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EXHIBIT 8
EXECUTION COPY
LIMITED SUPPLEMENTAL GUARANTY
This LIMITED SUPPLEMENTAL GUARANTY (this "Guaranty"), dated as
of October 24, 1997, by and among PEGASUS PARTNERS, L.P., a Delaware limited
partnership, and PEGASUS RELATED PARTNERS, L.P., a Delaware limited partnership
(each individually, a "Guarantor" and together, collectively, the
"Guarantors"), and GENERAL ELECTRIC CAPITAL CORPORATION, a New York
corporation, individually and as agent (in such capacity, "Agent") for itself
and the lenders from time to time signatory to the Credit Agreement hereinafter
defined ("Lenders").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement dated as of
the date hereof by and among Code-Alarm, Inc., a Michigan corporation
("Borrower"), the other Persons signatory thereto as Credit Parties, Agent and
the Persons signatory thereto from time to time as Lenders (including all
annexes, exhibits and schedules thereto, as from time to time amended,
restated, supplemented or otherwise modified, the "Credit Agreement"), Lenders
have agreed to make Loans to, and incur Letter of Credit Obligations for the
benefit of, Borrowers.
WHEREAS, each Guarantor is a shareholder of Borrower and will,
accordingly, derive direct and indirect economic benefits from the making of
the Loans and other financial accommodations provided to Borrower pursuant to
the Credit Agreement; and
WHEREAS, in order to induce Agent and Lenders to enter into
the Credit Agreement and other Loan Documents and to induce Lenders to make the
Loans and to incur Letter of Credit Obligations as provided for in the Credit
Agreement, each Guarantor has agreed to severally and not jointly guarantee
payment of the Obligations, subject to the limitations set forth herein;
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained, and to induce Lenders to provide the Loans and
other financial accommodations under the Credit Agreement, it is agreed as
follows:
1. DEFINITIONS. Capitalized terms used herein shall
have the meanings assigned to them in the Credit Agreement, unless otherwise
defined herein.
References to this "Guaranty" shall mean this Guaranty,
including all amendments, modifications and supplements and any annexes,
exhibits and schedules to any of the foregoing, and shall refer to this
Guaranty as the same may be in effect at the time such reference becomes
operative.
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In addition, the following terms, as used herein, shall have
the meanings set forth below:
"Administrative GP" shall have the meaning ascribed to such
term in Section 3(a).
"Capital Demand Date" shall have the meaning ascribed to such
term in the Partnership Agreements as in effect from time to time.
"Capital Demand Notice(s)" shall have the meaning ascribed to
such term in the Partnership Agreements as in effect from time to time.
"Corporate GP" shall have the meaning ascribed to such term in
Section 3.
"Defaulting Limited Partner" shall have the meaning ascribed
to such term in the Partnership Agreements as in effect on the date hereof.
"Event of Dissolution" shall have the meaning ascribed to such
term in the Partnership Agreements as in effect on the date hereof and any
other "Event of Dissolution" as may be hereafter defined in the Partnership
Agreements.
"Guarantor Default" shall mean (i) any failure of either
Guarantor to pay or perform any of its obligations under this Guaranty, (ii)
any breach by either Guarantor of any representation or warranty hereunder in
any material respect, (iii) the occurrence of any insolvency event with respect
to either Guarantor under Sections 8.1(h) or 8.1(i) of the Credit Agreement,
(iv) any revocation or attempted revocation by either Guarantor of its
obligations under this Guaranty, or (v) any "Guarantor Default" shall have
occurred under and as defined in that certain Limited Litigation Guaranty of
even date herewith among the Guarantors and Agent.
"Guaranteed Obligations" shall have the meaning ascribed to
such term in Section 2.1.
"Instruction Certificate" shall mean one or more written
certificates executed by Agent and delivered to the Administrative GP and to
Guarantors stating that (i) Agent is entitled to demand payment under this
Guaranty, (ii) Agent has demanded payment under this Guaranty, (iii) the
Guarantors have failed to timely satisfy all of such payments properly
demanded, (iv) the Administrative GP is instructed to deliver a Capital Demand
Notice to each limited partner of each Guarantor specifying the earliest
possible Capital Demand Date as is permitted under Section 3.1 of the
Partnership Agreements and demanding capital contributions under such section
in amounts sufficient to permit the Guarantors to satisfy such unsatisfied
payment obligations to Agent under this Guaranty and (v) all of the proceeds of
such capital contributions received by the Administrative GP are to be promptly
sent, by wire transfer, to an account specified in such certificate for
application by Agent to such unsatisfied payment obligations.
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"Irrevocable Instruction" shall mean a document, in form and
substance acceptable to Agent, pursuant to which the Managing GP instructs the
Administrative GP, and the Administrative GP agrees, that upon the
Administrative GP's receipt of an Instruction Certificate from Agent, the
Administrative Agent shall (i) deliver a Capital Demand Notice to each limited
partner of each Guarantor, specifying the earliest Capital Demand Date as is
permitted under Section 3.1 of the Partnership Agreements and demanding capital
contributions under such section in amounts sufficient to permit the Guarantors
to satisfy the unpaid Guaranteed Obligations set forth in such Instruction
Certificate and (ii) pay all of the proceeds of such capital contributions
received by the Administrative GP to Agent on behalf of the Guarantors for
application by Agent to such Guaranteed Obligations pursuant to the
instructions specified by Agent in such Instruction Certificate. Such
Irrevocable Instruction may only be amended, terminated or modified with the
written consent of Agent, the Administrative GP and the Managing GP.
"Managing GP" shall have the meaning ascribed to such term in
Section 3.
"Partnership Agreements" shall mean the Agreement of Limited
Partnership of each Guarantor as in effect as of the date hereof and attached
hereto as Exhibit A and B, respectively, as amended or otherwise modified from
time to time hereafter.
"Ratable Share" shall mean 27.7727273% in the case of Pegasus
Partners, L.P., and 72.2272727% in the case of Pegasus Related Partners, L.P.
"Termination Date" shall have the meaning ascribed to such
term in Section 2.1.
"Trigger Event" shall mean (i) any Event of Dissolution, (ii)
the existence of any Defaulting Limited Partner and the failure of the
non-defaulting limited partners of the affected Guarantor to assume the Unpaid
Capital Obligations of such Defaulting Limited Partner within thirty days of
the default giving rise such occurrence, (iii) any Guarantor Default or (iv)
any amendment or other modification with respect to either Partnership
Agreement shall become effective and shall have a material adverse effect upon
the rights or claims of Agent and the Lenders under this Guaranty.
"Unpaid Capital Obligations" shall have the meaning ascribed
to such term in the Partnership Agreements as of the date hereof.
2. THE GUARANTY.
2.1. Guaranty of Guaranteed Obligations of Borrower.
Subject to the provisions of this Guaranty, each Guarantor hereby severally
(based upon their respective Ratable Shares and not jointly), irrevocably and
unconditionally guarantees to Agent and Lenders, and their respective
successors, endorsees, transferees and assigns, the prompt payment (whether at
stated maturity, by acceleration or otherwise) of the Obligations of Borrower
other than its
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Litigation Obligations (hereinafter the "Guaranteed Obligations"). Subject to
the provisions of this Guaranty, in the event that either Guarantor shall fail
to timely satisfy any such obligations or any other payment obligations under
this Guaranty, Agent shall be thereafter entitled, in its discretion, to
deliver one or more Instruction Certificates to the Administrative GP
requesting payment thereof pursuant to the Irrevocable Instruction. Each
Guarantor agrees that this Guaranty is a guaranty of payment and not of
collection, and that its obligations under this Guaranty shall be primary,
absolute and unconditional, irrespective of, and unaffected by:
(a) the genuineness, validity, regularity, enforceability
or any future amendment of, or change in, this Guaranty, any other Loan
Document or any other agreement, document or instrument to which any
Credit Party, either Guarantor or other Persons are or may become a party;
(b) the absence of any action to enforce this Guaranty or
any other Loan Document or the waiver or consent by Agent and/or Lenders
with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to
perfect its Lien against, any Collateral for the Guaranteed Obligations or
any action, or the absence of any action, by Agent in respect thereof;
(d) the discharge, avoidance, subordination or other
ineffectiveness of any of the Guaranteed Obligations, whether pursuant to
any insolvency proceeding or otherwise;
(e) the insolvency of any Credit Party, either Guarantor
or other Person; or
(f) any other action or circumstances which might
otherwise constitute a legal or equitable discharge or defense of a surety
or guarantor;
it being agreed by each Guarantor that its obligations under this Guaranty
shall not be discharged until the earliest date on which the Loans have been
repaid in full and all other Guaranteed Obligations under the Credit Agreement
and other Loan Documents (hereinafter, the Loan Documents") have been paid in
full and the Letter of Credit Obligations have been cash collateralized,
canceled or backed by standby letters of credit in accordance with Annex B of
the Credit Agreement, and Borrower shall have no further right to borrow any
monies or obtain additional financial accommodations under the Credit Agreement
(the "Termination Date"); provided, however, that the Termination Date may be
thereafter be deemed to have not occurred upon Guarantors' obligations under
this Guaranty being reinstated pursuant to Section 2.8 and shall be extended
until such time as the payments giving rise to such reinstatement are
thereafter again repaid to Agent and Lenders. Subject to limitations described
in Section 2.2, each Guarantor shall be regarded, and shall be in the same
position, as principal debtor with respect to
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the Guaranteed Obligations. Each Guarantor agrees that any notice or directive
given at any time to Agent which is inconsistent with this section, or Section
2.5 or 2.7, shall be null and void and may be ignored by Agent and Lenders,
and, in addition, may not be pleaded or introduced as evidence in any
litigation relating to this Guaranty for the reason that such pleading or
introduction would be at variance with the written terms of this Guaranty,
unless Agent and Lenders have specifically agreed otherwise in writing. It is
agreed among Guarantor, Agent and Lenders that the foregoing provisions, and
those of Sections 2.5 and 2.7, are of the essence of the transaction
contemplated by the Loan Documents and that, but for this Guaranty and such
waivers, Agent and Lenders would decline to enter into the Credit Agreement.
2.2. Limitations. Notwithstanding anything in Section 2.1
or elsewhere in this Guaranty to the contrary, (a) the aggregate liability of
Guarantors under this Guaranty shall, in no event, exceed, $4,000,000, plus
interest on each amount payable hereunder from the date such payment by
Guarantors hereunder is due and payable pursuant to clause (b) of this section
at a per annum rate equal to the Default Rate for Revolving Loans bearing
interest based upon the Index Rate (computed on the basis of 360 days and
actual days elapsed), until such payment is received by Agent, and plus all
costs and expenses (including, without limitation, attorneys' and paralegals'
fees and expenses) incurred by Agent following either Guarantor's failure to
timely satisfy its obligations hereunder, in connection with the enforcement
and collection of the Guarantors' obligations under this Guaranty against the
Guarantors and their respective partners and properties, (b) each payment by
Guarantors hereunder shall be due and payable on the tenth (10th) calendar day
following the date on which demand for such payment is given by Agent to
Guarantors, and (c) Agent shall not be permitted to demand payment hereunder
from Guarantors, and Guarantors shall not be liable hereunder for any such
demanded payment, unless, as of the date of such demand, (x) the Obligations
shall have been accelerated pursuant to Section 8.2 of the Credit Agreement (or
any successor provision thereto) or (y) any Event of Default shall have
occurred under Section 8.1(h) or 8.1(i) of the Credit Agreement (or any
successor provisions thereto).
2.3. Payment by Guarantor. Payment by either Guarantor
shall be made to Agent in immediately available Federal funds to an account
designated by Agent or at the address set forth herein for the giving of notice
to Agent or at any other address that may be specified in writing from time to
time by Agent, and shall be credited and applied to the Guaranteed Obligations.
2.4. Enforcement of Guaranty. In no event shall Agent
have any obligation (although it is entitled, at its option) to proceed against
Borrower, any other Credit Party, one but not the other Guarantor, or other
Person, or any Collateral before seeking satisfaction from either Guarantor.
2.5. Waiver. In addition to the provisions of Section 2.1
hereof, each Guarantor waives, and agrees that it shall not at any time insist
upon, plead or in any manner whatever claim or take the benefit or advantage
of, any appraisal, valuation, stay, extension,
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marshaling of assets or redemption laws, or exemption, whether now or at any
time hereafter in force, which may delay, prevent or otherwise affect the
performance by such Guarantor of its Guaranteed Obligations under, or the
enforcement by Agent or Lenders of, this Guaranty. Each Guarantor hereby waives
diligence, presentment and demand upon Borrower or, other than as provided in
this Guaranty, such Guarantor (whether for non-payment or protest or of
acceptance, maturity, extension of time, change in nature or form of the
Guaranteed Obligations, acceptance of further security, release of further
security, composition or agreement arrived at as to the amount of, or the terms
of, the Guaranteed Obligations, notice of adverse change in Borrower's
financial condition or any other fact which might increase the risk to such
Guarantor) with respect to any of the Guaranteed Obligations or all other
demands whatsoever and waive the benefit of all provisions of law which are or
might be in conflict with the terms of this Guaranty. Each Guarantor
represents, warrants and agrees that, as of the date of this Guaranty, its
obligations under this Guaranty are not subject to any offsets or defenses
against Agent or Lenders or any other Credit Party of any kind. Each Guarantor
further agrees that its obligations under this Guaranty shall not be subject to
any counterclaims (other than compulsory counterclaims), offsets or defenses
against Agent or any Lender or against any other Credit Party of any kind which
may arise in the future.
2.6. Benefit of Guaranty. The provisions of this Guaranty
are for the benefit of Agent and Lenders and their respective successors,
transferees, endorsees and assigns, and nothing herein contained shall impair,
as between any Credit Party, either Guarantor or other Person and Agent or
Lenders, the obligations of any Credit Party, either Guarantor or other Person
under the Loan Documents. In the event all or any part of the Guaranteed
Obligations are transferred, indorsed or assigned by Agent or any Lender to any
Person or Persons, any reference to "Agent" or "Lender" herein shall be deemed
to refer equally to such Person or Persons.
2.7. Modification of Guaranteed Obligations, Etc. Each
Guarantor hereby acknowledges and agrees that Agent and Lenders may at any time
or from time to time, with or without the consent of, or notice to, such
Guarantor:
(a) change or extend the manner, place or terms of
payment of, or renew or alter all or any portion of, the Guaranteed
Obligations;
(b) take any action under or in respect of the Loan
Documents in the exercise of any remedy, power or privilege contained
therein or available to it at law, equity or otherwise, or waive or
refrain from exercising any such remedies, powers or privileges;
(c) amend or modify, in any manner whatsoever, the Loan
Documents;
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(d) extend or waive the time for any Credit Party's or
other Person's performance of, or compliance with, any term, covenant or
agreement on its part to be performed or observed under the Loan
Documents, or waive such performance or compliance or consent to a
failure of, or departure from, such performance or compliance;
(e) take and hold Collateral for the payment of the
Guaranteed Obligations guaranteed hereby or sell, exchange, release,
dispose of, or otherwise deal with, any property pledged, mortgaged or
conveyed, or in which Agent or Lenders have been granted a Lien, to
secure any Guaranteed Obligations;
(f) release anyone who may be liable in any manner for
the payment of any amounts owed by either Guarantor or any other Credit
Party or other Person to Agent or any Lender;
(g) modify or terminate the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of
either Guarantor or any other Credit Party or other Person are
subordinated to the claims of Agent and Lenders; and/or
(h) apply any sums by whomever paid or however realized
to any amounts owing by either Guarantor or any other Credit Party or
other Person to Agent or any Lender in such manner as Agent or any
Lender shall determine in its discretion;
and Agent and Lenders shall not incur any liability to Guarantors as a result
thereof, and no such action shall impair or release the Guaranteed Obligations
of Guarantors under this Guaranty.
2.8. Reinstatement. This Guaranty shall remain in full
force and effect and continue to be effective should any petition be filed by
or against any Credit Party, either Guarantor or any other Person for
liquidation or reorganization, should any Credit Party, either Guarantor or any
other Person become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of such Credit Party's, Guarantor's or other Person's assets,
and shall continue to be effective or be reinstated, as the case may be, if at
any time payment and performance of the Guaranteed Obligations or the
obligations of either Guarantor under this Guaranty, or any part of any such
obligations, is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by Agent or any Lender pursuant to
applicable law, whether as a "voidable preference", "fraudulent conveyance", or
otherwise, all as though such payment or performance had not been made. In the
event that any such payment, or any part thereof, is rescinded, reduced,
restored or returned, the Guaranteed Obligations and obligations of the
Guarantors under this Guaranty shall be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned. In the
event any such payment is rescinded, reduced, restored or returned after what
otherwise would be the Termination Date pursuant to the provisions of Section
2.1, the Termination Date shall thereupon be deemed to have not occurred and
shall be extended until such time as such payment is thereafter again repaid to
Agent and Lenders.
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2.9. Deferral of Subrogation, Etc. Notwithstanding
anything to the contrary in this Guaranty, or in any other Loan Document, each
Guarantor hereby:
(a) expressly and irrevocably waives, on behalf of itself
and its successors and assigns (including any surety), until the later of the
Termination Date or the "Termination Date" under and as defined in that certain
Limited Litigation Guaranty of even date herewith executed and delivered by the
Guarantors in favor of Agent and Lenders, any and all rights at law or in
equity to subrogation, to reimbursement, to exoneration, to contribution, to
indemnification, to set off or to any other rights that could accrue to a
surety against a principal, to a guarantor against a principal, to a guarantor
against a maker or obligor, to an accommodation party against the party
accommodated, to a holder or transferee against a maker, or to the holder of
any claim against any Person, and which such Guarantor may have or hereafter
acquire against any Credit Party, the other Guarantor or any other Person in
connection with or as a result of such Guarantor's execution, delivery and/or
performance of this Guaranty; and
(b) acknowledges and agrees (i) that this waiver is
intended to benefit Agent and Lenders and shall not limit or otherwise effect
such Guarantor's liability hereunder or the enforceability of this Guaranty,
and (ii) that Agent, Lenders and their respective successors and assigns are
intended third party beneficiaries of the waivers and agreements set forth in
this Section 2.9 and their rights under this Section 2.9 shall survive payment
in full of the Guaranteed Obligations.
2.10. Election of Remedies. If Agent may, under
applicable law, proceed to realize benefits under any of the Loan Documents
giving Agent and Lenders a Lien upon any Collateral owned by any Credit Party
or other Person, either by judicial foreclosure or by non-judicial sale or
enforcement, Agent may, at its sole option, determine which of such remedies or
rights it may pursue without affecting any of such rights and remedies under
this Guaranty. If, in the exercise of any of its rights and remedies, Agent
shall forfeit any of its rights or remedies, including its right to enter a
deficiency judgment against any Credit Party or other Person, whether because
of any applicable laws pertaining to "election of remedies" or the like, each
Guarantor hereby consents to such action by Agent and waives any claim based
upon such action, even if such action by Agent shall result in a full or
partial loss of any rights of subrogation which either Guarantor might
otherwise have had but for such action by Agent. Any election of remedies
which results in the denial or impairment of the right of Agent to seek a
deficiency judgment against any Credit Party or other Person shall not impair
either Guarantor's obligation to pay the Guaranteed Obligations hereunder. In
the event Agent shall bid at any foreclosure or trustee's sale or at any
private sale permitted by law or the Loan Documents, Agent may bid all or less
than the amount of the Guaranteed Obligations and the amount of such bid need
not be paid by Agent but shall be credited against the Guaranteed Obligations.
The amount of the successful bid at any such sale shall be conclusively deemed
to be the fair market value of the collateral and the difference between such
bid amount and the remaining balance of the Guaranteed Obligations shall be
conclusively deemed to be the amount of the Guaranteed Obligations guaranteed
under this Guaranty, notwithstanding that any present or future law or court
decision or ruling may have
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the effect of reducing the amount of any deficiency claim to which Agent and
Lenders might otherwise be entitled but for such bidding at any such sale.
3. DELIVERIES. In a form, scope and substance
satisfactory to Agent, the Guarantors shall deliver or cause to be delivered to
Agent, concurrently with the execution of this Guaranty and the Credit
Agreement, each of the following in connection with this Guaranty:
(a) a certificate of the corporate secretary of Pegasus
Investors GP, Inc., a Delaware corporation ("Corporate GP"), as general
partner of Pegasus Investors, L.P., a Delaware limited partnership and the
managing general partner of each Guarantor (the "Managing GP"), certifying
(i) that attached thereto are true, correct and current copies of the
Partnership Agreements, the agreement of limited partnership of the
Managing GP and the certificate of incorporation and bylaws of the
Corporate GP (in each case, including any and all signatures, exhibits,
schedules, annexes and amendments thereto), as applicable; (ii) that the
execution, delivery and performance of this Guaranty and all other
agreements, documents and instruments executed and delivered in connection
herewith by the Guarantors, the Managing GP or the Corporate GP,
respectively, by or on behalf of the Guarantors (or either one of them)
(A) are within the partnership or corporate power (as applicable) of such
Person, (B) have been duly authorized by all necessary and proper
partnership, corporate, company, partner, shareholder or member action (as
applicable) of such Persons, (C) do not contravene any provision of such
Person's partnership agreement, certificate of incorporation or bylaws, (D)
do not violate any law or regulation, or any order or decree of any court
or Governmental Authority applicable to such Person, (E) do not conflict
with or result in the breach or termination of, constitute a default under
or accelerate or permit the acceleration of any performance required by,
any indenture, mortgage, deed of trust, lease, agreement or other
instrument to which such Person is a party or by which such Person or any
of its property is bound, (F) do not result in the creation or imposition
of any Lien upon any of the property of such Person other than those in
favor of Agent, on behalf of itself and Lenders, pursuant to this Guaranty,
(G) do not require the consent or approval of any Governmental Authority or
any other Person, except as has been previously obtained and (H) do not
result in an Event of Dissolution or any Trigger Event; (iii) that attached
thereto are true, correct and current copies of all partnership, corporate
and company resolutions and other authorizations of the limited partnership
panel, board of directors, management committee or other managing bodies of
the Guarantors, the Managing GP and the Corporate GP which were adopted and
approved in connection with, and necessary to permit, the execution,
delivery and performance of this Guaranty by of on behalf of either of the
Guarantors and all other agreements, documents and instruments executed and
delivered by or on behalf of either of the Guarantors in connection
herewith; (iv) the incumbency and true or facsimile signatures of all
officers of the Corporate GP on behalf of the Managing GP and the
Guarantors which will or have executed and delivered this Guaranty or any
other agreements, documents or instruments executed and delivered by or in
behalf of either of
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the Guarantors in connection herewith and (v) that no Event of Dissolution
or other Trigger Event has occurred and is continuing;
(b) certificates of limited partnership of each Guarantor and the
Managing GP, and a certificate of incorporation of the Corporate GP, in
each case certified as of a date no earlier than thirty (30) days prior to
the date hereof by the Secretary of State of Delaware together with good
standing certificates of such Person from the Secretary of State of
Delaware; and
(c) an opinion of counsel to the Guarantors, the Managing GP and
the Corporate GP, favorably addressing, as a matter of Delaware partnership
and corporate law and New York law, as applicable, (i) the organization,
existence and good standing in the jurisdiction of organization and
principal place of business, of each of such Persons, (ii) each of the
matters described in clauses (A), (B), (C), (D) and (G) of Section 3(a)(ii)
hereof and (iii) the enforceability of the provisions of this Guaranty
against the Guarantors.
In a form, scope and substance satisfactory to Agent, the
Guarantors shall deliver or cause to be delivered, to Agent (or to the extent
the items described below are to be executed or delivered by the Administrative
GP, its officers, directors or attorneys, the Guarantors shall exert their
reasonable commercial efforts to deliver or cause to be delivered to Agent), as
soon as practicable following the execution of this Guaranty, the Credit
Agreement and the L/C Agreement, each of the following:
(i) the Irrevocable Instruction;
(ii) a certificate of the corporate secretary of the
Corporate GP, as general partner of the Managing GP, addressing each of the
matters set forth in clause (a), to the extent they pertain to the
Irrevocable Instruction;
(iii) a certificate of the company secretary (or other
equivalent) of Pegasus Administration Limited, a Cayman Islands limited
duration company and the administrative general partner of each Guarantor
(the "Administrative GP"), certifying (A) that attached thereto are true,
correct and current copies of the charter and bylaws of the Administrative
GP (including any and all signatures, exhibits, schedules, annexes and
amendments thereto); (B) that the execution, delivery and performance of
the Irrevocable Instruction and all other agreements, documents and
instruments executed and delivered in connection therewith by the
Administrative GP, (1) are within the company power of the Administrative
GP, (2) have been duly authorized by all necessary and proper company
action of the Administrative GP, (3) do not contravene any provisions of
the Administrative GP's charter or bylaws, (4) do not violate any law or
regulation, or any order or decree of any court or Governmental Authority
applicable to the Administrative Agent, and (5) do not require the consent
or approval of any Governmental Authority or
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any other person, except as has been previously obtained, (C) that attached
thereto are true, correct and current copies of all company resolutions and
other authorizations of the board of directors or other managing body of
the Administrative GP which were adopted and approved in connection with,
and necessary to permit, the execution, delivery and performance of the
Irrevocable Instruction on behalf of the Administrative GP and all other
agreements, documents and instruments executed and delivered by the
Administrative GP and (D) the incumbency and true or facsimile signatures
of all officers of the Administrative GP which will or have executed and
delivered the Irrevocable Instruction or any other agreements, documents or
instruments executed and delivered by the Administrative GP in connection
therewith;
(iv) certificates of existence and good standing with respect to
the Administrative GP certified by the Cayman Islands (or appropriate
agency thereof) as of a date no earlier than thirty (30) days prior to the
date on which the Irrevocable Instruction is executed and delivered; and
(v) an opinion of counsel to the Administrative GP, favorably
addressing, as a matter of the laws of the Cayman Islands, (A) the
organization, existence and good standing in the jurisdiction of
organization and principal place of business of the Administrative GP, (B)
each of the matters described in clause (iii)(B) above, (C) the
enforceability of the provisions of the Irrecovable Instruction against the
Administrative GP and (D) the irrevocability of the Irrecovable
Instruction.
4. REPRESENTATIONS AND WARRANTIES. To induce Lenders to
make the Loans and incur Letter of Credit Obligations under the Credit
Agreement, each Guarantor makes the following representations and warranties to
Agent and each Lender, all of which shall survive the execution and delivery of
this Guaranty:
4.1. Corporate Existence; Corporate Power; Compliance with
Law. Each of the statements contained in the certificates described in Section
3(a)(ii) and 3(a)(v) hereof are true, accurate and complete. Each Guarantor is
in compliance with all applicable provisions of law, except where the failure
to comply, individually or in the aggregate, could not reasonably be expected
to have a material adverse effect upon such Guarantor, its properties or its
ability to perform its obligations hereunder.
4.2. Enforceable Guaranteed Obligations. This Guaranty
constitutes the legal, valid and binding obligation of each Guarantor,
enforceable against such Guarantor in accordance with its terms.
4.3. Trigger Event. As of the date hereof, no Trigger
Event has occurred and is continuing.
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5. FURTHER ASSURANCES. Guarantor agrees, upon the
written request of Agent, to execute and deliver to Agent or such Lender, from
time to time, any additional instruments or documents reasonably considered
necessary by Agent to cause this Guaranty to be, become or remain valid and
effective in accordance with its terms.
6. CASH COLLATERAL. Upon the occurrence of one or more
Trigger Events, the Guarantors shall promptly deliver to Agent, $4,000,000 in
cash or other immediately available funds, as cash collateral for the
Guaranteed Obligations and Guarantors' payment and performance obligations
under this Guaranty. Such funds shall be held by Agent in a cash collateral
account (the "Cash Collateral Account") maintained at a bank or financial
institution acceptable to Agent and shall be invested (for the account of the
Guarantors) in short term, highly rated securities or interest bearing
accounts, in a manner acceptable to Agent. The Cash Collateral Account shall
be in the name of Guarantors and shall be pledged to, and subject to the
control of, Agent, for the benefit of Agent and Lenders, in a manner
satisfactory to Agent. Each Guarantor hereby pledges and grants to Agent, on
behalf of Lenders, a security interest in all such funds held in the Cash
Collateral Account from time to time and all proceeds thereof, as security for
the payment of the Guaranteed Obligations and Guarantors' payment and
performance obligations under this Guaranty, whether or not then due. From
time to time after the occurrence and during the continuation of any Guarantor
Default, Agent may apply any and all funds held in the Cash Collateral Account
to the payment of the Guaranteed Obligations and Guarantors' payment and
performance obligations under this Guaranty. Neither Guarantor nor any Person
claiming on behalf of or through either Guarantor shall have any right to
withdraw any of the funds held in the Cash Collateral Account until the
ninety-first (91st) day following the Termination Date.
7. REPORTING. Each Guarantor shall deliver or cause to
be delivered to Agent, the following:
(a) at the same times as are delivered or required to be
delivered to each partner of the Guarantors pursuant to Section 8.2 (or any
successor provision thereto) of the Partnership Agreements, each of the
reports, statements, financial statements, schedules, summaries and other
information described in such section (and without giving effect to any
amendments or modifications thereto), excluding, however, any items delivered
pursuant to Section 8.2(d) thereof and the Schedule K-1's referred to in
Section 8.2(b) thereof; and
(b) promptly, following its occurrence, the existence and
nature of any Trigger Event.
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8. OTHER TERMS.
8.1. Entire Agreement. This Guaranty constitutes the
entire agreement among the parties with respect to the subject matter hereof
and supersedes all prior agreements relating to a guaranty of the loans and
advances under the Loan Documents and/or the Guaranteed Obligations.
8.2. Headings. The headings in this Guaranty are for
convenience of reference only and are not part of the substance of this
Guaranty.
8.3. Severability. Whenever possible, each provision of
this Guaranty shall be interpreted in such a manner to be effective and valid
under applicable law, but if any provision of this Guaranty shall be prohibited
by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Guaranty.
8.4. Notices. Whenever it is provided herein that any
notice, demand, request, consent, approval, declaration or other communication
shall or may be given to or served upon any of the parties by any other party,
or whenever any of the parties desires to give or serve upon another any such
communication with respect to this Guaranty, each such notice, demand, request,
consent, approval, declaration or other communication shall be in writing and
shall be addressed to the party to be notified as follows:
(a) If to Agent, at:
General Electric Capital Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Account Manager
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: H. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
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and:
General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to any Lender, at the address of such Lender
specified in the Credit Agreement.
(c) If to either Guarantor, at the address of Guarantors
specified on Schedule I hereto.
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been validly served, given or delivered (i) upon the earlier of actual
receipt and three (3) Business Days after the same shall have been deposited
with the United States mail, registered or certified mail, return receipt
requested, with proper postage prepaid, (ii) upon transmission, when sent by
telecopy or other similar facsimile transmission (with such telecopy or
facsimile promptly confirmed by delivery of a copy by personal delivery or
United States mail as otherwise provided in this Section 9.4), (iii) one (1)
Business Day after deposit with a reputable overnight carrier with all charges
prepaid, or (iv) when delivered, if hand-delivered by messenger. Failure or
delay in delivering copies of any notice, demand, request, consent, approval,
declaration or other communication to any of the above-listed persons
designated to receive copies shall in no way adversely affect the effectiveness
of such notice, demand, request, consent, approval, declaration or other
communication.
8.5. Successors and Assigns. This Guaranty and all
obligations of each Guarantor hereunder shall be binding upon the successors
and assigns of such Guarantor (including a debtor-in-possession on behalf of
such Guarantor) and shall, together with the rights and remedies of Agent, for
itself and for the benefit of Lenders, hereunder, inure to the benefit of Agent
and Lenders, all future holders of any instrument evidencing any of the
Guaranteed Obligations and their respective successors and assigns. No sales
of participations, other sales, assignments, transfers or other dispositions of
any agreement governing or instrument evidencing the Guaranteed Obligations or
any portion thereof or interest therein shall in any manner affect the rights
of Agent and Lenders hereunder. Neither Guarantor may assign, sell,
hypothecate or otherwise transfer any interest in or obligation under this
Guaranty.
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8.6. No Waiver; Cumulative Remedies; Amendments. Neither
Agent nor any Lender shall by any act, delay, omission or otherwise be deemed
to have waived any of its rights or remedies hereunder, and no waiver shall be
valid unless in writing, signed by Agent and then only to the extent therein
set forth. A waiver by Agent, for itself and the ratable benefit of Lenders,
of any right or remedy hereunder on any one occasion shall not be construed as
a bar to any right or remedy which Agent would otherwise have had on any future
occasion. No failure to exercise nor any delay in exercising on the part of
Agent or any Lender, any right, power or privilege hereunder, shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege hereunder preclude any other or future exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
hereunder provided are cumulative and may be exercised singly or concurrently,
and are not exclusive of any rights and remedies provided by law. None of the
terms or provisions of this Guaranty may be waived, altered, modified,
supplemented or amended except by an instrument in writing, duly executed by
Agent and Guarantors.
8.7. Termination. This Guaranty is a continuing guaranty
and shall remain in full force and effect until the Termination Date. On or
after the Termination Date, Agent shall deliver to Guarantor such documents as
Guarantor may reasonably request to evidence such termination.
8.8. Counterparts. This Guaranty may be executed in any
number of counterparts, each of which shall collectively and separately
constitute one and the same agreement.
8.9. GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE.
THIS GUARANTY AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, AND ANY APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA. GUARANTOR HEREBY CONSENTS AND AGREES
THAT THE STATE OR FEDERAL COURTS LOCATED NEW YORK COUNTY, NEW YORK SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR
AMONG GUARANTORS, AGENT OR ANY LENDER PERTAINING TO THIS GUARANTY OR TO ANY
MATTER ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OF THE OTHER LOAN
DOCUMENTS, PROVIDED, THAT AGENT AND GUARANTORS ACKNOWLEDGE THAT ANY APPEALS
FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK
COUNTY, NEW YORK AND, PROVIDED, FURTHER, THAT NOTHING IN THIS GUARANTY SHALL BE
DEEMED OR OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL
ACTION IN ANY OTHER JURISDICTION TO REALIZE ON PAYMENT CLAIMS OR ANY OTHER
SECURITY FOR THE GUARANTEED OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN
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FAVOR OF AGENT, FOR THE BENEFIT OF AGENT AND LENDERS. EACH GUARANTOR EXPRESSLY
SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT
COMMENCED IN ANY SUCH COURT, AND EACH GUARANTOR HEREBY WAIVES ANY OBJECTION
WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR
FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH GUARANTOR HEREBY
WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN
ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND
OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH
GUARANTOR AT THE ADDRESS SET FORTH ON SCHEDULE I HERETO AND THAT SERVICE SO
MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR
THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID.
8.10. WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND
ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH
APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES),
GUARANTORS AND AGENT DESIRE THAT DISPUTES ARISING HEREUNDER OR RELATING HERETO
BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE
THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OR ARBITRATION,
GUARANTORS AND AGENT WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT,
OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED IN CONNECTION WITH THIS GUARANTY AND THE OTHER LOAN
DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO.
8.11 Confidentiality. Agent agrees to use commercially
reasonable efforts (equivalent to the efforts Agent applies to maintaining the
confidentiality of its own confidential information) to maintain as
confidential the existence, terms and conditions of this Guaranty, and all
information received by Agent with respect to the Guarantors pursuant to this
Guaranty, except that, subject to the terms and provisions of that certain
letter agreement dated as of October 27, 1997 among GE Capital and the
Guarantors regarding certain information about the limited partners of the
Guarantors, Agent may disclose such information (a) to Persons employed or
engaged by Agent in evaluating, approving, structuring or administering the
Loan Documents and related Obligations and Commitments; (b) to any Lender or
bona fide assignee or participant or potential assignee or participant of a
Lender (or successor Agent or prospective successor Agent) that has agreed in
writing to comply with the covenant contained in this Section 8.11 (and
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any such Lender, bona fide assignee or participant or potential assignee or
participant or Agent or prospective successor Agent may disclose such
information to Persons employed or engaged by them as described in clause (a)
above), which writing has been delivered to the Guarantors; (c) as required or
requested by any Governmental Authority or reasonably believed by Agent to be
compelled by any court decree, subpoena or legal or administrative order or
process; (d) as, in the opinion of Agent's counsel, required by law; (e) in
connection with the exercise of any right or remedy under the Loan Documents or
in connection with any litigation to which Agent is a party; or (f) which
ceases to be confidential through no fault of Agent; provided, however, that
Agent shall use its best efforts to give Guarantors as much advance notice of
the proposed disclosure as is reasonably possible under the circumstances and;
provided, further, however, that, the failure by Agent, any Lender, any
assignee, participant or prospective participant to comply with the terms of
this Section 8.11 shall not operate as a defense, or give rise to any setoff
claims, with respect to any obligation of either Guarantor under this Guaranty.
8.12 Notification to Limited Partners. The Guarantors
shall notify each of their respective limited partners of the existence and
general terms and conditions of this Guaranty along with the next quarterly
financial report which is delivered to such limited partners after the date
hereof pursuant to Section 8.2 of its Partnership Agreements.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Guaranty as of the date first above written.
PEGASUS PARTNERS, L.P.
By: PEGASUS INVESTORS, L.P.,
as Managing General Partner
By: PEGASUS INVESTORS GP, INC.,
as General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------
Title: Vice President
-------------------
and
PEGASUS RELATED PARTNERS, L.P.
By: PEGASUS INVESTORS, L.P.,
as Managing General Partner
By: PEGASUS INVESTORS GP, INC.,
as General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------
Title: Vice President
------------------
Agreed and Accepted as of this
24th day of October, 1997:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇
--------------------
Title: Duly Authorized Signatory
---------------------------
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SCHEDULE I
Addresses for Notices:
Pegasus Partners, L.P. Pegasus Related Partners, L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Cos ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇