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EXHIBIT 10.3
SUBSIDIARY GUARANTEE AGREEMENT dated as of
June 30, 1999, among each of the subsidiaries listed
on Schedule I hereto (each such subsidiary
individually, a "Guarantor" and, collectively, the
"Guarantors") of XXXXXXX ELECTRONICS, INC., a
Delaware corporation (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 Borrowers and the Issuing
Bank has agreed to issue Letters of Credit for the account of the Borrowers
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. Each of the Guarantors is a direct or indirect wholly owned
Subsidiary of the Parent Borrower and acknowledges that it will derive
substantial benefit from the making of the Loans by the Lenders and the
issuance of Letters of Credit by the Issuing Bank. 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
Guarantors of a Guarantee Agreement in the form hereof. As consideration
therefor and in order to induce the Lenders to make Loans and the Issuing Banks
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 by each 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 made to such Borrower, 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 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
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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 Borrower to the Secured
Parties under the Credit Agreement and the other Loan Documents, (b) the due
and punctual performance of all covenants, agreements, obligations and
liabilities of each 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 other Loan Party
under or pursuant to this Agreement and the other Loan Documents and (d) the
due and punctual payment and performance of all obligations of each Borrower
and any 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 "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 Parent Borrower or
Affiliates of the Parent 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 Parent Borrower of
obligations arising under Guarantees by such parties (including the Indemnity,
Subrogation and Contribution Agreement).
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 Parent Borrower of any of the Obligations, and also waives
notice of
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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 Administrative Agent
or any other Secured Party to assert any claim or demand or to enforce or
exercise any right or remedy against the Parent Borrower or any other guarantor
of the 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, including with
respect to any other guarantor of the Obligations 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 Administrative Agent or any other Secured
Party.
SECTION 3. Security. Each of the Guarantors 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 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 Obligations, each
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. Each Guarantor further authorizes the Administrative
Agent to release or substitute any one or more endorsees, other guarantors or
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
Administrative 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 Administrative 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
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 Obligations, or the failure to perfect any security
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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 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 Parent 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 Parent Borrower, other than the final and
indefeasible payment in full in cash of the 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 Obligations, make any other accommodation
with the Parent Borrower or any other guarantor or exercise any other right or
remedy available to them against the Parent 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 full in cash. Pursuant to applicable law, each 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
reimbursement or subrogation or other right or remedy of such Guarantor against
the Parent 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 any Guarantor
by virtue hereof, upon the failure of the Parent 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 Administrative 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 Administrative Agent or any Secured Party as provided above,
all rights of such Guarantor against the Parent 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 Parent Borrower now or
hereafter held by any Guarantor is hereby subordinated in right of payment to
the prior payment in full of the Obligations during the existence of an Event
of Default. 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 Parent 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
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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 Parent 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 Administrative 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 and Warranties. 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.
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) 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 Parent 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 Administrative Agent,
and a counterpart hereof shall have been executed on behalf of the
Administrative Agent, and thereafter shall be binding upon such Guarantor and
the Administrative Agent and their respective successors and assigns, and shall
inure to the benefit of such Guarantor, the Administrative 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).
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
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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 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 Administrative Agent and the Guarantor or Guarantors with respect to which
such waiver, amendment or modification is to apply, 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.
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 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 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 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
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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.
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 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 Administrative 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
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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 5.12 of the
Credit Agreement, each Subsidiary Loan Party of the Parent Borrower that was
not in existence or not a Subsidiary Loan Party on the date of the Credit
Agreement is required to enter into this Agreement as a Guarantor upon becoming
a Subsidiary Loan Party. Upon execution and delivery after the date hereof by
the Administrative Agent and such a Subsidiary of an instrument in the form of
Annex 1, such Subsidiary Loan Party shall become a Guarantor hereunder with the
same force and effect as if originally named as a Guarantor 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. After any exercise of such right of setoff, the Secured Party shall
give notice of such exercise to the Administrative Agent and the Parent
Borrower; provided, however, that failure to give such notice shall not in any
way affect the rights of any Secured Party. 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.
THE GUARANTORS LISTED ON
SCHEDULE I HERETO,
By /s/ REG GARRATT
---------------------------
Name: Reg Garratt
Title: CHM/CEO
THE CHASE MANHATTAN BANK, as
Administrative Agent,
By /s/ XXXXXXX XXXXX
---------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
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SCHEDULE I TO THE
SUBSIDIARY GUARANTEE AGREEMENT
GUARANTORS
---------------------------------------------------------------------------------
GUARANTOR ADDRESS
--------- -------
---------------------------------------------------------------------------------
Knowles Intermediate Holding, Inc. 0000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
---------------------------------------------------------------------------------
Emkay Innovative Products, Inc. 0000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
---------------------------------------------------------------------------------
Xxxxxxx Manufacturing Ltd. 0000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
---------------------------------------------------------------------------------
Synchro-Start Products, Inc. 0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, XX 00000
---------------------------------------------------------------------------------
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Annex 1 to the
Guarantee Agreement
SUPPLEMENT NO. [ ] dated as of , to
the Subsidiary Guarantee Agreement dated as of June
30, 1999, among each of the subsidiaries listed on
Schedule I hereto (each such subsidiary individually,
a "Guarantor" and, collectively, the "Guarantors") of
XXXXXXX ELECTRONICS, INC., a Delaware corporation
(the "Parent Borrower"), and THE CHASE MANHATTAN
BANK, a New York banking corporation ("Chase"), as
administrative agent (the "Administrative 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 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.
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 the Issuing Bank to issue Letters of
Credit. Pursuant to Section 5.12 of the Credit Agreement, each Subsidiary Loan
Party of the Parent Borrower that was not in existence or not a Subsidiary Loan
Party on the date of the Credit Agreement is required to enter into the
Guarantee Agreement as a Guarantor upon becoming a Subsidiary Loan Party.
Section 20 of the Guarantee Agreement provides that additional Subsidiaries of
the Parent 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 Parent 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
Letters of Credit previously issued.
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Accordingly, the Administrative 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 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 except for representations and warranties which by their
terms refer to a specific date. 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
Administrative 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, subject to applicable bankruptcy, insolvency, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity regardless of whether considered in a proceeding in equity or at law.
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
Administrative Agent shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the New Guarantor and the
Administrative 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
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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 Parent Borrower.
SECTION 8. The New Guarantor agrees to reimburse the Administrative
Agent for its reasonable out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, disbursements and other charges of
counsel for the Administrative Agent.
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IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent
have duly executed this Supplement to the Guarantee Agreement as of the day and
year first above written.
[NAME OF NEW GUARANTOR],
By___________________________
Name:
Title:
Address:
Name:
Title:
Address:
THE CHASE MANHATTAN BANK, as
Administrative Agent,
By___________________________
Name:
Title:
