SECOND AMENDED AND RESTATED GUARANTEE AGREEMENT
This continuing, absolute and unconditional amended and restated guarantee
is given by the undersigned ("Guarantor") to induce DRESDNER BANK LATEINAMERIKA
AKTIENGESELLSCHAFT, Miami Agency, an international bank agency licensed by the
State of Florida, BANK LEUMI USA, a New York banking corporation, ISRAEL
DISCOUNT BANK LIMITED, Miami Agency, an international bank agency licensed by
the State of Florida (collectively, "Existing Lenders"), and ABN AMRO BANK N.V.,
Miami Agency, an international bank agency licensed by the State of Florida,
BANQUE SUDAMERIS, Miami Agency, an international bank agency licensed by the
State of Florida; THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association, FIRST UNION NATIONAL BANK, a national banking association; WACHOVIA
BANK N.A., a national banking association (collectively, "New Lenders")
(Existing Lenders and New Lenders together, "Lenders"), having a business
address of P.O. Box 01-6039, 000 Xxxxxxxx Xxxxxx, Xxxxx, XX 00000 to extend
credit to or otherwise become or remain the creditor of DYCOM INDUSTRIES, INC.,
a Florida corporation ("Borrower");
In consideration of the foregoing, Guarantor does hereby agree with
Lenders as follows:
1. GENERAL.
This Second Amended and Restated Guarantee Agreement provides for
the inclusion of New Lenders as additional obligees of Borrower,
and represents the continuing, absolute and unconditional Guarantee
by the undersigned of all of Borrower's existing and new
obligations to Existing Lenders and to New Lenders.
2. OBLIGATION OF GUARANTOR.
Guarantor absolutely and unconditionally guarantees to Lenders,
their successors and assigns (whether collateral assigns or
otherwise), the prompt and full payment in United States currency
and performance to Lenders at the place of business of Lenders set
forth above or at such other place and to such other person as
Lenders may designate at maturity of any and every obligation, in
connection with which either as maker, drawer, guarantor, endorser
or otherwise, whether directly, indirectly or contingently,
Borrower is, either individually or jointly and severally with any
other person or persons, or shall become at any time in the future
liable to Lenders, with interest thereon at the rate or rates
provided in the obligations guaranteed hereby or at the maximum
rate allowed from time to time by law in Florida, whichever is
less, until payment in full has been received by Lenders, together
with all attorneys' fees, costs and expenses of collection whether
suit be brought or not, including costs, expenses and attorneys'
fees on appeal if an appeal is taken from any suit, incurred by
Lenders, in connection with any matter covered by this Guarantee.
Guarantor also absolutely and unconditionally guarantees the full
and timely performance of all duties and obligations whatsoever of
Borrower to Lenders, whether now existing or hereafter arising, and
agrees in the event Borrower fails to fully and timely perform any
of said duties and obligations to fully and timely perform same.
3. TERM OF GUARANTEE.
The liability of Guarantor hereunder shall continue until the
earlier of (i) the 120th day after this Guarantee is marked
"Cancelled" by Lenders and returned to Guarantor or (ii) until
Lenders shall receive written notice, by registered mail signed by
Guarantor, cancelling this Guarantee, but such cancellation shall
not affect in any way the continuing liability of Guarantor on any
transactions covered by this Guarantee up to the time of the actual
receipt by Lenders of such notice of cancellation, including any
advance or other monies which may at any time thereafter be made by
Lenders to Borrower pursuant to any agreement, promissory note or
other instrument or document evidencing any indebtedness of
Borrower to Lenders, entered into prior to the receipt by Lenders
of said notice by Guarantor. Notwithstanding the receipt by Lenders
of any notice of cancellation hereunder, Lenders may in their
discretion amend, modify and renew in any way whatsoever any
agreement, promissory note or other instrument or document
evidencing any indebtedness of Borrower to Lenders and in existence
at the time said notice of cancellation is received by Lenders, all
without affecting in any way whatsoever the continuing liability of
Guarantor hereunder, but the liability of Guarantor solely in
regard to the principal amount owed Lenders shall not exceed the
amount of principal owing to Lenders at the time said notice of
cancellation is received by Lenders together with such additional
amounts as may thereafter be advanced by Lenders to or on behalf of
Borrower pursuant to any such agreement, promissory note or other
instrument or document in existence at the time said notice is
received by Lenders. In the event said notice of cancellation is
given, the liability of Guarantor shall continue without limitation
whatsoever for all amounts other than principal (which is limited
under the preceding sentence) due Lenders such as interest,
attorney's fees, costs, and other such amounts.
4. BANKRUPTCY OF BORROWER.
Notwithstanding that the Guarantee may have been cancelled under
paragraph 3, and/or returned to Guarantor, to the extent Borrower
has made any payments to Lenders within the one (1) year period
following the date this Guarantee was so cancelled, and Guarantor
was obligated under this Guarantee for said payments, the liability
of Guarantor hereunder shall at all times continue for the amounts
so paid by Borrower to Lenders. If, for any reason (e.g.
bankruptcy, or otherwise), Lenders are not permitted to retain the
payments so made by Borrower during said one (1) year period,
Guarantor shall be liable under this Guarantee for the amount of
such payments as if this Guarantee had never been cancelled and
Lenders shall be entitled to recover said amount so paid by
Borrower within said one (1) year period. Anything in this
Guarantee to the contrary notwithstanding, if at any time this
Guarantee is to be cancelled under the provisions of paragraph 3,
Lenders may retain this Guarantee for a period of one hundred
twenty (120) days after the date said Guarantee is to be so
cancelled and in the event no bankruptcy petition has been filed by
or against Borrower for the one (1) year period following the date
the Guarantee is to be cancelled, then, in that event, the
Guarantee shall be returned to Guarantor. If, however, a bankruptcy
petition has been filed by or against Borrower during the one (1)
year period, and Borrower has made payments to Lenders during the
one (1) year period, this Guarantee shall not be cancelled and/or
returned to Guarantor unless and until a decision by a court of
competent jurisdiction, or other agreement has been entered or
reached, pursuant to which Lenders shall be entitled to retain all
such monies paid during the one (1) year period. If, as set forth
above, Lenders are obligated to return to Borrower any monies so
paid during the one (1) year period, this Guarantee shall not be
cancelled (notwithstanding it being marked "Cancelled" and returned
to Guarantor) and Guarantor shall continue to be liable to Lenders
for all monies paid during the one (1) year period. If Lenders
shall have marked this Guarantee "Cancelled" and/or returned this
Guarantee to Guarantor, and under the provisions of
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this paragraph 4 or paragraph 3, Guarantor has continuing liability
to Lenders for certain amounts which Lenders have or are
obligated to return to Borrower, then, in such case, Lenders may
enforce their rights under this Guarantee upon any copy of this
Guarantee notwithstanding the fact that the original of this
Guarantee may have been marked "Cancelled" and/or returned to
Guarantor.
5. CONSENT TO LENDERS' ACTS.
Guarantor consents, without affecting in any way Guarantor's
liability to Lenders hereunder, that Lenders may, without notice to
or consent of Guarantor and upon such terms as they may deem
advisable and with or without consideration and after notice of
cancellation is received by Lenders under paragraph 3 hereof: (a)
extend, in whole or in part, by renewal or otherwise, and as often
as Lenders may wish, the time of payment of any indebtedness owing
by Borrower, to Lenders, or held by Lenders as security for any
such obligation; (b) release, surrender, exchange, modify, impair,
or extend the period of duration, or the time for performance of
payment, of any collateral securing any obligation of Borrower to
Lenders; (c) settle or compromise any claim of Lenders against
Borrower, or against any other person, firm or corporation, whose
obligation is held by Lenders as collateral security for any
obligation of Borrower to Lenders; and (d) release in whole or in
part any person liable for the payment of any obligation of
Borrower to Lenders including, but not limited to, any person
liable as an endorser, guarantor or judgment debtor (if Lenders
obtain a judgment on any obligation of Borrower) of said obligation
and, in any event, any such release shall not affect the liability
of Guarantor for the entire amount of any and every obligation of
Borrower to Lenders. Further, Lenders shall not be under any
obligation whatsoever to obtain or perfect or to maintain the
perfection of any security interest or other lien on property to
secure indebtedness of Borrower to Lenders and Lenders shall have
no obligation to, and shall not have any liability for failing to,
obtain or perfect or to maintain the perfection of any security
interest or lien on property to secure indebtedness of Borrower.
Any failure of Lenders to obtain and perfect or to maintain the
perfection of any security interest or lien shall not affect in any
way whatsoever the obligation of Guarantor to Lenders under this
Guarantee. Guarantor hereby ratifies and confirms any such
extension, renewal, release surrender, exchange, modification,
impairment, settlement, or compromise, and all such actions shall
be binding upon Guarantor who hereby waives all defenses,
counterclaims, or offsets which Guarantor might have by reason
thereof.
6. WAIVERS BY GUARANTOR.
Guarantor waives: (a) notice of acceptance of this Guarantee by
Lenders; (b) notice of presentment, demand for payment, notice of
dishonor or protest of any of Borrower's obligations or the
obligation of any person, firm, or corporation held by Lenders as
collateral security for Borrower's obligation; (c) notice of the
failure of any person, firm, or corporation to pay to Lenders any
indebtedness held by Lenders as collateral security for any
obligation of Borrower; (d) failure of Lenders to obtain and
perfect or maintain the perfection or priority of any security
interest or lien on property to secure any indebtedness of
Borrower; and (e) all defenses, offsets and counterclaims which
Guarantor may at any time have to any claim of Lenders against
Borrower.
7. SUBROGATION.
Nothing herein contained is intended or shall be construed to give
to Guarantor any right of subrogation in or under any note,
security document or any other loan document evidencing in any way
or relating to any obligation of Borrower to Lenders which is or
may be covered by this Guarantee, any right to participate in any
way therein, or in the right, title and interest of Lenders
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in or to any collateral covered by any loan or security documents
relating to any such obligations notwithstanding any payments made
by Guarantor under this Guarantee, all such rights of subrogation
and participation being hereby expressly waived and released.
8. SUBORDINATION.
In the event that for any reason whatsoever, Borrower is now or
hereafter becomes indebted to Guarantor, Guarantor agrees that the
amount of such indebtedness and all interest thereon shall at all
times be subordinate as to lien, time of payment and in all other
respects to all obligations of Borrower to Lenders which are
covered by this Guarantee, and that Guarantor shall not be entitled
to enforce or receive payment thereof until all sums then due and
owing to Lenders shall have been paid in full. If any payment shall
have been made to Guarantor by Borrower on any said indebtedness
during any time that there are obligations outstanding from
Borrower to Lenders which are covered by this Guarantee, Guarantor
shall hold in trust all such payments for the benefit of Lenders
and shall make said payments to Lenders to be credited and applied
against obligations of Borrower to Lenders, whether matured or
unmatured, in accordance with the discretion of Lenders.
9. REPRESENTATIONS BY GUARANTOR.
Guarantor represents and warrants that:
(i) at the time of the execution and delivery of this Guarantee,
nothing exists to impair the effectiveness of the liability of
Guarantor to Lenders hereunder, or the immediate taking effect of
this Guarantee as the sole agreement between Guarantor and Lenders
with respect to guaranteeing Borrower's obligation to Lenders;
(ii) it is in the best interest of Guarantor to execute this
Guarantee inasmuch as Guarantor will derive substantial direct and
indirect benefits from the Advances made from time to time to
Borrower by Lenders pursuant to the Second Amended and Restated
Facility Agreement of even date herewith (the "Second Amended
Facility Agreement"); and
(iii) all representations and warranties contained in Article V of
the Second Amended Facility Agreement, insofar as the
representations and warranties contained therein are applicable to
Guarantor and its properties, are true and correct in all material
respects, each such representation and warranty set forth in such
Article (insofar as applicable to Guarantor) and all other terms of
the Second Amended Facility Agreement to which reference is made
therein, together with all related definitions and ancillary
provisions, being hereby incorporated herein by reference as though
specifically set forth in this Section.
10. REMEDIES OF LENDERS.
Lenders may at their option proceed in the first instance against
Guarantor to collect any obligation covered by this Guarantee,
without first proceeding against Borrower for said obligation, or
any other person, firm or corporation liable for said obligation,
and without first resorting to any property at any time held by
Lenders as collateral security for said obligation and without any
marshalling of assets whatsoever. Guarantor hereby confirms the
grant of the security interest granted under that certain Amended
and Restated Security Agreement of even date herewith among
Guarantor and Lenders as secured parties under the Second Amended
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and Restated Credit Facility Agreement of even date herewith among
Borrower, the guarantors named therein and Lenders.
11. CONSTRUCTION AND BENEFIT.
This Guarantee is delivered and made in, and shall be construed
pursuant to and governed by, the laws of the State of Florida, and
is binding upon Guarantor and its legal representatives and
successors, and shall inure to the benefit of Lenders, their
respective successors and assigns.
12. MISCELLANEOUS.
In the event it becomes necessary for Lenders to exercise their
rights under this Guarantee, whether suit be brought or not,
Guarantor shall be liable for all costs and attorneys' fees
incurred by Lenders, including costs and attorneys' fees incurred
by Lenders on appeal. To the extent Guarantor is obligated to make
any payments to Lenders under this Guarantee, Lenders may offset
and retain in payment of said amounts any and all monies of
Guarantor in the possession of any of Lenders or any of their
affiliates at any time, including, but not limited to, any accounts
of Guarantor at any of Lenders. In the further event Lenders obtain
a final judgment against Guarantor upon this Guarantee, the
judgment shall bear interest not at the judgment rate but at the
highest rate permitted by applicable law from time to time in
effect at the time of said judgment. Further, Guarantor agrees that
the proper venue for any action which may be brought under this
Guarantee, in addition to any other venue permitted by law, shall
be in the county in which is located Lenders' business office as
designated above or the office of an assignee of this Guarantee.
The liability of Guarantor hereunder, if more than one, shall be
joint and several. The term "Lenders" shall be deemed to include
the aforementioned Lenders and all their respective departments and
any individual, partnership or corporation acting as their nominee
or agent, and any of their respective corporate subsidiaries or
affiliates, the stock of which is owned or controlled, directly or
indirectly, by it or by any affiliate of any of Lenders. The term
"Borrower" shall include the individual or individuals,
association, partnership, corporation or other entity named herein
as Borrower and (a) any successor individual or individuals,
association, partnership, corporation or other entity to which all
or substantially all of the business or assets of said Borrower
shall have been transferred, (b) in the case of a partnership
Borrower, any new partnership which shall have been created by
reason of the admission of any new partner or partners therein
and/or the dissolution of the existing partnership by the death,
resignation or other withdrawal of any partner, and (c) in the case
of a corporate Borrower, any other corporation into or with which
said Borrower shall have been merged, consolidated, reorganized,
purchased or absorbed.
13. FINANCIAL STATEMENTS.
At the request of Lenders, Guarantor shall, from time to time,
prepare and deliver to Lenders a complete and current financial
statement of Guarantor setting forth all the assets and liabilities
of Guarantor (and to the extent any person other than Guarantor has
any interest in said assets or any person other than Guarantor is
jointly liable for any of said obligation, said matters shall be
set forth in their entirety in the financial statements) all signed
by Guarantor under oath as being true and correct. To the extent
any assets or liabilities set forth on said financial statement are
owned by Guarantor for which there is any such joint liability, all
said assets shall be so specified and set forth.
14. COMPLETE AGREEMENT.
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The whole of this Guarantee is herein set forth and there is no
verbal or other written agreement, and no understanding or custom
affecting the terms hereof. This Guarantee can be modified only by
a written instrument signed by the party to be charged therewith.
THE PARTIES HERETO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT
EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SECOND AMENDED AND RESTATED
GUARANTEE AGREEMENT AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR LENDERS ENTERING INTO THIS SECOND AMENDED AND RESTATED GUARANTEE
AGREEMENT.
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IN WITNESS WHEREOF, Guarantor has signed this agreement on the 27th day of
April, 1999.
Signed, sealed and delivered
in the presence of: INSTALLATION TECHNICIANS, INC.,
a Missouri corporation
/s/ Xxxxxx Xxxxxxx
----------------------------------
WITNESS
/s/ Xxxx X. Xxxxxx By:/s/ Xxxxxx X. Xxxxxxx
---------------------------------- --------------------------------
WITNESS Xxxxxx X. Xxxxxxx, Vice-President
STATE OF GEORGIA
COUNTY OF XXXXXX
The foregoing instrument was acknowledged before me by Xxxxxx X. Xxxxxxx, as
Vice-President of INSTALLATION TECHNICIANS, INC., a Missouri corporation, the
27th day of April, 1999.
/s/ Xxxxxxxxx X. Xxxxx
-----------------------------------
(NOTARIAL SEAL) NOTARY PUBLIC
My commission expires:
September 29, 2002
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