Subordinated Guaranty Agreement Dated as of September 17, 2010 Of World Acceptance Corporation of Alabama World Acceptance Corporation of Missouri World Finance Corporation of Georgia World Finance Corporation of Louisiana World Acceptance Corporation...
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This
instrument and the rights and obligations evidenced hereby are subordinate in
the manner and to the extent set forth in that certain Subordination and
Intercreditor Agreement (the “Intercreditor Agreement”)
dated as of even date herewith, among ▇▇▇▇▇ Fargo Preferred Capital,
Inc., as agent for the Subordinated Creditors referred to therein, Bank of
Montreal, as agent for the Senior Creditors referred to therein, and World
Acceptance Corporation, to the Senior Debt described in the Intercreditor
Agreement, and each holder of this instrument, by its acceptance hereof, shall
be bound by the provisions of the Intercreditor Agreement.
Dated as
of September 17, 2010
Of
World
Acceptance Corporation of Alabama
World
Acceptance Corporation of Missouri
World
Finance Corporation of Georgia
World
Finance Corporation of Louisiana
World
Acceptance Corporation of Oklahoma, Inc.
World
Finance Corporation of South Carolina
World
Finance Corporation of Tennessee
World
Finance Corporation of Texas
WFC
Limited Partnership
WFC
of South Carolina, Inc.
World
Finance Corporation of Illinois
World
Finance Corporation of New Mexico
World
Finance Corporation of Kentucky
World
Finance Corporation of Colorado
World
Finance Corporation of Wisconsin
and
WFC
Services, Inc.
in favor
of
▇▇▇▇▇
Fargo Preferred Capital, Inc., as Collateral Agent
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Table
of Contents
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Section
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Heading
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Page
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Section
1.
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Guarantee
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2
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Section
2.
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Payment
Upon Certain Events
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3
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Section
3.
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Waivers;
Obligation Unconditional
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4
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Section
4.
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Collection
Expenses
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5
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Section
5.
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No
Subrogation Until Payment in Full; Continuation of
Guaranty
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5
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Section
6.
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Representations
and Warranties
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6
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Section
7.
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Existence
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6
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Section
8.
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Limitation
on Consolidation, Merger, Sale, Lease or other Disposition by
Guarantors
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7
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Section
9.
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Jurisdiction
and Service in Respect of Guarantors
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7
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Section
10.
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Successors
and Assigns
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8
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Section
11.
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Notices
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8
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Section
12.
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Limitation
on Maximum Liability
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8
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Section
13.
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Governing
Law
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8
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Section
14.
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Guaranty
Supplements.
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8
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Section
15.
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Miscellaneous
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9
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-i-
Attachments
to Subordinated Guaranty Agreement:
Exhibit A —Form
of Subordinated Guaranty Supplement
-ii-
This
Subordinated Guaranty Agreement (this “Guaranty”) is dated as of
September 17, 2010 among World
Acceptance Corporation of Alabama, an Alabama corporation, World
Acceptance Corporation of Missouri, a Missouri corporation, World
Finance Corporation of Georgia, a Georgia corporation, World
Finance Corporation of Louisiana, a Louisiana corporation, World
Acceptance Corporation of Oklahoma, Inc., an Oklahoma corporation, World
Finance Corporation of South Carolina, a South Carolina corporation,
World
Finance Corporation of Tennessee, a Tennessee corporation, World
Finance Corporation of Texas, a Texas corporation, WFC Limited
Partnership, a Texas limited partnership, WFC of
South Carolina, Inc., a South Carolina corporation, World
Finance Corporation of Illinois, an Illinois corporation, World
Finance Corporation of New Mexico, a New Mexico corporation, World
Finance Corporation of Kentucky, a Kentucky corporation, World
Finance Corporation of Colorado, a Colorado corporation, World
Finance Corporation of Wisconsin, a Wisconsin corporation, and WFC
Services, Inc., a South ▇▇▇▇▇▇▇▇ corporation (collectively, the “Guarantors” and individually
a “Guarantor”), in
favor of ▇▇▇▇▇ Fargo Preferred Capital, Inc. (“WFPC”), as collateral agent
hereunder for the Lenders hereinafter identified and defined (WFPC, acting as
such collateral agent and any successor or successors to WFPC acting in such
capacity being hereinafter referred to as the “Collateral
Agent”).
Recitals
of the Guarantors
A.Each Guarantor is, directly or
indirectly a subsidiary of World Acceptance Corporation, a South Carolina
corporation (the “Borrower”).
B.The Borrower has entered into that
certain Subordinated Credit Agreement, dated as even date herewith (as amended,
restated, modified and supplemented from time to time, the “Credit Agreement”), among
the Borrower, the lenders party thereto from time to time (the “Lenders”), and WFPC as
administrative agent for Lenders, pursuant to which such Lenders agreed, subject
to certain terms and conditions, to extend credit and make certain other
financial accommodations available to the Borrower.
C.All capitalized terms used herein
without definition shall have the same meanings herein as such terms have in the
Credit Agreement.
E.As a condition to extending the
credit facilities to the Borrower under the Credit Agreement, Administrative
Agent and Lenders have required, among other things, that the Guarantors execute
and deliver this Guaranty.
F.The Borrower shall also concurrently
herewith enter into that certain Subordinated Security Agreement, Pledge and
Indenture of Trust dated as of the date hereof, as the same may from time to
time be amended or restated pursuant to the terms thereof (the “Company Security Agreement”)
with the Collateral Agent whereby the Borrower grants to the Collateral Agent,
inter alia, for the
benefit of the secured creditors party thereto, all of its right, title and
interest in the Collateral (as defined therein) as security for the Secured
Indebtedness as defined therein.
G.
Each of the Guarantors shall also concurrently herewith enter into that certain
Subordinated Security Agreement, Pledge and Indenture of Trust dated as of the
date hereof, as the same may from time to time be amended or restated pursuant
to the terms thereof (the “Subsidiary Security
Agreement”) with the Collateral Agent whereby each of the Guarantors
grants on the Grant Date to the Collateral Agent, inter alia, for
the benefit of the secured creditors party thereto, all of its right, title and
interest in the Collateral (as defined therein) as security for the obligations
of the Guarantors hereunder and all other Secured Indebtedness as defined
therein. The Company Security Agreement and the Subsidiary Security
Agreement are collectively referred to herein as the “Security Agreements,” and
the Credit Agreement, the Security Agreements, the other Loan Documents entered
into in connection therewith (including this Guaranty), being referred to herein
collectively as the “Credit
Documents”.
I.The Guarantors and the Borrower are
engaged in related and mutually dependent businesses and the Guarantors will
benefit, directly or indirectly, from credit and other financial accommodations
extended by the Lenders to the Borrower.
Now,
therefore, for value received, and in consideration of advances to be
made, or credit accommodations to be given, to the Borrower by the Lenders from
time to time, the Guarantors hereby jointly and severally covenant and agree as
follows:
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Section 1.
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Guarantee.
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The
Guarantors hereby jointly and severally unconditionally guarantee to the
Collateral Agent for the benefit of each and every Lender (1) the due and
punctual payment at maturity, whether at stated maturity, by acceleration, by
notice of prepayment or otherwise, of the principal of and premium, if any, and
interest on the Obligations (as such term is defined in the Credit Agreement) in
accordance with the terms and conditions of the Credit Agreement and the other
Credit Documents, (2) the prompt performance and compliance by the Borrower
with each of its other obligations under the Credit Documents to which it is a
party, (3) the prompt performance and compliance by each Guarantor of each
of its obligations under the Credit Documents to which it is a party,
(4) the due and punctual payment of any other amounts due under the Credit
Agreement and the other Credit Documents, and (5) any and all expenses and
charges, legal or otherwise, suffered or incurred by the Lenderss, and any of
them individually, in collecting or enforcing any of such indebtedness,
obligations, and liabilities or in realizing on or protecting or preserving any
security or guarantees therefore, in each case whether now existing or hereafter
arising (and whether arising before or after the filing of a petition in
bankruptcy and including all interest, costs, fees, and charges after the entry
of an order for relief against any Guarantor or Borrower in a case under
Title 11 of the United States Bankruptcy Code or any similar proceeding,
whether or not such interest, costs, fees and charges would be an allowed claim
against such Guarantor or Borrower in such proceeding), due or to become due,
direct or indirect, absolute or contingent, and howsoever evidenced, held or
acquired. The indebtedness, obligations and liabilities described in
the immediately preceding clauses (1) through (5) are hereinafter referred to as
the “Guaranteed
Indebtedness”. Such guaranty is an absolute, unconditional,
present and continuing guaranty of payment and not of collectability and is in
no way conditioned or contingent upon any attempt to collect from the Borrower
or from any other Guarantor or upon any other condition or
contingency. If the Borrower shall fail to pay punctually any
Guaranteed Indebtedness, when and as the same shall become due and payable, the
Guarantors will upon demand immediately pay the same to the Lenders to whom such
payment is payable.
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Section 2.
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Payment
Upon Certain Events.
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Each
Guarantor agrees that, if any of the following events occurs, i.e.,
(a)the entry of a decree or order by a
court having jurisdiction in the premises for relief in respect of such
Guarantor, or adjudging such Guarantor a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, adjustment or composition of
or in respect of such Guarantor under the Federal Bankruptcy Code or any other
applicable Federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of or
for such Guarantor or any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such decree
or order unstayed and in effect for a period of 60 consecutive days;
or
(b)the commencement by such Guarantor of a
voluntary case, or the institution by it of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization, arrangement or relief under the Federal
Bankruptcy Code or any other applicable Federal or state law, or the consent or
acquiescence by it to the filing of any such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of such Guarantor or any substantial
part of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability or its failure to
pay its debts generally as they become due, or the taking of corporate action by
such Guarantor in furtherance of any such action;
such
Guarantor will forthwith pay to the Collateral Agent (to be applied in
accordance with Section 7.5 of the Company Security Agreement), without
demand or notice and whether or not there has been any other default under any
Credit Document, all of the Guaranteed Indebtedness which is then existing,
including, without limitation, the whole amount of the principal of the Loans
then outstanding under the Credit Agreement and any unpaid interest thereon and
fees owing thereunder.
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Section 3.
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Waivers;
Obligation Unconditional.
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Each
Guarantor assents to all the terms, covenants and conditions of the Credit
Documents, and irrevocably waives presentation, demand for payment, or protest,
of any of the Guaranteed Indebtedness, any and all notice of any such
presentation, demand or protest, notice of any Default or Event of Default under
any Credit Document, notice of acceptance of this Guaranty or of the terms and
provisions thereof by any Lender or the Collateral Agent, any requirement of
diligence or promptness on the part of any Lender or the Collateral Agent in the
enforcement of rights under the provisions hereof or any Credit Document, or any
right to require any Lender or the Collateral Agent to proceed first against the
Borrower or any other Guarantor. The obligations of each Guarantor
hereunder shall be unconditional irrespective of the genuineness, validity,
regularity or enforceability of any Credit Document or of any other circumstance
which might otherwise constitute a legal or equitable discharge of a surety or
guarantor. The obligations of each Guarantor hereunder shall not be
affected by:
(a)the recovery of any judgment against
the Borrower or any other Guarantor, or by the levy of any writ or process of
execution under any such judgment, or by any action or proceeding taken by the
Collateral Agent or any Lender, under any Credit Document for the enforcement
thereof, or hereof, or in the exercise of any right or power given or conferred
thereby, or hereby, or
(b)any delay, failure or omission upon the
part of the Collateral Agent or any Lender to enforce any of the rights or
powers given or conferred hereby or by any Credit Document, or by any delay,
failure or omission upon the part of the Collateral Agent or any Lender to
enforce any right of the Collateral Agent or any Lender against the Borrower or
any other Guarantor, or by any action by the Collateral Agent or any Lender in
granting indulgence to the Borrower or any other Guarantor, or in waiving or
acquiescing in any Default or Event of Default upon the part of the Borrower or
any other Guarantor under any Credit Document, or
(c)the consolidation or merger of the
Borrower or any of its Subsidiaries with or into any other corporation or
corporations or any sale, lease or other disposition of the Borrower or any of
its Subsidiaries properties as an entirety or substantially as an entirety to
any other corporation, or
(d)the acceptance of any additional
security or other guaranty, the advance of additional money to the Borrower or
any other Person, the renewal or extension of any Guaranteed Indebtedness, or
the sale, release, substitution or exchange of any security for the Guaranteed
Indebtedness, or
(e)any defense (other than the full and
indefeasible payment and performance by the Borrower of its obligations under
the Credit Documents) whatsoever that the Borrower, any other Guarantor or any
other Person might have to the payment of any of the Guaranteed Indebtedness or
to the performance or observance of any of the provisions of any Credit
Document, whether through the satisfaction or purported satisfaction by the
Borrower, any other Guarantor or any other Person of its debts due to any cause
such as bankruptcy, insolvency, receivership, merger, consolidation,
reorganization, dissolution, liquidation, winding-up or otherwise,
or
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(f)impossibility or illegality of
performance on the part of the Borrower, any other Guarantor or any other Person
of its obligations under any Credit Document or this Guaranty, or
(g)any renewal, extension, refunding,
amendment or modification of or addition or supplement to or deletion from any
of the terms of any Credit Document, or any other agreement which may be made
relating to any such instruments which does not specifically amend or
specifically modify the terms of this Guaranty, or
(h)any amendment, compromise, release or
consent or other action or inaction in respect of any of the terms of any Credit
Document (other than any such amendment, compromise, release or consent or other
action which, by its terms, expressly modifies the terms and provisions hereof),
or
(i)any bankruptcy, insolvency,
reorganization, arrangement, adjustment, composition, liquidation, or the like
of the Borrower or any of its Subsidiaries, or
(j)absence of any notice to, or knowledge
by, such Guarantor of the existence or occurrence of any of the matters or
events set forth in the foregoing subdivisions (a) through (i), or
(k)any other act or delay or failure to
act, or by any other thing, which may or might in any manner or to any extent
vary the risk of such Guarantor hereunder;
it being
the purpose and intent of the parties hereto that the obligations of each
Guarantor hereunder shall be absolute and unconditional under any and all
circumstances, and shall not be discharged except by payment and performance as
herein provided, and then only to the extent of such payment or
performance.
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Section 4.
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Collection
Expenses.
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In the
event that any Guarantor shall be required to make any payment to the Collateral
Agent or any Lender pursuant to this Guaranty, each such Guarantor, jointly and
severally, agrees that it shall, in addition to such payment, pay to the
Collateral Agent or such Lender, as the case may be, such further amount as
shall be sufficient to cover the costs and expenses of collection, including a
reasonable compensation to attorneys, and any expenses or liabilities incurred
by the Collateral Agent or any Lender hereunder. The covenants
contained in this Guaranty may be enforced by the Collateral Agent for the
benefit of the Lenders.
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Section 5.
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No
Subrogation Until Payment in Full; Continuation of
Guaranty.
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No
payment by any Guarantor pursuant to the provisions hereof to the Collateral
Agent or any Lender shall entitle such Guarantor, by subrogation to the rights
of the Collateral Agent or the Lenders in respect of which such payment is made
or otherwise, to any payment by the Borrower or any other Guarantor or out of
the property of the Borrower or any other Guarantor, except after irrevocable
payment in full of the entire principal of and premium, if any, and interest on
the Guaranteed Indebtedness, or provision for such payment satisfactory to the
Lenders.
-5-
The
obligations of each Guarantor shall continue to be effective, or be reinstated,
as the case may be, if at any time any payment of any Guaranteed Indebtedness is
rescinded or must otherwise be restored or returned by the Collateral Agent or
any Lender upon the bankruptcy, insolvency, reorganization, arrangement,
adjustment, composition, liquidation or the like of the Borrower or any of its
Subsidiaries, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, the Borrower or
any of its Subsidiaries or any substantial part of the property thereof, or
otherwise, all as though such payments had not been made.
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Section 6.
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Representations
and Warranties.
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Each
Guarantor represents and warrants:
(a)Such Guarantor and the Borrower are
engaged in related and mutually dependent business and such Guarantor has
received a direct financial benefit from the transactions contemplated by the
Credit Agreement and the other Credit Documents; and
(b)As of the date hereof and after giving
effect to the execution and delivery of this Guaranty by such Guarantor, (a) the
aggregate value of such Guarantor, whether valued as a going concern, at fair
valuation or at its fair present salable value, exceeds the aggregate amount of
all debts and liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities) of such Guarantor, (b) such Guarantor has and shall
have sufficient assets or cash flow to pay its existing obligations and
liabilities and all other currently contemplated obligations and liabilities
when due, and (c) such Guarantor’s assets, property and capital are reasonably
adequate for the business in which such Guarantor is engaged or proposes to
engage. The obligations incurred by such Guarantor under or pursuant
to this Guaranty are not being incurred with actual intent to hinder, delay or
defraud existing or future creditors of the Borrower or such
Guarantor.
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Section 7.
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Existence.
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Each
Guarantor will do all things necessary to preserve and keep in full force and
effect its legal existence, rights and franchises; provided, however, that
nothing in this Section shall prevent the withdrawal by such Guarantor from any
State or jurisdiction of its qualification as a foreign corporation or limited
partnership, as the case may be, and its authorization to do business in such
State or jurisdiction or a consolidation or merger permitted by Section 8
hereof.
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Section 8.
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Limitation
on Consolidation, Merger, Sale, Lease or other Disposition by
Guarantors.
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No
Guarantor will consolidate with, merge into, or sell, lease or otherwise dispose
of all or substantially all its property as an entirety to, any other person or
entity (other than as permitted by Section 10.4 of the Subsidiary Security
Agreement and Section 8.13 of the Credit Agreement) unless the person or
entity (if other than such Guarantor, the Borrower or another Restricted
Subsidiary which is a party to this Guaranty) resulting from any such
consolidation or merger or to which such sale, lease or other disposition shall
have been made, shall, immediately upon such consolidation, merger, sale, lease
or other disposition,
(a)expressly assume in writing the due and
punctual performance and observance of all the terms, covenants, agreements and
conditions of this Guaranty and the Subsidiary Security Agreement and other
Credit Documents to be performed or observed by such Guarantor to the same
extent as if such successor person or entity instead of such Guarantor had been
the original party hereto and thereto; and
(b)furnish a true and complete copy of the
assumption to each Lender, together with an opinion of counsel opining favorably
as to the due authorization, execution and enforceability of the
assumption;
provided, however, that no
such merger, sale, lease or other disposition shall be permitted hereunder if in
violation of the provisions of the Credit Agreement or any other Credit
Document.
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Section 9.
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Jurisdiction
and Service in Respect of
Guarantors.
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Each
Guarantor hereby irrevocably submits to the jurisdiction of the courts of Polk
County, in the State of Iowa and of the courts of the United States of America
having jurisdiction in the State of Iowa for the purpose of any legal action or
proceeding in any such court with respect to, or arising out of, this
Agreement. Each Guarantor hereby designates and appoints A. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III,
Chief Executive Officer, World Acceptance Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and his/her successors
as such Guarantor’s lawful agent in the State of Iowa upon which process may be
served and which may accept and acknowledge, for and on behalf of such
Guarantor, all process in any action, suit or proceeding that may be brought
against such Guarantor in any of the courts referred to in this Section, and
agrees that such service of process, or the acceptance or acknowledgment thereof
by said agent, shall be valid, effective and binding in every
respect. If any Lender shall cause process to be served upon such
Guarantor by being served upon such agent, a copy of such process shall also be
mailed to CT Corporation System by United States registered mail, first class
postage prepaid, at ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
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Section 10.
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Successors
and Assigns.
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All
covenants and agreements contained in this Guaranty by or on behalf of each
Guarantor shall be binding upon such Guarantor and its successors and assigns
and shall inure to the benefit of the Collateral Agent and each and every
Lender.
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Section 11.
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Notices.
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All
notices, requests, demands, waivers or other communications required or
contemplated hereby, except as otherwise provided in Section 9 hereof, shall be
given or made as provided in the Credit Agreement.
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Section 12.
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Limitation
on Maximum Liability.
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Notwithstanding
anything in this Agreement to the contrary, the maximum liability of any
Guarantor under this Agreement shall in no event exceed such Guarantor’s Maximum
Guaranteed Amount. “Maximum
Guaranteed Amount” of any Guarantor shall mean the sum of (i) any
Valuable Transfer (as hereinafter defined), plus (to the extent not included in
(i) above) (ii) $1.00 less than the lowest amount which would render this
Agreement void or voidable under applicable law. The term “Valuable Transfer” shall
mean all proceeds of any loans made or notes issued pursuant to the Credit
Agreement which are directly or indirectly advanced by the Borrower to such
Guarantor in any form whatsoever (including, without limitation, loans, advances
or capital contributions) or used, directly or indirectly, to enable the
Borrower or such Guarantor to carry any such advance.
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Section 13.
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Governing
Law.
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This
Agreement and all Rights arising hereunder shall be construed and determined in
accordance with the laws of the State of Iowa and the performance thereof shall
be governed and enforced in accordance with such laws.
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Section 14.
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Guaranty
Supplements.
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Any
Subsidiary of the Borrower which becomes a party hereto after the date hereof
pursuant to Section 3.9 of the Company Security Agreement and a
Subordinated Guaranty Supplement (substantially in the form attached as
Exhibit A hereto) shall be bound by all of the terms and provisions of this
Agreement, and shall be a “Guarantor” for all purposes of this Agreement, the
Credit Agreement, and the other Credit Documents.
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Section 15.
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Miscellaneous.
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This
Guaranty may only be amended and/or modified by (i) a Subordinated Guaranty
Supplement pursuant to §14
or (ii) any other instrument in writing signed by the Guarantors and the
Collateral Agent. This Guaranty shall become effective upon execution
of this Guaranty by the Guarantors and the Guarantors hereby waive notice of
acceptance of this Guaranty by the Collateral Agent. This Guaranty
may be executed simultaneously in several counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same
instrument. Signature by facsimile or PDF shall bind the parties
hereto.
[Signature
Page Follows]
-9-
In
Witness Whereof, each Guarantor and Collateral Agent has caused this
Subordinated Guaranty Agreement to be duly executed as of the day and year first
above written.
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World
Acceptance Corporation of
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Alabama
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World
Acceptance Corporation of
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Missouri
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World
Finance Corporation of Georgia
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World
Finance Corporation of Louisiana
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World
Acceptance Corporation of
Oklahoma,
Inc.
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World
Finance Corporation of South
Carolina
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World
Finance Corporation of Tennessee
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WFC
of South Carolina, Inc.
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World
Finance Corporation of Illinois
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World
Finance Corporation of New
Mexico
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World
Finance Corporation of Kentucky
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World
Finance Corporation of Colorado
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World
Finance Corporation of Wisconsin
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WFC
Services, Inc.
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World
Finance Corporation of Texas
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By
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Name: A.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III
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Its: Chief
Executive Officer
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WFC
Limited Partnership
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By
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WFC
of South Carolina, Inc.,
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as
sole general partner
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By
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Name: A.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III
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Its: Chief
Executive
Officer
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[Signature
Pages to Subordinated Guaranty Agreement]
-10-
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▇▇▇▇▇
Fargo Preferred Capital, Inc.
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as
Collateral Agent
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By
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Name:
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Title:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice
President
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[Signature
Pages to Subordinated Guaranty Agreement]
-11-
Exhibit
A
Subordinated
Guaranty Supplement
To ▇▇▇▇▇
Fargo Preferred Capital, Inc., as Collateral Agent,
and the
Lenders
Ladies
and Gentlemen:
On
September 17, 2010, the Borrower entered into that certain Subordinated
Credit Agreement dated as of September 17, 2010 (the “Credit Agreement”) with
▇▇▇▇▇ Fargo Preferred Capital, Inc., as administrative agent and the other
lenders which are signatories thereto. The Borrower
also entered into that certain Second Lien Subordinated Security Agreement,
Pledge and Indenture of Trust dated as of September ___, 2010 (the “Company Security
Agreement”). As a condition to the transactions contemplated
by the Credit Agreement, the Borrower agreed that, subject to the terms and
conditions set forth in the Guaranty (as defined below), certain Restricted
Subsidiaries (as defined in the Credit Agreement) would guaranty the obligations
of (i) the Borrower under the Credit Agreement and other Credit Documents
to which it is a party and (ii) each other Restricted Subsidiary under the
Subordinated Subsidiary Security Agreement and other Credit Documents to which
they are a party, in each case, pursuant to the Subordinated Guaranty Agreement
dated as of September 17, 2010 (the “Guaranty”). In
accordance with the requirements of the Guaranty, the undersigned,
_______________, a [corporation/limited liability company/partnership] organized
under the laws of ____________ (the “Additional Guarantor”)
desires to amend the definition of Guarantor (as the same may have been
heretofore amended) set forth in the Guaranty attached hereto so that at all
times from and after the date hereof, the Additional Guarantor shall be jointly
and severally liable as set forth in the Guaranty for Guaranteed Indebtedness,
whether now existing or hereafter arising, to the extent and in the manner set
forth in the Guaranty. Unless otherwise defined herein, all
capitalized terms used herein shall have the meaning provided for in the
Guaranty.
The
undersigned is the duly elected ____________ of the Additional Guarantor, a
Restricted Subsidiary of the Borrower, and is duly authorized to execute and
deliver this Guaranty Supplement to each of you. The execution by the
undersigned of this Guaranty Supplement shall evidence his or her consent to and
acknowledgment and approval of the terms set forth herein and in the
Guaranty. The Additional Guarantor represents and warrants that the
representations and warranties set forth in Section 6 of the Guaranty as to
the Additional Guarantor are true and correct on and as of the date
hereof.
Upon
execution of this Guaranty Supplement, the Guaranty shall be deemed to be
amended as set forth above. Except as amended herein, the terms and
provisions of the Guaranty, the Credit Agreement, and the other Credit Documents
are hereby ratified, confirmed and approved in all respects.
Any and
all notices, requests, certificates and other instruments may refer to the
Guaranty and the other Credit Documents without making specific reference to
this Guaranty Supplement, but nevertheless all such references shall be deemed
to include this Guaranty Supplement unless the context shall otherwise
require.
Dated
:_________________, 20__.
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[Name
of Additional Guarantor]
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By
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Name:
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Title:
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