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EXHIBIT 10.2
PARENT GUARANTEE AGREEMENT dated as of June
30, 1999, between XXXXXXX ELECTRONICS, INC., a
Delaware corporation (the "Guarantor" or the "Parent
Borrower") and THE CHASE MANHATTAN BANK, a New York
banking corporation ("Chase"), as administrative
agent (in such capacity, the "Administrative Agent")
for the Secured Parties (as defined in the Credit
Agreement referred to below).
Reference is made to the Credit Agreement dated as of June 28, 1999
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Parent Borrower, the lenders from time to time party
thereto (the "Lenders"), Chase, as Administrative Agent, Swingline Lender and
as issuing bank (in such capacity, the "Issuing Bank") and Xxxxxx Xxxxxxx
Senior Funding, Inc., as Syndication Agent. Capitalized terms used herein and
not defined herein shall have the meanings assigned to such terms in the Credit
Agreement.
The Lenders have agreed to make Loans to the Foreign Borrowers and the
Issuing Bank has agreed to issue Letters of Credit for the account of the
Foreign Borrowers pursuant to, and upon the terms and subject to the conditions
specified in, the Credit Agreement. The obligations of the Lenders to make
Loans and of the Issuing Bank to issue Letters of Credit are conditioned on,
among other things, the execution and delivery by the Guarantor of a Guarantee
Agreement in the form hereof. As consideration therefor and in order to induce
the Lenders to make Loans and the Issuing Bank to issue Letters of Credit, the
Guarantor is willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. The Guarantor unconditionally guarantees as a
primary obligor and not merely as a surety, (a) the due and punctual payment by
each Foreign Borrower of (i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (ii) each payment required to be made by such Foreign Borrower under
the Credit Agreement in respect of any Letter of Credit, when and as due,
including payments in respect of reimbursement of disbursements, interest
thereon and obligations to provide cash collateral and (iii) all other monetary
obligations, including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of such Foreign Borrower to the Secured Parties
under the Credit Agreement and the other Loan Documents, (b) the due and
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punctual performance of all covenants, agreements, obligations and liabilities
of each Foreign Borrower under or pursuant to the Credit Agreement and the
other Loan Documents, (c) the due and punctual payment and performance of all
the covenants, agreements, obligations and liabilities of each Foreign
Subsidiary Guarantor under or pursuant to the Loan Documents and (d) the due
and punctual payment and performance of all obligations of each Loan Party
under each Hedging Agreement entered into with any counterparty that was a
Lender or an Affiliate of a Lender at the time such Hedging Agreement was
entered into (all the monetary and other obligations described in the preceding
clauses (a) through (d) being collectively called the "Foreign Borrower
Obligations"). The Guarantor further agrees that the Foreign Borrower
Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Foreign Borrower Obligation.
SECTION 2. Foreign Borrower Obligations Not Waived. To the fullest
extent permitted by applicable law, the Guarantor waives presentment to, demand
of payment from and protest to the Foreign Borrower of any of the Foreign
Borrower Obligations, and also waives notice of acceptance of its guarantee and
notice of protest for nonpayment. To the fullest extent permitted by
applicable law, the obligations of the Guarantor hereunder shall not be
affected by (a) the failure of the Administrative Agent or any other Secured
Party to assert any claim or demand or to enforce or exercise any right or
remedy against any Foreign Borrower or any other guarantor of the Foreign
Borrower Obligations under the provisions of the Credit Agreement, any other
Loan Document or otherwise, (b) any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions of, this
Agreement, any other Loan Document, any guarantee or any other agreement, or
(c) the failure to perfect any security interest in, or the release of, any of
the security held by or on behalf of the Administrative Agent or any other
Secured Party.
SECTION 3. Security. The Guarantor authorizes the Administrative
Agent and each of the other Secured Parties, to (a) take and hold, as provided
in the Security Agreement, security for the payment of this Guarantee and the
Foreign Borrower Obligations and exchange, enforce, waive and release any such
security, (b) apply such security and direct the order or manner of sale
thereof as provided in the Security Agreement and (c) release or substitute any
one or more endorsees, other guarantors or other obligors. To the extent that
security is given for the payment of this guarantee or the Foreign Borrower
Obligations, the Guarantor authorizes the Administrative Agent and the Lenders
to apply such security and direct the order or manner of sale thereof as they
in their sole discretion may determine. The Guarantor further authorizes the
Administrative Agent to release or substitute any one or more endorsees, other
guarantors or other obligors.
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SECTION 4. Guarantee of Payment. The Guarantor further agrees that
its guarantee constitutes a guarantee of payment when due and not of
collection, and waives any right to require that any resort be had by the
Administrative Agent or any other Secured Party to any of the security held for
payment of the Foreign Borrower Obligations or to any balance of any deposit
account or credit on the books of the Administrative Agent or any other Secured
Party in favor of any Foreign Borrower or any other Person.
SECTION 5. No Discharge or Diminishment of Guarantee. The
obligations of the Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason (other than the
indefeasible payment in full in cash of the Foreign Borrower Obligations),
including any claim of waiver, release, surrender, alteration or compromise of
any of the Foreign Borrower Obligations, and shall not be subject to any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the Foreign Borrower
Obligations or otherwise. Without limiting the generality of the foregoing,
the obligations of the Guarantor hereunder shall not be discharged or impaired
or otherwise affected by the failure of the Administrative Agent or any other
Secured Party to assert any claim or demand or to enforce any remedy under the
Credit Agreement, any other Loan Document or any other agreement, by any waiver
or modification of any provision of any thereof, by any default, failure or
delay, wilful or otherwise, in the performance of the Foreign Borrower
Obligations, or the failure to perfect any security interest in, or the release
of, any of the security held by or on behalf of the Administrative Agent or any
other Secured Party, or by any other act or omission that may or might in any
manner or to any extent vary the risk of the Guarantor or that would otherwise
operate as a discharge of the Guarantor as a matter of law or equity (other
than the indefeasible payment in full in cash of all the Foreign Borrower
Obligations).
SECTION 6. Defenses of Foreign Borrower Waived. To the fullest
extent permitted by applicable law, the Guarantor waives any defense based on
or arising out of any defense of the Foreign Borrower or the unenforceability
of the Foreign Borrower Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of the Foreign Borrower, other than
the final and indefeasible payment in full in cash of the Foreign Borrower
Obligations. The Administrative Agent and the other Secured Parties may, at
their election, foreclose on any security held by one or more of them by one or
more judicial or nonjudicial sales, accept an assignment of any such security
in lieu of foreclosure, compromise or adjust any part of the Foreign Borrower
Obligations, make any other accommodation with the Foreign Borrower or any
other guarantor or exercise any other right or remedy available to them against
the Foreign Borrower or any other guarantor, without affecting or impairing in
any way the liability of the Guarantor hereunder except to the extent the
Foreign Borrower Obligations have been fully, finally and indefeasibly paid in
full in cash. Pursuant to applicable law, the Guarantor waives any defense
arising out of any such election even though such election operates, pursuant
to applicable law, to impair or to extinguish any right of
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reimbursement or subrogation or other right or remedy of the Guarantor against
the Foreign Borrower or any other guarantor, as the case may be, or any
security.
SECTION 7. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the Administrative
Agent or any other Secured Party has at law or in equity against the Guarantor
by virtue hereof, upon the failure of the Foreign Borrower or any other Loan
Party to pay any Foreign Borrower Obligation when and as the same shall become
due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, the Guarantor hereby promises to and will forthwith pay, or cause to
be paid, to the Administrative Agent or such other Secured Party as designated
thereby in cash the amount of such unpaid Foreign Borrower Obligations. Upon
payment by the Guarantor of any sums to the Administrative Agent or any Secured
Party as provided above, all rights of the Guarantor against the Foreign
Borrower arising as a result thereof by way of right of subrogation,
contribution, reimbursement, indemnity or otherwise shall in all respects be
subordinate and junior in right of payment to the prior indefeasible payment in
full in cash of all the Foreign Borrower Obligations. In addition, any
indebtedness of the Foreign Borrower now or hereafter held by the Guarantor is
hereby subordinated in right of payment to the prior payment in full of the
Foreign Borrower Obligations during the existence of an Event of Default. If
any amount shall erroneously be paid to the Guarantor on account of (i) such
subrogation, contribution, reimbursement, indemnity or similar right or (ii)
any such indebtedness of the Foreign Borrower, such amount shall be held in
trust for the benefit of the Secured Parties and shall forthwith be paid to the
Administrative Agent to be credited against the payment of the Foreign Borrower
Obligations, whether matured or unmatured, in accordance with the terms of the
Loan Documents.
SECTION 8. Information. The Guarantor assumes all responsibility for
being and keeping itself informed of each Foreign Borrower's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Foreign Borrower Obligations and the nature, scope and extent
of the risks that the Guarantor assumes and incurs hereunder, and agrees that
none of the Administrative Agent or the other Secured Parties will have any
duty to advise the Guarantor of information known to it or any of them
regarding such circumstances or risks.
SECTION 9. Representations and Warranties. The Guarantor represents
and warrants as to itself that all representations and warranties relating to
it contained in the Credit Agreement are true and correct.
SECTION 10. Termination. The guarantees made hereunder (a) shall
terminate when all the Obligations (other than any right to indemnification of
any Secured Party with respect to any matter in respect of which no claim has
been asserted and is outstanding) have been indefeasibly paid in full and the
Lenders have no further commitment to lend, each LC Exposure has been reduced
to zero and the Issuing Bank has no further commitment to issue Letters of
Credit under the Credit Agreement and (b)
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shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Foreign Borrower Obligation is
rescinded or must otherwise be restored by any Secured Party or the Guarantor
upon the bankruptcy or reorganization of the Foreign Borrower, the Guarantor or
otherwise.
SECTION 11. Binding Effect; Several Agreement; Assignments. Whenever
in this Agreement any of the parties hereto is referred to, such reference
shall be deemed to include the successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of the Guarantor that are
contained in this Agreement shall bind and inure to the benefit of each party
hereto and their respective successors and assigns. This Agreement shall
become effective as to the Guarantor when a counterpart hereof executed on
behalf of the Guarantor shall have been delivered to the Administrative Agent,
and a counterpart hereof shall have been executed on behalf of the
Administrative Agent, and thereafter shall be binding upon the Guarantor and
the Administrative Agent and their respective successors and assigns, and shall
inure to the benefit of the Guarantor, the Administrative Agent and the other
Secured Parties, and their respective successors and assigns, except that the
Guarantor shall have no right to assign its rights or obligations hereunder or
any interest herein (and any such attempted assignment shall be void).
SECTION 12. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent in exercising any power or right hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuance of steps to enforce such a right
or power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative Agent
hereunder and of the other Secured Parties under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or consent to any
departure by the Guarantor therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on the Guarantor in any case shall entitle the
Guarantor to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Administrative Agent and the Guarantor with the prior written consent of
the Required Lenders (and such other consent as may be required by Section 9.02
of the Credit Agreement).
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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SECTION 14. Notices. All communications and notices hereunder shall
be in writing and given as provided in Section 9.01 of the Credit Agreement.
All communications and notices hereunder to the Guarantor shall be given to it
in care of the Parent Borrower at the address set forth in the Credit
Agreement.
SECTION 15. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by the Guarantor herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Administrative Agent and the other Secured Parties
and shall survive the making by the Lenders of the Loans regardless of any
investigation made by the Secured Parties or on their behalf, and shall
continue in full force and effect as long as the principal of or any accrued
interest on any Loan or any other fee or amount payable under this Agreement or
any other Loan Document is outstanding and unpaid or the LC Exposure does not
equal zero and as long as the Commitments and the LC Commitment have not been
terminated.
(b) In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 16. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract, and shall become effective
as provided in Section 11. Delivery of an executed signature page to this
Agreement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 17. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXXXXX ELECTRONICS, INC.
By /s/ REG GARRATT
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Name: Reg Garratt
Title: CHM/CEO
THE CHASE MANHATTAN BANK, as
Administrative Agent,
By /s/ XXXXXXX XXXXX
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Name: Xxxxxxx Xxxxx
Title: Vice President
