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EXHIBIT 10(s)(ii)
UNCONDITIONAL GUARANTY AGREEMENT
THIS UNCONDITIONAL GUARANTY AGREEMENT (this "Guaranty"), dated as of
November 15, 1996 made by LCI INTERNATIONAL, INC., a Delaware corporation (the
"Guarantor"), in favor of NATIONSBANK OF TEXAS, N.A., as Agent for the ratable
benefit of the Tranche A Lenders party to the Participation Agreement dated
November 15, 1996 among the Guarantor, as Lessee and Construction Agent; First
Security Bank, National Association, in its capacity as Owner Trustee under the
Stuart Park Trust, as Owner Trustee, Borrower, and Lessor; the various Lenders
from time to time party thereto; the various Holders from time to time party
thereto; and NationsBank of Texas, N.A., in its capacity as agent for the
Lenders, as agent (as amended or modified, the "Participation Agreement").
STATEMENT OF PURPOSE
Pursuant to the terms of the Participation Agreement and the other
Operative Agreements, the Tranche A Lenders, inter alia, have agreed to extend
certain credit facilities to the Borrower in the aggregate principal amount of
up to the aggregate Tranche A Commitments under the Credit Agreement.
The proceeds of the credit facilities being extended by the Tranche A
Lenders to the Borrower are being used by the Borrower to construct the
Property, which Property shall be leased by the Borrower to the Guarantor
pursuant to the terms of the Lease Agreement and the other Operative
Agreements. Therefore, the extension of credit by the Tranche A Lenders to the
Borrower will inure to the benefit of the Guarantor, directly or indirectly, as
more particularly set forth in the Operative Agreements.
In connection with the transactions contemplated by the Participation
Agreement and the other Operative Agreements and as a condition precedent to
the extension by the Tranche A Lenders of the Tranche A Loans, the Tranche A
Lenders have requested, and the Guarantor has agreed to execute and deliver,
this Guaranty.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, and to induce the Tranche A Lenders to make available Tranche
A Loans pursuant to the
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Participation Agreement and the other Operative Agreements, it is agreed as
follows:
Definitions. Capitalized terms used herein (including the preamble
hereof) shall have the meanings assigned to them in the Participation
Agreement, unless the context otherwise requires or unless otherwise defined
herein. References in the Operative Agreements or any of them to the
"Guaranty" or herein to this "Guaranty" shall include and mean this Guaranty,
including all amendments and supplements hereto now or hereafter in effect.
Guaranty of Obligations of Borrower Relating to Tranche A Loans. The
Guarantor hereby unconditionally guarantees to the Agent for the ratable
benefit of the Tranche A Lenders, and their respective successors, endorsees,
transferees and assigns, the prompt payment (whether at stated maturity, by
acceleration or otherwise) and performance of all Obligations of the Borrower
relating to or in any way arising from, out of or in connection with the
Tranche A Loans, whether primary or secondary (whether by way of endorsement or
otherwise), whether now existing or hereafter arising, whether or not from time
to time reduced or extinguished (except by payment thereof) or hereafter
increased or incurred, whether or not recovery may be or hereafter become
barred by the statute of limitations, whether enforceable or unenforceable as
against the Borrower, whether or not discharged, stayed or otherwise affected
by any bankruptcy, insolvency or other similar law or proceeding, whether
created directly with any Tranche A Lender or acquired by any Tranche A Lender
through assignment, endorsement or otherwise, whether matured or unmatured,
whether joint or several, as and when the same become due and payable (whether
at maturity or earlier, by reason of acceleration, mandatory repayment or
otherwise), in accordance with the terms of any such instruments evidencing any
such obligations, including all renewals, extensions or modifications thereof
(all Obligations of the Borrower to any Tranche A Lender relating to or in any
way arising from, out of or in connection with the Tranche A Loans, including
all of the foregoing, being hereinafter collectively referred to as the
"Guaranteed Obligations"); provided, that notwithstanding anything to the
contrary contained herein, it is the intention of the Guarantor and the Tranche
A Lenders that the amount of the Guarantor's
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obligations with respect to the Guaranteed Obligations shall be in, but notin
excess of, the maximum amount thereof not subject to avoidance or recovery by
operation of applicable law governing bankruptcy, reorganization, arrangement,
adjustment of debts, relief of debtors, dissolution, insolvency, fraudulent
transfers or conveyances or other similar laws (including, without limitation,
11 U.S.C. Section 547, Section 548, Section 550 and other "avoidance"
provisions of Title 11 of the United States Code) applicable at any time to the
Guarantor and this Guaranty (collectively, "Applicable Insolvency Laws"). To
that end, but only in the event and to the extent that the Guarantor's
obligations with respect to the Guaranteed Obligations or any payment made
pursuant to the Guaranteed Obligations would, but for the operation of the
foregoing proviso, be subject to avoidance or recovery under Applicable
Insolvency Laws, the amount of the Guarantor's obligations with respect to the
Guaranteed Obligations shall be limited to the largest amount which, after
giving effect thereto, would not, under Applicable Insolvency Laws, render the
Guarantor's obligations with respect to such Guaranteed Obligations
unenforceable or avoidable or otherwise subject to recovery under Applicable
Insolvency Laws. To the extent any payment actually made pursuant to the
Guaranteed Obligations exceeds the limitation of the foregoing proviso, then
the amount of such excess shall, from and after the time of payment by
Guarantor, be reimbursed by the Tranche A Lenders upon demand by Guarantor.
The foregoing proviso is intended solely to preserve the rights of the Agent
for the benefit of the Tranche A Lenders hereunder against the Guarantor to the
maximum extent permitted by Applicable Insolvency Laws and neither the Borrower
or any other Guarantor under the Operative Agreements nor any other Person
shall have any right or claim under such proviso that would not otherwise be
available under Applicable Insolvency Laws.
Nature of Guaranty. The Guarantor agrees that this Guaranty is a
continuing, irrevocable, unconditional guaranty of payment and performance and
not of collection, and that its obligations under this Guaranty shall be
primary, absolute and unconditional, irrespective of, and unaffected by:
the genuineness, validity, regularity, enforceability or any future
amendment of, or change in, the
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Participation Agreement or any other Operative Agreement or any other
agreement, document or instrument to which the Borrower is or may become a
party;
the absence of any action to enforce this Guaranty, the
Participation Agreement or any other Operative Agreement or the waiver or
consent by the Agent or any Tranche A Lender with respect to any of the
provisions of this Guaranty, the Participation Agreement or any other
Operative Agreement;
the existence, value or condition of, or failure to perfect its Lien
against, any security for or other guaranty of the Guaranteed Obligations
or any action, or the absence of any action, by the Agent or any Tranche
A Lender in respect of such security or guaranty (including, without
limitation, the release of any such security or guaranty); or
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 the Guarantor that, subject to the proviso in Section 2
hereof, its obligations under this Guaranty shall not be discharged until the
final and indefeasible payment and performance, in full, of the Guaranteed
Obligations. The Guarantor expressly waives all rights it may now or in the
future have under any statute (including without limitation North Carolina
General Statutes Section 26-7 et seq., or similar law), or at law or in equity,
or otherwise, to compel the Agent or any Tranche A Lender to proceed in respect
of the Guaranteed Obligations against the Borrower or any other party or
against any security for or other guaranty of the payment and performance of
the Guaranteed Obligations before proceeding against, or as a condition to
proceeding against, the Guarantor. The Guarantor further expressly waives and
agrees not to assert or take advantage of any defense based upon the failure of
the Agent or any Tranche A Lender to commence an action in respect of the
Guaranteed Obligations against the Borrower, the Guarantor or any other party
or any security for the payment and performance of the Guaranteed Obligations.
The Guarantor agrees that any notice or directive
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given at any time to the Agent or any Tranche A Lender which is inconsistent
with the waivers in the preceding two sentences shall be null and void and may
be ignored by the Agent or such Tranche A Lender, 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 the Agent and the Majority Lenders (as
determined with respect to Tranche A Loans only) have specifically agreed
otherwise in writing. The foregoing waivers are of the essence of the
transaction contemplated by the Operative Agreements and, but for this Guaranty
and such waivers, the Agent and Tranche A Lenders would decline to enter into
the Operative Agreements.
Demand by the Agent. In addition to the terms set forth in Section 3, and
in no manner imposing any limitation on such terms, if all or any portion of
the then outstanding Guaranteed Obligations under the Participation Agreement
and the other Operative Agreements are declared to be immediately due and
payable, then the Guarantor shall, upon demand in writing therefor by the Agent
to the Guarantor, pay all or such portion of the outstanding Guaranteed
Obligations (subject to the proviso in Section 2 hereof) then declared due and
payable. Payment by the Guarantor shall be made to the Agent, to be credited
and applied upon the Guaranteed Obligations, in immediately available federal
funds to an account designated by the Agent or at the address referenced herein
for the giving of notice to the Agent or at any other address that may be
specified in writing from time to time by the Agent.
Waivers. In addition to the waivers contained in Section 3, the 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, marshalling 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 the Guarantor of its obligations
under, or the enforcement by the Agent or the Tranche A Lenders of, this
Guaranty. The Guarantor further hereby waives diligence, presentment, demand,
protest and notice of whatever kind or nature with respect to any of the
Guaranteed
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Obligations and waives the benefit of all provisions of law which are or might
be in conflict with the terms of this Guaranty. The Guarantor represents,
warrants and agrees that its obligations under this Guaranty are not and shall
not be subject to any counterclaims, offsets or defenses of any kind against
the Agent, the Tranche A Lenders or the Borrower whether now existing or which
may arise in the future.
Benefits of Guaranty. The provisions of this Guaranty are for the benefit
of the Agent and the Tranche A Lenders and their respective successors,
transferees, endorsees and assigns, and nothing herein contained shall impair,
as between the Borrower, the Agent and the Tranche A Lenders, the obligations
of the Borrower under the Operative Agreements. In the event all or any part
of the Guaranteed Obligations are transferred, endorsed or assigned by the
Agent or the Tranche A Lender to any Person or Persons, any reference to the
"Agent" or the "Tranche A Lenders" herein shall be deemed to refer equally to
such Person or Persons.
Modification of Loan Documents etc. If the Agent or the Tranche A Lenders
shall at any time or from time to time, with or without the consent of, or
notice to, the Guarantor:
change or extend the manner, place or terms of payment of, or renew
or alter all or any portion of, the Guaranteed Obligations;
take any action under or in respect of the Operative Agreements in
the exercise of any remedy, power or privilege contained therein or
available to it at law, in equity or otherwise, or waive or refrain from
exercising any such remedies, powers or privileges;
amend or modify, in any manner whatsoever, the Operative Agreements;
extend or waive the time for performance by the Guarantor, the
Borrower or any other Person of, or compliance with, any term, covenant
or agreement on its part to be performed or observed under an Operative
Agreement (other than this Guaranty), or waive such performance or
compliance
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or consent to a failure of, or departure from, such performance or
compliance;
take and hold security or collateral for the payment of the
Guaranteed Obligations or sell, exchange, release, dispose of, or
otherwise deal with, any property pledged, mortgaged or conveyed, or in
which the Agent or the Tranche A Lenders have been granted a Lien, to
secure any indebtedness or other obligation of the Guarantor or the
Borrower to the Agent or the Tranche A Lenders;
release anyone who may be liable in any manner for the payment of
any amounts owed by the Guarantor or the Borrower to the Agent or any
Tranche A Lender;
modify or terminate the terms of any intercreditor or subordination
agreement pursuant to which claims of other creditors of the Guarantor or
the Borrower are subordinated to the claims of the Agent or any Tranche A
Lender; or
apply any sums by whomever paid or however realized to any amounts
owing by the Guarantor or the Borrower to the Agent or any Tranche A
Lender in such manner as the Agent or any Tranche A Lender shall
determine in its discretion;
then neither the Agent nor any Tranche A Lender shall incur any liability to
the Guarantor as a result thereof, and no such action shall impair or release
the obligations of the Guarantor under this Guaranty.
Reinstatement. The Guarantor agrees that, if any payment made by the
Borrower or any other Person applied to the Guaranteed Obligations is at any
time annulled, set aside, rescinded, invalidated, declared to be fraudulent or
preferential or otherwise required to be refunded or repaid, or the proceeds of
Collateral for the Guaranteed Obligations are required to be returned by the
Agent or any Tranche A Lender to the Borrower, its estate, trustee, receiver or
any other party, including, without limitation, the Guarantor, under any Legal
Requirement or equitable cause, then, to the extent of such payment or
repayment, the Guarantor's liability hereunder (and any Lien or Collateral
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securing such liability) shall be and remain in full force and effect, as fully
as if such payment had never been made, and, if prior thereto, this Guaranty
shall have been canceled or surrendered (and if any Lien or Collateral securing
the Guarantor's liability hereunder shall have been released or terminated by
virtue of such cancellation or surrender), this Guaranty (and such Lien or
Collateral) shall be reinstated in full force and effect, and such prior
cancellation or surrender shall not diminish, release, discharge, impair or
otherwise affect the obligations of the Guarantor in respect of the amount of
such payment (or any Lien or Collateral securing such obligation).
Waiver of Subrogation and Contribution. The Guarantor hereby irrevocably
waives any claims or other rights which it may now or hereafter acquire against
the Borrower that arise from the existence or performance of the Guarantor's
obligations under this Guaranty, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy of the Agent or the Tranche A
Lenders against the Borrower or any security or collateral which the Agent or
the Tranche A Lenders now have or may hereafter acquire, whether or not such
claim, remedy or right arises in equity or under contract, statute or common
law, by any payment made hereunder or otherwise, including without limitation,
the right to take or receive from the Borrower, directly or indirectly, in cash
or other property or by set-off or in any other manner, payment or security on
account of such claim or other rights.
Representations and Warranties. To induce the Agent and the Tranche A
Lenders to execute the Participation Agreement and the other Operative
Agreements and, in case of the Tranche A Lenders, to make any Tranche A Loans,
the Guarantor hereby represents and warrants that:
(a) the Guarantor has the corporate power, authority and
legal right to execute, deliver and perform this Guaranty and has
taken all necessary corporate action to authorize its execution,
delivery and performance of, this Guaranty;
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(b) this Guaranty constitutes the legal, valid and binding
obligation of the Guarantor enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and by the
availability of equitable remedies;
(c) the execution, delivery and performance of this Guaranty
will not violate any provision of any Legal Requirement or
contractual obligation of the Guarantor and will not result in the
creation or imposition of any Lien on any of the properties or
revenues of the Guarantor pursuant to any Legal Requirement or
contractual obligation;
(d) no consent or authorization of, filing with, or other act
by or in respect of, any arbitrator or Governmental Authority and
no consent of any other Person (including, without limitation, any
stockholder or creditor of the Guarantor), is required in
connection with the execution, delivery, performance, validity or
enforceability of this Guaranty;
(e) no litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the
knowledge of the Guarantor, threatened by or against the Guarantor
or against any of its properties or revenues with respect to this
Guaranty or any of the transactions contemplated hereby; and
(f) the Guarantor has good record and marketable title in fee
simple to or valid leasehold interests in all of its real property, and
has good title to all of its other property, free of any and all Liens of
any type whatsoever, except those permitted by the terms of the Operative
Agreements.
Remedies.
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(a) Upon the occurrence of any Event of Default, with the consent of the
Majority Lenders (as determined with reference to the Tranche A Loans only),
the Agent may, or upon the request of the Majority Lenders (as determined with
reference to the Tranche A Loans only), the Agent shall, enforce against the
Guarantor its obligations and liabilities hereunder and exercise such other
rights and remedies as may be available to the Agent hereunder, under the
Operative Agreements or otherwise.
(b) No right or remedy herein conferred upon the Agent is intended to be
exclusive of any other right or remedy contained herein or in any other
Operative Agreement or otherwise, and every such right or remedy contained
herein and therein or now or hereafter existing at law, or in equity, or by
statute, or otherwise shall be cumulative. The Majority Lenders (as determined
with reference to the Tranche A Loans only) may instruct the Agent to pursue,
or refrain from pursuing, any remedy available to the Agent at such times and
in such order as such Majority Lenders shall determine, and such Majority
Lenders' election as to such remedies shall not impair any remedies against the
Guarantor not then exercised. In addition, any election of remedies which
results in the denial or impairment of the right of the Agent to seek a
deficiency judgment against the Borrower shall not impair the Guarantor's
obligation to pay the full amount of the Guaranteed Obligations.
SECTION 12. Miscellaneous.
Entire Agreement; Amendments. This Guaranty, together with the other
Operative Agreements, constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements with
respect to the subject matter hereof and may not be amended or supplemented
except by a writing signed by the Guarantor and the Agent.
Headings. The headings in this Guaranty are for convenience of reference
only and are not part of the substance of this Guaranty.
Severability. In the event that any one or more of the provisions
contained in this Guaranty shall be determined to be
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invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision or provisions in every other
respect and the remaining provisions of this Guaranty shall not be in any way
impaired.
Notices. All notices and communications hereunder shall be given in
accordance with Section 14.3 of the Participation Agreement.
Binding Effect. This Guaranty shall bind the Guarantor and shall inure to
the benefit of the Agent and the Tranche A Lenders and their respective
successors and assigns. The Guarantor may not assign this Guaranty or delegate
any of its duties hereunder.
Non-Waiver. The failure of the Agent or any Tranche A Lender to enforce
any right or remedy hereunder, or promptly to enforce any such right or remedy,
shall not constitute a waiver thereof, nor give rise to any estoppel against
the Agent or any Tranche A Lender, nor excuse the Guarantor from its
obligations hereunder. Any waiver of any such right or remedy by the Tranche A
Lenders must be in writing and signed by the Majority Lenders (as determined
with respect to Tranche A Loans only).
Termination. This Guaranty shall terminate and be of no further force or
effect on the date when the Guaranteed Obligations have been indefeasibly paid
in full and the Tranche A Commitments terminated.
Governing Law. This Guaranty shall be governed by and construed and
enforced in accordance with the laws of the State of North Carolina, without
reference to the conflicts or choice of law principles thereof.
(i) Consent to Jurisdiction. To the fullest extent permitted by
applicable law, the Guarantor hereby irrevocably consents to the personal
jurisdiction of the state and federal courts located in Mecklenburg County,
North Carolina, in any action, claim or other proceeding arising out of any
dispute in connection with this Guaranty, any rights or obligations hereunder,
or the performance of such rights and obligations. The
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Guarantor hereby irrevocably consents to the service of a summons and complaint
and other process in any action, claim or proceeding brought by the Agent or
any Tranche A Lender in connection with this Guaranty, any rights or
obligations hereunder, or the performance of such rights and obligations, on
behalf of itself or its property, in the manner referenced in Section 12(d).
Nothing in this Section 12(i) shall affect the right of the Agent or any
Tranche A Lender to serve legal process in any other manner permitted by Legal
Requirements or affect the right of the Agent or any Tranche A Lender to bring
any action or proceeding against the Guarantor or its properties in the courts
of any other jurisdictions.
(j) Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE AGENT, EACH TRANCHE A LENDER AND THE GUARANTOR HEREBY IRREVOCABLY
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM
OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
GUARANTY, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS
AND OBLIGATIONS.
(k) Expenses. The Guarantor agrees that it will reimburse the Agent and
each Tranche A Lender for all expenses (including reasonable attorneys fees and
expenses) incurred by the Agent or such Tranche A Lender in connection with the
obligations of the Guarantor under this Guaranty and any other Operative
Agreements and all expenses (including reasonable attorneys fees and expenses)
incurred by the Agent or any Tranche A Lender in connection with the
enforcement of this Guaranty.
(l) Limitation of Liability. Neither the Agent, the Tranche A Lenders nor
any Affiliate thereof shall have any liability with respect to, and the
Guarantor hereby waives, releases and agrees not to sue upon, any claim for any
special, indirect, punitive, exemplary or consequential damages suffered by the
Guarantor in connection with, arising out of, or in any way related to this
Guaranty and the other Operative Agreements, the transactions contemplated
herein or therein, or any act, omission or event occurring in connection
herewith or therewith.
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(m) Indemnities. The Guarantor agrees to hold the Agent and the Tranche A
Lenders harmless from and against all losses suffered by the Agent and the
Tranche A Lenders in connection with (i) the exercise by the Tranche A Lenders
of any right or remedy granted to them under this Guaranty, (ii) any claim, and
the prosecution or defense thereof, arising out of or in any way connected with
this Guaranty, and (iii) the collection or enforcement of the Guaranteed
Obligations or any of them; provided, that the Guarantor shall not be obligated
to reimburse the Agent or the Tranche A Lenders for costs and expenses, or
indemnify the Agent or the Tranche A Lenders for any loss, resulting from the
gross negligence or willful misconduct of the Agent or the Tranche A Lenders.
Notwithstanding any termination of this Guaranty, the indemnities to which the
Agent and the Tranche A Lenders are entitled under this Guaranty shall continue
in full force and effect and shall protect the Agent and the Tranche A Lenders
against events arising after such termination as well as before.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
under seal by its duly authorized officers as of the date first above written.
LCI INTERNATIONAL, INC.
[CORPORATE SEAL]
By:
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Attest: Name:
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By: Title:
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Name:
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Title:
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