Exhibit 10.7
Bank of America
Date November 14, 2000
Limited Guaranty
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Bank: Guarantor:
Bank of America, N.A. WorldCom, Inc.
Banking Center: Private Bank 000 Xxxxxxx Xxxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx, X.X. Clinton, MS 39056
Atlanta, Georgia 30308
(Name and street address, including county)
(Street address including county)
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"Borrower": Xxxxxxx X. Xxxxxx
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1. Guaranty. FOR VALUE RECEIVED, and to induce Bank of America, N.A. (Attn:
Private Bank) ("Bank") to make loans or advances or to extend credit or other
financial accommodations or benefits, with or without security, to or for the
account of Borrower, the undersigned "Guarantor", if more than one, then each of
them jointly and severally, hereby becomes surety for and irrevocably and
unconditionally guarantees to Bank prompt payment in an amount as provided
herein, when due, whether by acceleration or otherwise, of any Liabilities of
Borrower to Bank. This Guaranty is cumulative to and does not supersede any
other guaranties, except that this Guaranty replaces that certain Limited
Guaranty dated November 1, 2000 made by Guarantor in favor of Bank in the amount
of $75,000,000 and is not cumulative thereof.
This Guaranty is continuing and limited to the amount of ONE HUNDRED MILLION AND
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NO/100 DOLLARS ($100,000,000.00) principal plus interest owing at any time, plus
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attorney's fees, cost of expenses of collection incurred and/or the cost of the
enforcement of rights in enforcing this Guaranty (including, without limitation,
any liability arising from failure to comply with any state or federal laws,
rules and regulations concerning the control of hazardous waste or substances at
or with respect to any real estate securing any loan guaranteed hereby), plus
interest on such attorney's fees and cost of collection.
Except to the extent limited above, Guarantor unconditionally guarantees the
faithful, prompt and complete compliance by Borrower with all Obligations (as
hereinafter defined). The undertakings of Guarantor hereunder are independent
of the Liabilities and Obligations of Borrower and a separate action or actions
for payment, damages or performance may be brought or prosecuted against
Guarantor, whether or not an action is brought against Borrower or to realize
upon the security for the Liabilities and/or Obligations, whether or not
Borrower is joined in any such action or actions, and whether or not notice is
given or demand is made upon Borrower. Bank shall not be required to proceed
first against Borrower, or any other person or entity, whether primarily or
secondarily liable, or against any collateral held by it, before resorting to
Guarantor for payment, and Guarantor shall not be entitled to assert as a
defense to the enforceability of the Guaranty any defense of Borrower with
respect to any Liabilities or Obligations.
2. Paragraph Headings, Governing Law and Binding Effect. Xxxxxxxxx agrees that
the paragraph headings in this Guaranty are for convenience only and that they
will not limit any of the provisions of this Guaranty. Guarantor further agrees
that this Guaranty shall be governed by and construed in accordance with the
laws of the State of Georgia and applicable United States federal law.
Guarantor further agrees that this Guaranty shall be deemed to have been made in
the State of Georgia at Bank's address indicated above, and shall be governed
by, and construed in accordance with, the laws of the State of Georgia, or the
United States courts located within the State of Georgia, and is performable in
the State of Georgia. This Guaranty is binding upon Guarantor, his, their or
its executors, administrators, successors or assigns, and shall inure to the
benefit of Bank, its successors, indorsees or assigns. Anyone executing this
Guaranty shall be bound by the terms hereof without regard to execution by
anyone else.
3. Definitions.
A. "Guarantor" shall mean Guarantor or any one or more of them.
B. "Liability" or "Liabilities" shall mean without limitation, all
liabilities, overdrafts, indebtedness, and obligations of Borrower and/or
Guarantor to Bank, whether direct or indirect, absolute or contingent, joint or
several, secured or unsecured, due or not due, contractual or tortious,
liquidated or unliquidated, arising by operation of law or otherwise, now or
hereafter existing, or held or to be held by Bank for its own account or as
agent for another or others, whether created directly, indirectly, or acquired
by assignment or otherwise, including but not limited to all extensions or
renewals thereof, and all sums payable under or by virtue thereof, including
without limitation, all amounts of principal and interest, all expenses
(including reasonable attorney's fees and cost of collection) incurred in the
collection thereof or the enforcement of rights thereunder (including without
limitation, any liability arising from failure to comply with state or federal
laws, rules and regulations concerning the control of hazardous waste or
substances at or with respect to any real estate securing any loan guaranteed
hereby), whether arising in the ordinary course of business or otherwise. If
Borrower is a partnership, corporation or other entity the term "Liability" or
"Liabilities" as used herein shall include all Liabilities to Bank of any
successor entity or entities.
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C. "Loan Documents" shall mean all deeds to secure debt, deeds of trust,
mortgages, security agreements and other documents securing payment of the
Liabilities and all notes and other agreements, documents, and instruments
evidencing or relating to the Liabilities and Obligations.
D. "Obligation" or "Obligations" shall mean all terms, conditions, covenants,
agreements and undertakings of Borrower and/or Guarantor under all notes and
other documents evidencing the Liabilities, and under all deeds to secure debt,
deeds of trust, mortgages, security agreements and other agreements, documents
and instruments executed in connection with the Liabilities or related thereto.
4. Waivers by Guarantor. Guarantor waives notice of acceptance of this
Guaranty, notice of any Liabilities or Obligations to which it may apply,
presentment, demand for payment, protest, notice of dishonor or nonpayment of
any Liabilities, notice of intent to accelerate, notice of acceleration, and
notice of any suit or the taking of other action by Bank against Borrower,
Guarantor or any other person, any applicable statute of limitations and any
other notice to any party liable on any Loan Document (including Guarantor).
Each Guarantor also hereby waives any claim, right or remedy which such
Guarantor may now have or hereafter acquire against Borrower that arises
hereunder and/or from the performance by any other Guarantor hereunder
including, without limitation, any claim, remedy or right of subrogation,
reimbursement, exoneration, contribution, indemnification, or participation in
any claim, right or remedy of Bank against Borrower or against any security
which Bank now has or hereafter acquires, whether or not such claim, right or
remedy arises in equity, under contract, by statute, under common law or
otherwise.
Guarantor also waives the benefits of any provision of law requiring that Bank
exhaust any right or remedy, or take any action, against Borrower, any
Guarantor, any other person and/or property including but not limited to the
provisions of the Official Code of Georgia (S)10-7-24 and the Official Code of
Georgia (S)11-3-601, inclusive, as amended, or otherwise.
Bank may at any time and from time to time (whether before or after revocation
or termination of this Guaranty) without notice to Guarantor (except as required
by law), without incurring responsibility to Guarantor, without impairing,
releasing or otherwise affecting the Obligations of Guarantor, in whole or in
part, and without the indorsement or execution by Guarantor of any additional
consent, waiver or guaranty: (a) change the manner, place or terms of payment,
or change or extend the time of or renew, or change any interest rate or alter
any Liability or Obligation or installment thereof, or any security therefor;
(b) loan additional monies or extend additional credit to Borrower, with or
without security, thereby creating new Liabilities or Obligations the payment or
performance of which shall be guaranteed hereunder, and the Guaranty herein made
shall apply to the Liabilities and Obligations as so changed, extended,
surrendered, realized upon or otherwise altered; (c) sell, exchange, release,
surrender, realize upon or otherwise deal with in any manner and in any order
any property at any time pledged or mortgaged to secure the Liabilities or
Obligations and any offset there against; (d) exercise or refrain from
exercising any rights against Borrower or others (including Guarantor) or act or
refrain from acting in any other manner; (e) settle or compromise any Liability
or Obligation or any security therefor and subordinate the payment of all or any
part thereof to the payment of any Liability or Obligation of any other parties
primarily or secondarily liable on any of the Liabilities or Obligations; (f)
release or compromise any Liability of Guarantor hereunder or any Liability or
Obligation of any other parties primarily or secondarily liable on any of the
Liabilities or Obligations; or (g) apply any sums from any sources to any
Liability without regard to any Liabilities remaining unpaid.
5. Waivers by Bank. No delay on the part of Bank in exercising any of its
options, powers or rights, and no partial or single exercise thereof, shall
constitute a waiver thereof. No waiver of any of its rights hereunder, and no
modification or amendment of this Guaranty, shall be deemed to be made by Bank
unless the same shall be in writing, duly signed on behalf of Bank; and each
such waiver, if any, shall apply only with respect to the specific instance
involved, and shall in no way impair the rights of Bank or the obligations of
Guarantor to Bank in any other respect at any other time.
6. Termination. This Guaranty shall be binding on each Guarantor until written
notice of revocation signed by such Guarantor or written notice of the death of
such Guarantor shall have been received by Bank, notwithstanding change in name,
location, composition or structure of, or the dissolution, termination or
increase, decrease or change in personnel, owners or partners of Borrower, or
any one or more of Guarantors. No notice of revocation or termination hereof
shall affect in any manner rights arising under this Guaranty with respect to
Liabilities or Obligations that shall have been committed, created, contracted,
assumed or incurred prior to receipt of such written notice pursuant to any
agreement entered into by Bank prior to receipt of such notice. The sole effect
of such notice of revocation or termination hereof shall be to exclude from this
Guaranty, Liabilities or Obligations thereafter arising that are unconnected
with Liabilities or Obligations theretofore arising or transactions entered into
theretofore.
7. Partial Invalidity and/or Enforceability of Guaranty. The unenforceability
or invalidity of any provision of this Guaranty shall not affect the
enforceability or validity of any other provision herein and the invalidity or
unenforceability of any provision of any Loan Document as it may apply to any
person or circumstance shall not affect the enforceability or validity of such
provision as it may apply to other persons or circumstances.
In the event Bank is required to relinquish or return the payments, the
collateral or the proceeds thereof, in whole or in part, which had been
previously applied to or retained for application against any Liability, by
reason of a proceeding arising under the Bankruptcy Code, or for any other
reason, this Guaranty shall automatically continue to be effective
notwithstanding any previous cancellation or release effected by Bank.
8. Financial and Other Information. Guarantor agrees to furnish to Bank any
and all financial information and any other information regarding Guarantor
and/or collateral requested in writing by Bank within ten (10) days of the date
of the request. Guarantor has made an independent investigation of the
financial condition and affairs of Borrower prior to entering into this
Guaranty, and Guarantor will continue to make such investigation; and in
entering into this Guaranty Guarantor has not relied upon any representation of
Bank as to the financial condition, operation or creditworthiness of Borrower.
Guarantor further agrees that Bank shall have no duty or responsibility now or
hereafter to make any investigation or
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appraisal of Borrower on behalf of Guarantor or to provide Guarantor with any
credit or other information which may come to its attention now or hereafter.
9. Notices. Notice shall be deemed reasonable if mailed postage prepaid at
least five (5) days before the related action to the address of Guarantor or
Bank, at their respective addresses indicated at the beginning of this Guaranty,
or to such other address as any party may designate by written notice to the
other party. Each notice, request and demand shall be deemed given or made, if
sent by mail, upon the earlier of the date of receipt or five (5) days after
deposit in the U.S. Mail, first class postage prepaid, or if sent by any other
means, upon delivery.
10. Guarantor Duties. Guarantor shall upon notice or demand by Bank promptly
and with due diligence pay all Liabilities and perform and satisfy all
Obligations for the benefit of Bank in the event of (a) the occurrence of any
default under any Loan Documents; (b) the failure of any Borrower or Guarantor
to perform any obligation or pay any liability or indebtedness of any Borrower
or Guarantor to Bank, or to any affiliate of Bank, whether under any Note,
Guaranty, or any other agreement, now or hereafter existing, as and when due
(whether upon demand, at maturity or by acceleration); (c) the failure of any
Borrower or Guarantor to pay or perform any other liability, obligation or
indebtedness of any Borrower or Guarantor to any other party; (d) the death of
any Borrower or Guarantor (if an individual); (e) the resignation or withdrawal
of any partner or a material owner/Guarantor of Borrower, as determined by Bank
in its sole discretion; (f) the commencement of a proceeding against any
Borrower or Guarantor for dissolution or liquidation, the voluntary or
involuntary termination or dissolution of any Borrower or Guarantor or the
merger or consolidation of any Borrower or Guarantor with or into another
entity; (g) the insolvency, or the business failure of, or the appointment of a
custodian, trustee, liquidator or receiver for or of any of the property of, or
the assignment for the benefit of creditors by, or the filing of a petition
under bankruptcy, insolvency or debtor's relief law or the filing of a petition
for any adjustment of indebtedness, composition or extension by or against any
Borrower or Guarantor; (h) the sole determination by Bank that any
representation or warranty to Bank in any Loan Document or otherwise to Bank was
untrue or materially misleading when made; (i) the failure of Guarantor or
Borrower to timely deliver such financial statements including tax returns and
all schedules, or other statements of condition or other information, as Bank
shall request from time to time; (j) the entry of a judgment against Borrower or
Guarantor which Bank deems to be of a material nature in the sole discretion of
Bank; (k) the seizure or forfeiture of any of Borrower or Guarantor's property,
or the issuance of any writ of possession, garnishment or attachment, or any
turnover order; (l) the sole determination by Bank that Guarantor or Borrower
jointly or severally, has suffered a material adverse change in its financial
condition; or (m) any lien or additional security interest being placed upon any
collateral which is security for any Loan Document.
11. Remedies. Upon the failure of Guarantor to fulfill its duty to pay all
Liabilities and perform and satisfy all Obligations as required hereunder, Bank
shall have all of the remedies of a creditor and, to the extent applicable, of a
secured party, under all applicable law, and without limiting the generality of
the foregoing, Bank may, at its option and without notice or demand: (a)
declare any Liability due and payable at once; (b) take possession of any
collateral pledged by Borrower or Guarantor wherever located, and sell, resell,
assign, transfer and deliver all or any part of said collateral of Borrower or
Guarantor at any public or private sale or otherwise dispose of any or all of
the collateral in its then condition, for cash or on credit or for future
delivery, and in connection therewith Bank may impose reasonable conditions upon
any such sale, and Bank, unless prohibited by law the provisions of which cannot
be waived, may purchase all or any part of said collateral to be sold, free from
and discharged of all trusts, claims, rights or redemption and equities of
Borrower or Guarantor whatsoever; Guarantor acknowledges and agrees that the
sale of any collateral through any nationally recognized broker- dealer,
investment banker or any other method common in the securities industry shall be
deemed a commercially reasonable sale under the Uniform Commercial Code or any
other equivalent statute or federal law, and expressly waives notice thereof
except as provided herein; and (c) set-off against any or all liabilities of
Guarantor all money owed by Bank or any of its agents or affiliates in any
capacity to Guarantor whether or not due, and also set-off against all other
Liabilities of Guarantor to Bank all money owed by Bank in any capacity to
Guarantor, and if exercised by Bank, Bank shall be deemed to have exercised such
right of set-off and to have made a charge against any such money immediately
upon the occurrence of such default although made or entered on the books
subsequent thereto.
12. Attorney Fees, Cost and Expenses. Guarantor shall pay all costs of
collection and reasonable attorney's fees, including reasonable attorney's fees
in connection with any suit, mediation or arbitration proceeding, out of Court
payment agreement, trial, appeal, bankruptcy proceedings or otherwise, incurred
or paid by Bank in enforcing the payment of any Liability or defending this
agreement.
13. Preservation of Property. Bank shall not be bound to take any steps
necessary to preserve any rights in any property pledged as collateral to Bank
to secure Borrower and/or Guarantor's Liabilities and Obligations as against
prior parties who may be liable in connection therewith, and Borrower and
Guarantor hereby agree to take any such steps. Bank, nevertheless, at any time,
may (a) take any action it deems appropriate for the care or preservation of
such property or of any rights of Borrower and/or Guarantor or Bank therein; (b)
demand, sue for, collect or receive any money or property at any time due,
payable or receivable on account of or in exchange for any property pledged as
collateral to Bank to secure Borrower and/or Guarantor's Liabilities to Bank;
(c) compromise and settle with any person liable on such property; or (d) extend
the time of payment or otherwise change the terms of the Loan Documents as to
any party liable on the Loan Documents, all without notice to, without incurring
responsibility to, and without affecting any of the Obligations or Liabilities
of Guarantor.
14. ARBITRATION. (a) This paragraph concerns the resolution of any
controversies or claims between Guarantor and Bank, whether arising in contract,
tort or by statute, including but not limited to controversies or claims that
arise out of or relate to: (i) this Guaranty (including any renewals, extensions
or modifications); or (ii) any document related to this Guaranty (collectively a
"Claim"); (b) At the request of Guarantor or Bank, any Claim shall be resolved
by binding arbitration in accordance with the Federal Arbitration Act (Title 9,
United States Code) (the "Act"). The Act will apply even though this Guaranty
provides that it is governed by the law of a specified state; (c) Arbitration
proceedings will be determined in accordance with the Act, the applicable rules
and procedures for the arbitration of disputes of JAMS or any successor thereof
("JAMS"), and the terms of this paragraph. In the event of any inconsistency,
the terms of this paragraph shall control; (d) The arbitration shall be
administered by JAMS and conducted in any U.S. state where real or tangible
personal property collateral for this Guaranty is located or if there is no such
collateral, in Georgia. All Claims shall be determined by one arbitrator;
however, if Claims exceed Five Million U.S. Dollars ($5,000,000), upon the
request of any party, the Claims shall be decided by three arbitrators. All
arbitration hearings shall commence within 90 days of the demand for arbitration
and close within 90 days of commencement, and the award of the arbitrator(s)
shall be issued within 30 days of the close of the hearing. However, the
arbitrator(s), upon a showing
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of good cause, may extend the commencement of the hearing for up to an
additional 60 days. The arbitrator(s) shall provide a concise written statement
of reasons for the award. The arbitration award may be submitted to any court
having jurisdiction to be confirmed and enforced; (e) The arbitrator(s) will
have the authority to decide whether any Claim is barred by the statute of
limitations and, if so, to dismiss the arbitration on that basis. For purposes
of the application of the statute of limitations, the service on JAMS under
applicable JAMS rules of a notice of claim is the equivalent of the filing of a
lawsuit. Any dispute concerning this arbitration provision or whether a Claim is
arbitrable shall be determined by the arbitrator(s). The arbitrator(s) shall
have the power to award legal fees pursuant to the terms of this Guaranty; (f)
This paragraph does not limit the right of Guarantor or Bank to: (i) exercise
self-help remedies, such as but not limited to, setoff, (ii) initiate judicial
or nonjudicial foreclosure against any real or personal property collateral,
(iii) exercise any judicial or power of sale rights, or (iv) act in a court of
law to obtain an interim remedy, such as but not limited to, injunctive relief,
writ of possession or appointment of a receiver, or additional or supplementary
remedies; and (g) The filing of a court action is not intended to constitute a
waiver of the right of Guarantor or Bank, including the suing party, thereafter
to require submittal of the Claim to arbitration.
15. Controlling Document. To the extent that this Limited Guaranty conflicts
with or is in any way incompatible with any other Loan Document concerning this
Obligation, any promissory note shall control over any other document, and if
such promissory note does not address an issue, then each other document shall
control to the extent that it deals most specifically with an issue.
16. NOTICE OF FINAL AGREEMENT. THIS WRITTEN LIMITED GUARANTY REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be executed
under seal on this 14 day of November, 2000.
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Witnessed By: Guarantor:
/s/ X.X. Xxxxxxxx WORLDCOM, INC.
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X.X. Xxxxxxxx, VP Investor Relations By: /s/ Xxxxx X. Xxxxx
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Print Name and Title Xxxxx X. Xxxxx
Senior Vice President
Bank of America Limited Guaranty
Georgia [Commercial] 2/96
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