EXHIBIT D
GUARANTEE AGREEMENT dated as of August 25, 1997, among each
person listed on the signature page hereto (each such person
individually, a "Guarantor" and collectively, the "Guarantors") with
respect to the obligations of TEL-SAVE HOLDINGS, INC., a Delaware
corporation (the "Borrower"), to SALOMON BROTHERS HOLDING COMPANY INC,
a Delaware corporation, as collateral agent (the "Collateral Agent")
for the Secured Parties (as defined in the Credit Agreement referred to
below).
Reference is made to the Credit Agreement dated as of August
25, 1997 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, the lenders from
time to time party thereto (the "Lenders") and Salomon Brothers Holding
Company Inc, as administrative agent for the Lenders and the Collateral
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 Borrower, and
pursuant to the Credit Agreement, an Issuing Bank may agree to issue
Letters of Credit for the account of the Borrower, 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 any
Issuing Bank to issue Letters of Credit are conditioned on, among other
things, the execution and delivery by the Guarantors of a Guarantee
Agreement in the form hereof. As consideration therefor and in order to
induce the Lenders to make Loans and any Issuing Bank to issue Letters
of Credit, the Guarantors are willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. Each Guarantor unconditionally
guarantees, jointly with the other Guarantors and severally, as a
primary obligor and not merely as a surety, (a) the due and punctual
payment 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 the 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 the Loan Parties to the Secured Parties under the
Credit Agreement and the other Loan Documents and (b) the due and
punctual performance of all covenants,
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agreements, obligations and liabilities of the Loan Parties under or
pursuant to the Credit Agreement and the other Loan Documents and (c)
unless otherwise agreed upon in writing by the applicable Lender party
thereto, all obligations of the Borrower, monetary or otherwise, under
each Interest Rate Protection Agreement entered into with a
counterparty that was a Lender at the time such Interest Rate
Protection Agreement was entered into (all the monetary and other
obligations referred to in the preceding clauses (a) and (b) being
collectively called the "Obligations"). Each Guarantor further agrees
that the 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 Obligation.
Anything contained in this Agreement to the contrary
notwithstanding, the obligations of each Guarantor hereunder shall be
limited to a maximum aggregate amount equal to the greatest amount that
would not render such Guarantor's obligations hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of
Title 11 of the United States Code or any provisions of applicable
state law (collectively, the "Fraudulent Transfer Laws"), in each case
after giving effect to all other liabilities of such Guarantor,
contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
Guarantor (a) in respect of intercompany indebtedness to the Borrower
or Affiliates of the Borrower to the extent that such indebtedness
would be discharged in an amount equal to the amount paid by such
Guarantor hereunder and (b) under any Guarantee of senior unsecured
indebtedness or Indebtedness subordinated in right of payment to the
Obligations which Guarantee contains a limitation as to maximum amount
similar to that set forth in this paragraph, pursuant to which the
liability of such Guarantor hereunder is included in the liabilities
taken into account in determining such maximum amount) and after giving
effect as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to
subrogation, contribution, reimbursement, indemnity or similar rights
of such Guarantor pursuant to (i) applicable law or (ii) any agreement
providing for an equitable allocation among such Guarantor and other
Affiliates of the Borrower of obligations arising under Guarantees by
such parties (including the Indemnity, Subrogation and Contribution
Agreement).
Notwithstanding anything else herein, the obligations of
Xxxxxx Xxxxxxxx hereunder will be limited-recourse obligations payable
only from the Collateral pledged under the Pledged Agreement of even
date herewith between Xxxxxx Xxxxxxxx and the Collateral Agent.
SECTION 2. Obligations Not Waived. To the fullest extent
permitted by applicable law, each Guarantor waives presentment to,
demand of payment from and protest to the Borrower of any of the
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 each Guarantor hereunder shall not
be affected by (a) the failure of the Collateral Agent or any other
Secured Party to assert any claim or demand or to enforce or exercise
any right or remedy against the Borrower or any other Guarantor under
the provisions of the Credit Agreement, any other Loan Document or
otherwise, (b) any
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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, including with respect
to any other Guarantor under this 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 Collateral Agent or any other
Secured Party.
SECTION 3. Security. Each of the Guarantors authorizes the
Collateral Agent and each of the other Secured Parties, to (a) take and
hold security for the payment of this Guarantee and the Obligations and
exchange, enforce, waive and release any such security, (b) apply such
security and direct the order or manner of sale thereof as they in
their sole discretion may determine and (c) release or substitute any
one or more endorsees, other guarantors of other obligors.
SECTION 4. Guarantee of Payment. Each 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 Collateral Agent or any other Secured Party to any of the
security held for payment of the Obligations or to any balance of any
deposit account or credit on the books of the Collateral Agent or any
other Secured Party in favor of the Borrower or any other person.
SECTION 5. No Discharge or Diminishment of Guarantee. The
obligations of each 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 Obligations),
including any claim of waiver, release, surrender, alteration or
compromise of any of the 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
Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Guarantor hereunder shall not be
discharged or impaired or otherwise affected by the failure of the
Collateral 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, willful
or otherwise, in the performance of the Obligations, or by any other
act or omission that may or might in any manner or to any extent vary
the risk of any Guarantor or that would otherwise operate as a
discharge of each Guarantor as a matter of law or equity (other than
the indefeasible payment in full in cash of all the Obligations).
SECTION 6. Defenses of Borrower Waived. To the fullest extent
permitted by applicable law, each of the Guarantors waives any defense
based on or arising out of any defense of the Borrower or the
unenforceability of the Obligations or any part thereof from any cause,
or the cessation from any cause of the liability of the Borrower, other
than the final and indefeasible payment in full in cash of the
Obligations. The Collateral 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 Obligations, make any
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other accommodation with the Borrower or any other guarantor or
exercise any other right or remedy available to them against the
Borrower or any other guarantor, without affecting or impairing in any
way the liability of any Guarantor hereunder except to the extent the
Obligations have been fully, finally and indefeasibly paid in cash.
Pursuant to applicable law, each of the Guarantors 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
reimbursement or subrogation or other right or remedy of such Guarantor
against the Borrower or any other Guarantor or 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
Collateral Agent or any other Secured Party has at law or in equity
against any Guarantor by virtue hereof, upon the failure of the
Borrower or any other Loan Party to pay any Obligation when and as the
same shall become due, whether at maturity, by acceleration, after
notice of prepayment or otherwise, each Guarantor hereby promises to
and will forthwith pay, or cause to be paid, to the Collateral Agent or
such other Secured Party as designated thereby in cash the amount of
such unpaid Obligations. Upon payment by any Guarantor of any sums to
the Collateral Agent or any Secured Party as provided above, all rights
of such Guarantor against the 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
Obligations. In addition, any indebtedness of the Borrower now or
hereafter held by any Guarantor is hereby subordinated in right of
payment to the prior payment in full of the Obligations. If any amount
shall erroneously be paid to any Guarantor on account of (i) such
subrogation, contribution, reimbursement, indemnity or similar right or
(ii) any such indebtedness of the Borrower, such amount shall be held
in trust for the benefit of the Secured Parties and shall forthwith be
paid to the Collateral Agent to be credited against the payment of the
Obligations, whether matured or unmatured, in accordance with the terms
of the Loan Documents.
SECTION 8. Information. Each of the Guarantors assumes all
responsibility for being and keeping itself informed of the Borrower's
financial condition and assets, and of all other circumstances bearing
upon the risk of nonpayment of the Obligations and the nature, scope
and extent of the risks that such Guarantor assumes and incurs
hereunder, and agrees that none of the Collateral Agent or the other
Secured Parties will have any duty to advise any of the Guarantors of
information known to it or any of them regarding such circumstances or
risks.
SECTION 9. Representations, Warranties and Covenants. Each of
the Guarantors represents and warrants as to itself that all
representations and warranties relating to it contained in the Credit
Agreement are true and correct. Each of the Guarantors that is a
Subsidiary agrees to comply with all covenants in the Credit Agreement
that are applicable to it as fully as if it were a party to the Credit
Agreement, and any Guarantor becoming a Guarantor after the date hereof
that is not a Subsidiary agrees to comply with the restrictions in
Sections 6.01 and 6.02 of the Credit Agreement as if it were a
Subsidiary.
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SECTION 10. Termination. The Guarantees made hereunder (a)
shall terminate when all the Obligations have been indefeasibly paid in
full and the Lenders have no further commitment to lend under the
Credit Agreement, the L/C Exposure has been reduced to zero and any
Issuing Bank has no further obligation to issue Letters of Credit under
the Credit Agreement and (b) shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part
thereof, of any Obligation is rescinded or must otherwise be restored
by any Secured Party or any Guarantor upon the bankruptcy or
reorganization of the Borrower, any 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 Guarantors 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 any
Guarantor when a counterpart hereof executed on behalf of such
Guarantor shall have been delivered to the Collateral Agent, and a
counterpart hereof shall have been executed on behalf of the Collateral
Agent, and thereafter shall be binding upon such Guarantor and the
Collateral Agent and their respective successors and assigns, and shall
inure to the benefit of such Guarantor, the Collateral Agent and the
other Secured Parties, and their respective successors and assigns,
except that no Guarantor shall have the right to assign its rights or
obligations hereunder or any interest herein (and any such attempted
assignment shall be void). If all of the capital stock of a Guarantor
is sold, transferred or otherwise disposed of pursuant to a transaction
permitted by Section 6.05 of the Credit Agreement, such Guarantor shall
be released from its obligations under this Agreement without further
action. This Agreement shall be construed as a separate agreement with
respect to each Guarantor and may be amended, modified, supplemented,
waived or released with respect to any Guarantor without the approval
of any other Guarantor and without affecting the obligations of any
other Guarantor hereunder.
SECTION 12. Waivers; Amendment. (a) No failure or delay of the
Collateral 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 Collateral 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 any 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 any
Guarantor in any case shall entitle such 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 Guarantors with respect to which such waiver,
amendment or modification relates and the Xxxxxxxxxx Xxxxx,
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with the prior written consent of the Required Lenders (except as
otherwise provided in 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.
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 each Guarantor
shall be given to it in care of the Borrower.
SECTION 15. Survival of Agreement; Severability. (a) All
covenants, agreements, representations and warranties made by the
Guarantors 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
Collateral Agent and the other Secured Parties and shall survive the
making by the Lenders of the Loans and the issuance of any Letters of
Credit by any Issuing Bank 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 L/C Exposure does
not equal zero and as long as the Commitments and the L/C 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 1.02 of the Credit Agreement shall
be applicable to this Agreement.
SECTION 18. Jurisdiction; Consent to Service of Process. (a)
Each Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New
York State court or Federal court of the United States
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of America sitting in New York City, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court.
Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Agreement shall affect any right that the
Collateral Agent or any other Secured Party may otherwise have to bring
any action or proceeding relating to this Agreement or the other Loan
Documents against any Guarantor or its properties in the courts of any
jurisdiction.
(b) Each Guarantor hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Agreement or the other Loan Documents in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 14.
Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 19. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT
OR THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE,
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 19.
SECTION 20. Additional Guarantors. Pursuant to Section 5.11 of
the Credit Agreement, each Subsidiary of the Borrower that was not in
existence on the date of the Credit Agreement is required to enter into
this Agreement as a Guarantor upon becoming a Subsidiary. Upon
execution and delivery after the date hereof by the Collateral Agent
and such a Subsidiary of an instrument in the form of Annex 1, such
Subsidiary shall become a Guarantor hereunder with the same force and
effect as if originally named as a Guarantor
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herein. The execution and delivery of any instrument adding an
additional Guarantor as a party to this Agreement shall not require the
consent of any other Guarantor hereunder. The rights and obligations of
each Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Guarantor as a party to this
Agreement.
SECTION 21. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Secured Party is hereby authorized at
any time and from time to time, to the fullest extent permitted by law,
to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other Indebtedness
at any time owing by such Secured Party to or for the credit or the
account of any Guarantor against any or all the obligations of such
Guarantor now or hereafter existing under this Agreement and the other
Loan Documents held by such Secured Party, irrespective of whether or
not such Secured Party shall have made any demand under this Agreement
or any other Loan Document and although such obligations may be
unmatured. The rights of each Secured Party under this Section 21 are
in addition to other rights and remedies (including other rights of
setoff) which such Secured Party may have.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXXXX XXXXXXXX
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TEL-SAVE, INC.
By:
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Name:
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Title:
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EMERGENCY TRANSPORT CORP.
By:
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Name:
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Title:
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TEL-SAVE HOLDINGS OF VIRGINIA, INC.
By:
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Name:
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Title:
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SALOMON BROTHERS HOLDING
COMPANY INC., as Collateral Agent
By:
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Name:
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Title:
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Annex 1 to the
Guarantee Agreement
SUPPLEMENT NO. dated as of , to the Guarantee Agreement
dated as of August 25, 1997, among each of the persons
listed on the signature page thereto (each such person
individually, a "Guarantor" and collectively, the
"Guarantors") with respect to the obligations of TEL-SAVE
HOLDINGS, INC., a Delaware corporation (the "Borrower"), to
SALOMON BROTHERS HOLDING COMPANY INC, a Delaware
corporation, as collateral agent (the "Collateral Agent")
for the Secured Parties (as defined in the Credit Agreement
referred to below).
A. Reference is made to the Credit Agreement dated as of
August 25, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among the Borrower, the lenders
from time to time party thereto (the "Lenders") and Salomon Brothers
Holding Company Inc, as administrative agent for the Lenders and the
Collateral Agent. Capitalized terms used herein and not defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
B. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Guarantee
Agreement and the Credit Agreement.
C. The Guarantors have entered into the Guarantee Agreement in
order to induce the Lenders to make Loans and any Issuing Bank to issue
Letters of Credit. Pursuant to Section 5.11 of the Credit Agreement,
each Subsidiary of the Borrower that was not in existence or not a
Subsidiary on the date of the Credit Agreement is required to enter
into the Guarantee Agreement as a Guarantor upon becoming a Subsidiary.
Section 20 of the Guarantee Agreement provides that additional
Subsidiaries of the Borrower may become Guarantors under the Guarantee
Agreement by execution and delivery of an instrument in the form of
this Supplement. The undersigned Subsidiary of the Borrower (the "New
Guarantor") is executing this Supplement in accordance with the
requirements of the Credit Agreement to become a Guarantor under the
Guarantee Agreement in order to induce the Lenders to make additional
Loans and the Issuing Bank to issue additional Letters of Credit and as
consideration for Loans previously made and any Letters of Credit
previously issued.
Accordingly, the Collateral Agent and the New Guarantor agree
as follows:
SECTION 1. In accordance with Section 20 of the Guarantee
Agreement, the New Guarantor by its signature below becomes a Guarantor
under the Guarantee Agreement with the same force and effect as if
originally named therein as a Guarantor and the New Guarantor hereby
(a) agrees to all the terms and provisions of the Guarantee
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Agreement applicable to it as a Guarantor thereunder and (b) represents
and warrants that the representations and warranties made by it as a
Guarantor thereunder are true and correct on and as of the date hereof.
Each reference to a "Guarantor" in the Guarantee Agreement shall be
deemed to include the New Guarantor. The Guarantee Agreement is hereby
incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the
Collateral Agent and the other Secured Parties that this Supplement has
been duly authorized, executed and delivered by it and constitutes its
legal, valid and binding obligation, enforceable against it in
accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts,
each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Supplement shall
become effective when the Collateral Agent shall have received
counterparts of this Supplement that, when taken together, bear the
signatures of the New Guarantor and the Collateral Agent. Delivery of
an executed signature page to this Supplement by facsimile transmission
shall be as effective as delivery of a manually executed counterpart of
this Supplement.
SECTION 4. Except as expressly supplemented hereby, the
Guarantee Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained
in this Supplement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein and in the Guarantee Agreement shall not in
any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision hereof in a particular
jurisdiction shall not in and of itself affect the validity of such
provision in any other jurisdiction). The parties hereto 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 7. All communications and notices hereunder shall be
in writing and given as provided in Section 14 of the Guarantee
Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it at the address set forth under its
signature below, with a copy to the Borrower.
SECTION 8. The New Guarantor agrees to reimburse the
Collateral Agent for its out-of-pocket expenses in connection with this
Supplement, including the fees, disbursements and other charges of
counsel for the Collateral Agent.
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IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent
have duly executed this Supplement to the Guarantee Agreement as of the
day and year first above written.
[Name of New Guarantor]
By:
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Name:
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Title:
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Address:
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SALOMON BROTHERS HOLDING COMPANY INC, as
Collateral Agent
By:
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Name:
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Title:
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