTION 8. Addresses for Notices. All notices and other communications
provided for hereunder shall be given in the manner specified in the Credit
Agreement, (i) if to any Guarantor, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ Attention: President and (ii) if to the Administrative Agent or any
Lender, at its address specified in the Credit Agreement, or, as to any of them,
at such other address as shall be designated by such party in a written notice
to each other party.
SECTION 9. No Waiver; Remedies. No failure on the part of the
Administrative Agent, any Lender or any other Person holding any of the Guaranty
Obligations 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. No notice to or demand on any Guarantor in any case shall
entitle such Guarantor to any other or further notice or demand in any similar
or other circumstances or constitute a waiver of the rights of the
Administrative Agent, the Lenders or any other Person holding any of the
Guaranty Obligations to any other or further action in any circumstances without
notice or demand. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
SECTION 10. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 9.2 of the Credit Agreement to
authorize the Administrative Agent to declare the Notes due and payable pursuant
to the provisions of said Section 9.2, each Lender 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 to or for the credit or the account of any Guarantor against any and all
of the obligations of the Guarantors now or hereafter existing under this
Guaranty, whether or, not such Lender shall have made any demand under this
Guaranty and although such obligations may be contingent and unmatured. Each
Lender agrees promptly to notify the Guarantors after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Lender under this Section 10 are in addition to other rights and remedies
(including, without limitation, other rights; of set-off) which such Lender may
have.
SECTION 11. Continuing Guaranty; Assignments under Credit Agreement.
This Guaranty is an irrevocable and continuing guaranty and shall (i) remain in
full force and effect until the later of (x) the payment in full of the Guaranty
Obligations (including, without limitation, all of the Advances) and all amounts
payable under this Guaranty and (y) the expiration or termination of the
Commitments, (ii) be binding upon each Guarantor, its successors and assigns and
(iii) inure to the benefit of, and be enforceable by, the Administrative Agent,
the Lenders and any other Person holding any of the Guaranty Obligations, and
their respective successors, transferees and assigns. Without limiting the
generality of the foregoing clause (iii), the Administrative Agent or any Lender
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 any Note held by
it) to any other person or entity, and such other person or entity shall
thereupon become vested with all the benefits in respect thereof granted to the
Administrative Agent or such Lender herein or otherwise, subject, however, to
the provisions of Article 10 (concerning the Administrative Agent) and Section
11.5 of the Credit Agreement (concerning assignments and participations).
SECTION 13. Additional Guarantors. In the event that any Material
Domestic Subsidiary of the Borrower now existing or hereafter created or
acquired is required under Section 7.7 of the Credit Agreement to become a
Guarantor hereunder, such Material Domestic Subsidiary shall become a Guarantor
hereunder and be bound by all of the terms and conditions hereof, upon
delivering to the Administrative Agent an executed counterpart of a Supplement
to Guaranty in the form of Exhibit A hereto.
SECTION 14. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF VIRGINIA
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THAT STATE.
SECTION 15. Consent to Jurisdiction; Waiver of Jury Trial.
(a) EACH GUARANTOR, IN RESPECT OF ITSELF AND ITS PROPERTIES,
REPRESENTS THAT IT IS SUBJECT TO (AND HEREBY IRREVOCABLY SUBMITS TO) THE
NON-EXCLUSIVE JURISDICTION OF ANY COURT IN THE STATE OF NORTH CAROLINA IN
MECKLENBURG COUNTY, OR OF THE UNITED STATES FOR THE WESTERN DISTRICT OF NORTH
CAROLINA, IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS GUARANTY, AND EACH GUARANTOR IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
ANY SUCH COURT. EACH GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION TO THE LAYING OF THE VENUE
OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM
THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORM.
(b) EACH GUARANTOR IRREVOCABLY CONSENTS TO PROCESS BEING
SERVED IN ANY SUIT, ACTION OR PROCEEDING OF THE NATURE REFERRED TO IN PARAGRAPH
(a) OF THIS SECTION 15 BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED AIR
MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO THE ADDRESS OF THE BORROWER
SPECIFIED IN OR DESIGNATED PURSUANT TO SECTION 8. EACH GUARANTOR IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ALL
CLAIM OF ERROR BY REASON OF ANY SUCH SERVICE AND AGREES, TO THE FULLEST EXTENT
IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, THAT SAID SERVICE (A) SHALL BE
DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON SUCH GUARANTOR IN ANY
SUCH SUIT, ACTION OR PROCEEDING AND (B) SHALL BE TAKEN AND HELD TO BE VALID
PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO SUCH GUARANTOR.
(c) TO THE FULLEST EXTENT PERMITTED BY LAW, EACH GUARANTOR
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
The foregoing provisions shall not limit the right of any
Lender, the Administrative Agent or any other Person holding any of the Guaranty
Obligations to serve process in any other manner permitted by law or limit the
right of any Lender or the Administrative Agent or other Person holding any of
the Guaranty Obligations to bring any suit, action or proceeding or to obtain
execution on any judgment rendered in any suit, action or proceeding in any
other appropriate jurisdiction or in any other matter.
SECTION 16. Acknowledgment of Receipt of Loan Documents. Each Guarantor
hereby acknowledges receipt and hereby consents to the terms, of the Credit
Agreement and each of the other Loan Documents.
SECTION 17. Severability. In the case any provision in or obligation
under this Guaranty shall be determined to be invalid, illegal or unenforceable,
in whole or in part, under applicable law, the validity, legality and
enforceability of the remaining provisions or obligations of this Guaranty shall
not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
GUARANTORS:
DIMON INTERNATIONAL, INC.
By:_______________________________
Name:
Title:
FLORIMEX WORLDWIDE, INC.
By:_______________________________
Name:
Title:
The undersigned, on behalf of the Lenders, hereby acknowledges and consents to
the terms of the foregoing Guaranty:
NATIONSBANK, N.A., as Administrative Agent
By:_______________________________
Name:
Title:
EXHIBIT A
SUPPLEMENT TO GUARANTY
THIS SUPPLEMENT TO GUARANTY (this "Supplement"), dated as of
______________ __, 19__, made by _______________, a ________________ corporation
(the "Additional Guarantor"), in favor of NationsBank, N.A., as administrative
agent (the "Administrative Agent"), the Lenders (as defined below) and all other
Persons holding any of the Guaranty Obligations (as defined below).
PRELIMINARY STATEMENTS.
▇. ▇▇▇▇▇▇▇ lenders (together with other lenders that may from
time to time become parties thereto the "Lenders"), the Administrative Agent,
First Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, have entered into a certain Credit Agreement,
dated as of June 27, 1997 (as amended or otherwise modified from time to time,
the "Credit Agreement"; terms defined therein and not otherwise defined herein
being used herein as therein defined) with DIMON Incorporated, a Virginia
corporation (the "Borrower"). Pursuant to that certain Guaranty, dated as of
June 27, 1997 (as amended or otherwise modified from time to time, the
"Guaranty"), certain of the Borrower's Subsidiaries (the "Guarantors") have
guarantied the Obligations of the Borrower.
B. Pursuant to Section 7.7 of the Credit Agreement, the
Borrower is required to cause the Additional Guarantor to become a party to this
Supplement, and it is a condition to the obligations of the Lenders to continue
to make Advances under the Credit Agreement that the Additional Guarantor
execute and deliver to the Administrative Agent this Supplement, and the
Additional Guarantor desires to execute and deliver this Supplement to satisfy
such requirement and condition.
NOW, THEREFORE, in consideration of the premises and in order
to ensure the Borrower's compliance with and to induce the Lenders to make
Advances under the Credit Agreement, the Additional Guarantor hereby agrees as
follows:
SECTION 1. Additional Guarantor. The Additional Guarantor
hereby assumes all obligations, and agrees to be bound by all covenants,
agreements and obligations, of a Guarantor under, and shall be a Guarantor for
all purposes of, the Guaranty and shall be fully liable thereunder to the
Administrative Agent, any Lender or any Person entitled to indemnification
pursuant to Section 11.3 of the Credit Agreement, or any of their respective
successors, transferees or assigns, to the same extent and with the same effect
as though the Additional Guarantor had been one of the Guarantors originally
executing and delivering the Guaranty. Without limiting the foregoing:
(a) The Additional Guarantor hereby irrevocably and
unconditionally, jointly and severally with all other Guarantors, guarantees the
due and punctual payment of all present and future indebtedness and other
liabilities of the Borrower owing to the Administrative Agent, any Lender, any
Person entitled to indemnification pursuant to Section 11.3 of the Credit
Agreement, and their respective successors, transferees or assigns, of every
type and description, whether or not evidenced by any note, guaranty or either
instrument, arising under or in connection with the Credit Agreement, the Notes
or any other Loan Document, whether or not for the payment of money, whether
direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and however
acquired, including, without limitation, all principal, interest, charges,
expenses, fees, attorneys' fees and disbursements and any other sum chargeable
to the Borrower under the Credit Agreement or any other Loan Document, whether
at stated maturity, by acceleration or otherwise, and the performance, of all
obligations of the Borrower now or hereafter existing under the Credit
Agreement, the Notes and the other Loan Documents (such obligations being the
"Guaranty Obligations"), and agrees to pay any and all expenses (including
counsel fees and expenses) incurred by the Administrative Agent, the Lenders or
any other Persons holding any of the Guaranty Obligations in enforcing any
rights under this Guaranty. Without limiting the generality of the foregoing,
the Guarantor's liability shall extend to all amounts which constitute part of
the Guaranty Obligations and would be owed by the Borrower under the Credit
Agreement, the Notes and the other 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;
(b) The Additional Guarantor guarantees that the Guaranty
Obligations will be paid and performed strictly in accordance with the terms of
the Credit Agreement, the Notes and the other 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, the
Lenders or any other Persons holding any of the Guaranty Obligations with
respect thereto. The obligations of the Additional Guarantor under this Guaranty
are independent of the Guaranty Obligations, and a separate action or actions
may be brought and prosecuted against the Additional Guarantor to enforce this
Guaranty, irrespective of whether any action is brought against the Borrower,
any other Guarantor or any other guarantor of the Guaranty Obligations or
whether the Borrower or any other Guarantor is joined in any such action or
actions;
(c) The foregoing guaranty shall be a guaranty of payment and
not of collection merely;
(d) The foregoing guarantee is subject to the limitations
expressly provided in Section 5 of the Guaranty and to the other terms and
conditions governing the guaranty of Guarantors under the Guaranty, including,
without limitation, Section 2 of the Guaranty;
(e) All references in the Guaranty to the "Guarantors" or any
"Guarantor" or to the "Funding Guarantor" or the "Contributing Guarantor" as
applicable, shall be deemed to include and to refer to the Additional Guarantor.
SECTION 2. Waiver. The Additional Guarantor hereby waives promptness,
diligence, presentment, demand of payment, protest, notice of acceptance of this
Guaranty, notice of any liability to which it may apply and any other notice
with respect to any of the Guaranty Obligations, this Guaranty and any
requirement that the Administrative Agent, Lenders or other Persons holding any
of the Guaranty Obligations protect, secure, perfect or insure any security
interest or lien or any property subject thereto or exhaust any right or take
any action against the Borrower, any other Guarantor or any other person or
entity or any collateral. Without limiting the generality of the foregoing
provisions of this Section 2, the Additional Guarantor hereby specifically
waives the benefits of N.C. Gen. Stat. ▇▇.▇▇. 26-7 through 26-9, inclusive.
SECTION 3. Subrogation. Upon the making by the Additional Guarantor of
any payment under the Guaranty (and this Supplement) for the account of the
Borrower, the Additional Guarantor shall be subrogated to the rights of the
payee against the Borrower with respect to such payment; provided that, the
Additional Guarantor shall not enforce any right or receive any payment by way
of subrogation until all of the Guaranty Obligations shall have been paid in
full and the Commitments have been terminated. If any amount shall be paid to
the Additional Guarantor on account of such subrogation rights prior to the
payment in full of the Guaranty Obligations and the termination of the
Commitments, such amounts shall be held in trust for the benefit of the
Administrative Agent, the Lenders and any other holder of the Guaranty
Obligations and shall forthwith be paid to the Administrative Agent to be
credited and applied upon the Guaranty Obligations, whether matured or
unmatured, in accordance with the terms; of the Credit Agreement or to be held
by the Administrative Agent as collateral security for any Guaranty Obligations
existing.
SECTION 4. Successors and Assigns. The Guaranty (together with this
Supplement) constitutes an irrevocable and continuing guaranty and shall (i)
remain in full force and effect until the later of (x) the payment in full of
the Guaranty Obligations and all amounts payable under the Guaranty (and this
Supplement) and (y) the expiration or termination of the Commitments, (ii) be
binding upon the Additional Guarantor, its successors and assigns and (iii)
inure to the benefit of, and be enforceable by, the Administrative Agent, the
Lenders and any other Person holding any of the Guaranty Obligations, and their
respective successors, transferees and assigns.
SECTION 5. GOVERNING LAW. THIS SUPPLEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF VIRGINIA,
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THAT STATE.
SECTION 6. Consent to Jurisdiction; Waiver of Jury Trial.
(a) THE ADDITIONAL GUARANTOR, IN RESPECT OF ITSELF AND ITS PROPERTIES,
REPRESENTS THAT IT IS SUBJECT TO (AND HEREBY IRREVOCABLY SUBMITS TO) THE
NON-EXCLUSIVE JURISDICTION OF ANY COURT IN THE STATE OF NORTH CAROLINA IN
MECKLENBURG COUNTY, OR OF THE UNITED STATES FOR THE WESTERN DISTRICT OF NORTH
CAROLINA, IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS GUARANTY, AND THE ADDITIONAL GUARANTOR IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT. THE ADDITIONAL GUARANTOR IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION
TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORM.
(b) THE ADDITIONAL GUARANTOR IRREVOCABLY CONSENTS TO PROCESS BEING
SERVED IN ANY SUIT, ACTION OR PROCEEDING OF THE NATURE REFERRED TO IN CLAUSE (a)
OF THIS SECTION 6 BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED AIR MAIL,
POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO THE ADDITIONAL GUARANTOR AT ITS
ADDRESS AT ___________________________. THE ADDITIONAL GUARANTOR IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ALL
CLAIM OF ERROR BY REASON OF ANY SUCH SERVICE AND AGREES, TO THE FULLEST EXTENT
IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, THAT SAID SERVICE (A) SHALL BE
DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON SUCH GUARANTOR IN ANY
SUCH SUIT, ACTION OR PROCEEDING AND (B) SHALL BE TAKEN AND HELD TO BE VALID
PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO THE ADDITIONAL GUARANTOR.
(c) TO THE FULLEST EXTENT PERMITTED BY LAW, THE ADDITIONAL GUARANTOR
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
The foregoing provisions shall not limit the right of any Lender, the
Administrative Agent or any other Person holding any of the Guaranty Obligations
to serve process in any other manner permitted by law or limit the right of any
Lender or the Administrative Agent or other Person holding any of the Guaranty
Obligations to bring any suit, action or proceeding or to obtain execution on
any judgment rendered in any suit, action or proceeding in any other appropriate
jurisdiction or in any other matter.
IN WITNESS WHEREOF, the Additional Guarantor has caused this
Supplement to be duly executed and delivered by its duly authorized officer as
of the date first above written:
ADDITIONAL GUARANTOR:
__________________________________
By:_______________________________
Name:
Title: