EXHIBIT 10.4
EXECUTION COPY
PERSONAL GUARANTY
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This PERSONAL GUARANTY (this "Guaranty"), dated as of November 30, 2001,
is made by XXXXX XXXXXXXXXX, an individual having an address at the date hereof
at X.X. Xxx 0000, Xxxx Xxxxx, XX 00000 (the "Guarantor"), in favor of HSBC BANK
USA, as administrative agent (together with any successor(s) thereto in such
capacity, the "Administrative Agent") for each of the Secured Parties referred
to in the Credit Agreement (as defined below).
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, dated as of November 30, 2001
(as amended, supplemented, amended and restated or otherwise modified from time
to time, the "Credit Agreement"), among Marvel Enterprises, Inc. (the
"Borrower"), the various financial institutions and other Persons from time to
time parties thereto (the "Lenders"), the Administrative Agent and HSBC
Securities (USA), Inc., as sole Lead Arranger and sole Bookrunner, the Lenders
and the Issuer (such capitalized term, and other capitalized terms used in these
recitals without definition to have the meaning set forth in the Credit
Agreement) have extended Commitments to make Credit Extensions to the Borrower;
WHEREAS, as a condition precedent to the making of the Credit Extensions
(including the initial Credit Extension) under the Credit Agreement, the
Guarantor is required to execute and deliver this Guaranty;
WHEREAS, the Guarantor owns a substantial equity interest in the Borrower
and it is in the best interest of the Guarantor to execute this Guaranty,
inasmuch as the Guarantor will derive substantial direct and indirect benefits
from the Credit Extensions made from time to time to the Borrower pursuant to
the Credit Agreement; and
WHEREAS, all obligations of the Guarantor pursuant to this Guaranty are
secured by the Xxxxxxxxxx Security Agreement;
NOW THEREFORE, for good and valuable consideration the receipt of which is
hereby acknowledged, and in order to induce the Lenders and the Issuer to make
Credit Extensions (including the initial Credit Extension) to the Borrower
pursuant to the Credit Agreement, the Guarantor hereby agrees with the
Administrative Agent, for the benefit of each Secured Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Borrower" is defined in the first recital.
"Credit Agreement" is defined in the first recital.
"Guarantor" is defined in the preamble.
"Guaranty" is defined in the preamble.
"Lender" and "Lenders" are defined in the first recital.
SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein
or the context otherwise requires, terms used in this Guaranty, including its
preamble and recitals, have the meanings provided in the Credit Agreement.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. Guaranty. The Guarantor hereby absolutely, unconditionally
and irrevocably
(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand
or otherwise, of (i) an amount equal to 25% of the principal Obligations
and/or Reimbursement Obligations with respect to all Credit Extensions
made under the Credit Agreement and outstanding from time to time and (ii)
an amount equal to the difference between the amount required to be
maintained in the Cash Reserve Accounts pursuant to Section 7.1.10 of the
Credit Agreement and the amount on deposit in such Cash Reserve Accounts
from time to time at the end of each Fiscal Quarter; provided that (x) the
amount guaranteed any payable by the Guarantor pursuant to this Guaranty
at any time under the foregoing subclause (ii) shall not exceed
$10,000,000 and the amount guaranteed under the foregoing subclauses (i)
and (ii) shall not exceed $30,000,000 in the aggregate and (y) all amounts
payable under this Guaranty shall be payable directly to (and only to) the
Administrative Agent for the benefit of the Secured Parties, and
(b) indemnifies and holds harmless the Administrative Agent and each
other Secured Party for any and all costs and expenses (including
reasonable attorney's fees and expenses) incurred by the Administrative
Agent and such Secured Party in enforcing any rights under this Guaranty.
This Guaranty constitutes a guaranty of payment when due and not merely of
collection, and the Guarantor specifically agrees that it shall not be necessary
or required that any Secured Party exercise any right, assert any claim or
demand or enforce any remedy whatsoever against the Borrower or any other
Obligor (or any other Person) before or as a condition to the obligations of the
Guarantor hereunder.
SECTION 2.2. Acceleration of Guaranty. The Guarantor agrees that, in the
event of any Default described in any of clauses (a) through (d) of Section
8.1.9 of the Credit Agreement, and if such Default shall occur at a time when
any of the Obligations of the Borrower may not then be due and payable, the
Guarantor agrees that it will pay to the Lenders forthwith the full amount which
would be payable hereunder by the Guarantor if all such Obligations were then
due and payable.
SECTION 2.3. Guaranty Absolute, etc. This Guaranty shall in all respects
be a continuing, absolute, unconditional and irrevocable guaranty of payment,
and shall remain in full force and effect until all Obligations of the Borrower
and each other Obligor have been paid in full, all obligations of the Guarantor
hereunder, if any, shall have been paid in full, all Letters of Credit have
terminated or expired,
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all Rate Protection Agreements have been terminated and all Commitments shall
have terminated. The Guarantor guarantees that the Obligations of the Borrower
and each other Obligor will be paid strictly in accordance with the terms of the
Credit Agreement and each other Loan Document under which they arise, regardless
of any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of any Secured Party with respect
thereto. The liability of the Guarantor under this Guaranty shall be absolute,
unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of any other
Loan Document;
(b) the failure of any Secured Party
(i) to assert any claim or demand or to enforce any right or
remedy against the Borrower, any other Obligor or any other Person
(including any other guarantor) under the provisions of any Loan
Document or otherwise, or
(ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any Obligations of the
Borrower or any other Obligor;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Borrower or any other
Obligor, or any other extension, compromise or renewal of any Obligation
of the Borrower or any other Obligor;
(d) any reduction, limitation, impairment or termination of the
Obligations of the Borrower or any other Obligor for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and the Guarantor hereby waives any right to or
claim of) any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality, nongenuineness,
irregularity, compromise, unenforceability of, or any other event or
occurrence affecting, the Obligations of the Borrower, any other Obligor
or otherwise;
(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of the Credit Agreement
or other Loan Document;
(f) any addition, exchange, release, surrender or non-perfection of
any collateral, or any amendment to or waiver or release or addition of,
or consent to departure from, any other guaranty, held by any Secured
Party securing any of the Obligations of the Borrower or any other
Obligor; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the Borrower,
any other Obligor, any surety or any guarantor.
SECTION 2.4. Reinstatement, etc. The Guarantor agrees that this Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Obligations is rescinded or
must otherwise be restored by any Secured Party, upon the insolvency, bankruptcy
or reorganization (or similar event) of the Borrower, any other Obligor or
otherwise, all as though such payment had not been made.
SECTION 2.5. Waiver, etc. The Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of the Borrower or any other Obligor and this Guaranty and any
requirement that any Secured Party protect, secure, perfect or insure any
security interest or Lien, or any property subject thereto, or exhaust any right
or take any action
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against the Borrower, any other Obligor or any other Person (including any other
guarantor) or entity or any collateral securing the Obligations of the Borrower
or any other Obligor, as the case may be.
SECTION 2.6. Postponement of Subrogation, etc. The Guarantor will not
exercise any rights which it may acquire by way of rights of subrogation under
this Guaranty, by any payment made hereunder or otherwise (not including
payments expressly permitted to be made under the Credit Agreement) until the
prior payment, in full and in cash, of all Obligations of the Borrower and each
other Obligor, the termination or expiration of all Letters of Credit, the
termination of all Rate Protection Agreements and the termination of all
Commitments. Any amount paid to the Guarantor on account of any such subrogation
rights prior to the payment in full of all Obligations of the Borrower and each
other Obligor shall be held in trust for the benefit of the Secured Parties and
shall immediately be paid to the Administrative Agent for the benefit of the
Secured Parties and credited and applied against the Obligations of the Borrower
and each other Obligor, whether matured or unmatured, in accordance with the
terms of the Credit Agreement; provided, however, that if
(a) the Guarantor has made payment to the Secured Parties of all or
any part of the Obligations of the Borrower or any other Obligor, and
(b) the Termination Date has occurred,
each Secured Party agrees that, at the Guarantor's request and expense, the
Administrative Agent, on behalf of the Secured Parties, will execute and deliver
to the Guarantor appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by subrogation to
the Guarantor of an interest in the Obligations of the Borrower and each other
Obligor resulting from such payment by the Guarantor. In furtherance of the
foregoing, prior to the Termination Date, the Guarantor shall refrain from
taking any action or commencing any proceeding against the Borrower or any other
Obligor (or its successors or assigns, whether in connection with a bankruptcy
proceeding or otherwise) to recover any amounts in the respect of payments made
under this Guaranty to any Secured Party.
SECTION 2.7. Successors, Transferees and Assigns; Transfers of Notes, etc.
This Guaranty shall:
(a) be binding upon the Guarantor, and his successors, transferees,
assigns, estate, heirs and personal representatives; and
(b) inure to the benefit of and be enforceable by the Administrative
Agent and each other Secured Party.
Without limiting the generality of the foregoing clause (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Credit Extension
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all rights and benefits in respect thereof granted
to such Lender under any Loan Document (including this Guaranty) or otherwise,
subject, however, to any contrary provisions in such assignment or transfer, and
to the provisions of Section 10.11 and Article IX of the Credit Agreement.
SECTION 2.8. Payments; Application. The Guarantor hereby agrees with each
Secured Party as follows:
(a) All payments made by the Guarantor hereunder will be made in
Dollars to the Administrative Agent, without set-off, counterclaim or
other defense and in accordance with Sections 4.6, 4.7 and 4.9 of the
Credit Agreement, free and clear of and without deduction for any
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Taxes, the Guarantor hereby agreeing to comply with and be bound by the
provisions of Sections 4.6, 4.7 and 4.9 of the Credit Agreement in respect
of all payments made by him hereunder and the provisions of which Sections
are hereby incorporated into and made a part of this Guaranty by this
reference as if set forth herein; provided that references to the
"Borrower" in such Sections shall be deemed to be references to the
Guarantor, and references to "this Agreement" shall be deemed to be
references to this Guaranty.
(b) All payments made hereunder shall be applied upon receipt (i)
first, to the payment of all Obligations owing to the Administrative
Agent; (ii) second, after payment in full of the amounts specified in
clause (b)(i), to the ratable payment of all other Obligations (other than
Hedging Obligations) owing to the Secured Parties; (iii) third, after
payment in full of the amounts specified in clauses (b)(i) and (b)(ii), to
the ratable payment of all Hedging Obligations with Lenders (at the time
of creation thereof or thereafter becoming Lenders); and (iv) fourth,
after payment in full of the amounts specified in clauses (b)(i), (b)(ii),
and (b)(iii), and following the Termination Date, to the Guarantor or any
other Person lawfully entitled to receive such surplus.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
In order to induce the Secured Parties to enter into the Credit
Agreement and make Credit Extensions thereunder, and to induce Secured Parties
to enter into Rate Protection Agreements, the Guarantor represents and warrants
to each Secured Party as set forth in this Article.
SECTION 3.1. Competency. The Guarantor, at the time of executing this
Guaranty, is over the age of 18 years and is of sound mind, memory and
understanding and not under any restraint or in any respect incompetent to enter
into this Guaranty and the Xxxxxxxxxx Security Agreement.
SECTION 3.2. Non-Contravention, Etc. The execution, delivery and
performance by the Guarantor of this Guaranty and the Xxxxxxxxxx Security
Agreement do not contravene or result in a default under (a) any contractual
restriction binding on or affecting the Guarantor, (b) any court decree or order
binding on or affecting the Guarantor or (c) any law or governmental regulation
binding on or affecting the Guarantor.
SECTION 3.3. Government Approval, Regulation, Etc. No authorization or
approval or other action by, and no notice to or filing with, any Governmental
Authority or other Person (other than those that have been, or on the Effective
Date will be, duly obtained or made and which are, or on the Effective Date will
be, in full force and effect) is required for the consummation of this Guaranty
and the Xxxxxxxxxx Security Agreement or the due execution, delivery or
performance by the Guarantor of this Guaranty or the Xxxxxxxxxx Security
Agreement.
SECTION 3.4. Validity, Etc. This Guaranty and the Xxxxxxxxxx Security
Agreement have been duly executed and delivered and constitute the legal, valid
and binding obligations of the Guarantor, enforceable against the Guarantor in
accordance with their respective terms (except, in any case, as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws from time to time in effect affecting creditors'
rights generally and by general principles of equity).
SECTION 3.5. Financial Information. The financial statements of the
Guarantor furnished to the Administrative Agent pursuant to Section 4.1.1
present fairly the financial condition of the Guarantor as at the dates thereof.
There are no material liabilities of the Guarantor of any kind whatsoever,
whether
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accrued, contingent, absolute, determined, determinable, or otherwise, and there
is no existing condition, situation or set of circumstances which could
reasonably be expected to result in such a liability, other than those
liabilities provided for or disclosed in the most recently delivered financial
statements.
SECTION 3.6. No Material Adverse Change. There has been no material
adverse change in the net worth, assets, financial condition, or prospective
financial position of the Guarantor since December 31, 2000.
Section 3.7. Accuracy of Information. None of the factual information
heretofore or contemporaneously furnished in writing to the Administrative Agent
by or on behalf of the Guarantor in connection with this Guaranty or any other
Loan Document contains any untrue statement of a material fact, or omits to
state any material fact necessary to make any information not misleading, and no
other factual information hereafter furnished in connection with this Guaranty
or any Loan Document by or on behalf of Guarantor to the Administrative Agent
will contain any untrue statement of a material fact or will omit to state any
material fact necessary to make any information not misleading on the date as of
which such information is dated or certified.
SECTION 3.8. Priority of Security Interests. The Liens granted to the
Administrative Agent in the Collateral (as defined in the Xxxxxxxxxx Security
Agreement) are first priority (or the local equivalent thereof) security
interests and no Liens exist on any of the collateral described above other than
the Liens created in favor of the Administrative Agent pursuant to a Loan
Document.
SECTION 3.9. Further Assurances. The Guarantor represents that he has
knowledge of the Borrower's and each other Obligor's financial condition and
affairs and that he has adequate means to obtain from the Borrower and each
other Obligor on an ongoing basis information relating thereto and to the
Borrower's and such Obligor's ability to pay and perform the Obligations, and
agrees to assume the responsibility for remaining informed as to such matters
for so long as this Guaranty is in effect. The Guarantor acknowledges and agrees
that the Secured Parties shall have no obligation to investigate the financial
condition or affairs of any Obligor for the benefit of the Guarantor nor to
advise the Guarantor of any fact respecting, or any change in, the financial
condition or affairs of the Borrower or any other Obligor that might become
known to any Secured Party at any time, whether or not such Secured Party knows
or believes or has reason to know or believe that any such fact or change is
unknown to the Guarantor, or might (or does) materially increase the risk of the
Guarantor as guarantor, or might (or would) affect the willingness of the
Guarantor to continue as a guarantor of the Obligations.
ARTICLE IV
COVENANTS, ETC.
SECTION 4.1. Covenants. The Guarantor covenants and agrees that at all
times prior to the Termination Date he will perform or cause to be performed the
obligations set forth below.
SECTION 4.1.1. Financial Information, Reports, Notices, Etc. The Guarantor
will furnish or cause to be furnished to the Administrative Agent copies of the
following financial statements, reports, notices and information (all in form
reasonably satisfactory to the Administrative Agent):
(a) promptly after becoming available and in any event within 90 days
after the end of each calendar year, a copy of the balance sheet of the
Guarantor and the related statements of income and cash flow of the Guarantor
for such calendar year setting forth in comparative form the figures for the
immediately preceding calendar year, such annual statements to be audited
(without any Impermissible Qualification) by independent public accountants
acceptable to the Administrative Agent;
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(b) such other financial and other information related to the Guarantor
and the transactions contemplated by the Loan Documents as the Administrative
Agent may from time to time reasonably request.
SECTION 4.1.2. Collateral Accounts, Etc. The Guarantor will maintain an
amount equal to at least $20,000,000 in the Collateral Account (as defined in
the Xxxxxxxxxx Security Agreement) as of the last Business Day of each Fiscal
Quarter.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Loan Document. This Guaranty is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions thereof, including Article X thereof.
SECTION 5.2. Binding on Successors, Transferees and Assigns; Assignment.
In addition to, and not in limitation of, Section 2.7, this Guaranty shall be
binding upon the Guarantor and his successors, transferees, assigns, estate,
heirs and personal representatives and shall inure to the benefit of and be
enforceable by each Secured Party and their respective successors, transferees
and assigns (to the full extent provided pursuant to Section 2.7); provided,
however, that the Guarantor may not assign any of his obligations hereunder
without the prior written consent of the Required Lenders.
SECTION 5.3. Amendments, etc. No amendment to or waiver of any provision
of this Guaranty, nor consent to any departure by the Guarantor herefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Guarantor and the Administrative Agent (on behalf of the Lenders or the Required
Lenders, as the case may be) and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
SECTION 5.4. Notices. All notices and other communications provided for
hereunder shall be in writing (including telegraphic communication) and, mailed
or telecopied or delivered, if to the Guarantor, at the address or facsimile
number of the Guarantor specified on the signature page hereto, and if to to the
Administrative Agent, at its address or facsimile number specified in the Credit
Agreement, or, in either case, at such other address or facsimile number as may
be designated by any such party in a notice to the other parties. All such
notices and other communications, when mailed and properly addressed with
postage prepaid or if properly addressed and sent by pre-paid courier service,
shall be deemed given when received; any such notice or communication, if
transmitted by telecopier, shall be deemed given when transmitted and
electronically confirmed.
SECTION 5.5. No Waiver; Remedies. In addition to, and not in limitation
of, Section 2.3 and Section 2.5, no failure on the part of any Secured Party to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 5.6. Captions. Section captions used in this Guaranty are for
convenience of reference only, and shall not affect the construction of this
Guaranty.
SECTION 5.7. Setoff. In addition to, and not in limitation of, any rights
of any Secured Party under applicable law, each Secured Party, upon the
occurrence and continuance of any Event of Default described in any of clauses
(a) through (d) of Section 8.1.9 of the Credit Agreement and, to the extent that
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the obligations of this Guaranty cannot be satisfied from the Collateral
Account, shall have the right to appropriate and apply to the payment of the
obligations of the Guarantor owing to it hereunder, whether or not then due, and
the Guarantor hereby grants to each Secured Party a continuing security interest
in, any and all balances, credits, deposits, accounts or moneys of the Guarantor
then or thereafter maintained with such Secured Party or any agent or bailee for
such Secured Party; provided, however, that any such appropriation and
application shall be subject to the provisions of Section 4.8 of the Credit
Agreement.
SECTION 5.8. Severability. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such 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.
SECTION 5.9. Governing Law, Entire Agreement, etc. THIS GUARANTY SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). THIS GUARANTY AND THE OTHER
LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN
OR ORAL, WITH RESPECT THERETO.
SECTION 5.10. Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY OR
ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE SECURED PARTIES OR THE GUARANTOR
SHALL BE BROUGHT AND MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK, NEW YORK
COUNTY OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY PROPERTY
MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH PROPERTY MAY BE FOUND. THE GUARANTOR FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR
NOTICES SPECIFIED IN SECTION 10.2 OF THE CREDIT AGREEMENT. THE GUARANTOR HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH HE MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT THE GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION
OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO HIMSELF OR HIS PROPERTY, THE GUARANTOR HEREBY IRREVOCABLY WAIVES TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW SUCH IMMUNITY IN RESPECT OF HIS
OBLIGATIONS UNDER THIS GUARANTY AND THE OTHER LOAN DOCUMENTS.
SECTION 5.11. Waiver of Jury Trial. THE ADMINISTRATIVE AGENT ON BEHALF OF
THE SECURED PARTIES AND THE GUARANTOR HEREBY KNOWINGLY,
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VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY OR HE MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE SECURED PARTIES OR THE GUARANTOR. THE ADMINISTRATIVE AGENT ON BEHALF OF THE
SECURED PARTIES AND THE GUARANTOR EACH ACKNOWLEDGES AND AGREES THAT THEY AND HE
HAVE RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS ENTERING INTO THE CREDIT
AGREEMENT.
SECTION 5.12. Counterparts. This Guaranty may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
SECTION 5.13. Acknowledgement and Agreement. The Guarantor hereby
expressly acknowledges and agrees that (a) the provisions of the final two
sentences of the third paragraph of the Commitment Letter dated September 28,
2001 between the Borrower and the Arranger shall survive the execution and
delivery of this Guaranty and the Guarantor agrees promptly to take all action
at its expense reasonably necessary to effectuate such provisions and (b) the
representations and warranties made by the Guarantor in any Loan Document shall
survive the execution and delivery of such Loan Document.
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IN WITNESS WHEREOF, the Guarantor has executed and delivered this
Guaranty as of the date first above written.
GUARANTOR:
/s/ Xxxxx Xxxxxxxxxx
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Xxxxx Xxxxxxxxxx
Address: X.X. Xxx 0000
Xxxx Xxxxx, XX 00000
Acknowledge and Accepted:
HSBC BANK USA,
as Administrative Agent
By /s/ Xxxxx Xxxxxx
--------------------
Title: Vice President
STATE OF FLORIDA )
) ss.
COUNTY OF ________________ )
On November 28, 2001 before me, Xxxxxxx Xxxxxxxx, a Notary Public in
and for said State, personally appeared XXXXX XXXXXXXXXX, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same.
WITNESS my hand and official seal.
/s/ Xxxxxxx Xxxxxxxx
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Signature
Annex I
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Disclosures
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