SUBSIDIARY GUARANTEE AGREEMENT
SUBSIDIARY GUARANTEE AGREEMENT (together with instruments
executed and delivered pursuant to Section 20 hereof, this
"Agreement") dated as of July 31, 2000, among each of the
subsidiaries of APPLIED POWER INC., a Wisconsin corporation
(doing business as Actuant Corporation) (the "Borrower") listed
on Schedule I hereto (the "Subsidiary Guarantors"), and CREDIT
SUISSE FIRST BOSTON, a bank organized under the laws of
Switzerland, acting through its New York Branch ("CSFB"), as
collateral agent (in such capacity, 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 July 31, 2000
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") among the Borrower, the Lenders (as defined in Article I thereof),
CSFB, as administrative agent (in such capacity, the "Administrative Agent"), as
collateral agent (in such capacity, the "Collateral Agent") and as issuing bank
(in such capacity, the "Issuing Bank") for the Lenders, FIRST UNION NATIONAL
BANK as syndication agent (in such capacity, the "Syndication Agent"), and ING
(U.S.) CAPITAL LLC as documentation agent (in such capacity, the "Documentation
Agent"). Capitalized terms used and not defined herein (including, without
limitation, the term "Obligations", as used in Section 1 and elsewhere herein)
are used with the meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower, and the Issuing
Bank has agreed to issue Letters of Credit for the account of the Borrower, in
each case pursuant to, and upon the terms and subject to the conditions
specified in, the Credit Agreement. Each of the Subsidiary Guarantors is a
Subsidiary of the Borrower and acknowledges that it will derive substantial
benefit from the making of the Loans by the Lenders to the Borrower, and the
issuance of the Letters of Credit by the Issuing Bank for the account of the
Borrower. 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 Subsidiary Guarantors of a Subsidiary 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 Subsidiary
Guarantors are willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Subsidiary Guarantee. Each Subsidiary Guarantor
unconditionally guarantees, jointly with the other Subsidiary Guarantors and
severally, as a primary obligor and not merely as a surety, the due and punctual
payment of the Obligations. Each Subsidiary Guarantor waives notice of and
hereby consents to any agreements or arrangements whatsoever by the Secured
Parties with any other person pertaining to the Obligations, including
agreements and arrangements for payment, extension, renewal, subordination,
composition, arrangement, discharge or release of the whole or any part of the
Obligations, or for the discharge or surrender of any or all security, or for
the compromise, whether by way of acceptance of part payment or otherwise, and
the same shall in no way impair such Subsidiary Guarantor's liability hereunder.
SECTION 2. Obligations Not Waived. To the fullest extent permitted by
applicable law, each Subsidiary Guarantor waives presentment to, demand of
payment from and protest to the Borrower or any other person of any of the
Obligations, and also waives notice of acceptance of its guarantee, notice of
protest for nonpayment, and all other formalities. To the fullest extent
permitted by applicable law, the obligations of each Subsidiary Guarantor
hereunder shall not be affected by (a) the failure of any Loan Party to assert
any
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claim or demand or to enforce or exercise any right or remedy against the
Borrower or any other Subsidiary Guarantor under the provisions of the Credit
Agreement, any other Loan Document or otherwise, (b) any extension, renewal or
increase of or in any of the Obligations, (c) any rescission, waiver, amendment
or modification of, or any release from, any of the terms or provisions of this
Agreement, the Credit Agreement, any other Loan Document, any guarantee or any
other agreement or instrument, including with respect to any other Subsidiary
Guarantor under this Agreement, (d) the release of (or the failure to perfect a
security interest in) any of the security held by or on behalf of the Collateral
Agent or any other Secured Party or (e) the failure or delay of any Secured
Party to exercise any right or remedy against any other guarantor of the
Obligations; provided, in any action or proceeding involving any state corporate
law, or any state, federal or foreign bankruptcy, insolvency, reorganization or
other law affecting the rights of creditors generally, if the obligations of any
Subsidiary Guarantor hereunder would otherwise be held or determined to be void,
voidable, invalid or unenforceable, or subordinated to the claims of any other
creditors, on account of the amount of its liability hereunder, then,
notwithstanding any other provision to the contrary, the amount of such
liability shall, without any further action by such Subsidiary Guarantor, any
Lender, any Agent or any other person, be automatically limited and reduced to
the highest amount that is valid and enforceable and not subordinated to the
claims of other creditors as determined in such action or proceeding.
SECTION 3. Security. Each of the Subsidiary Guarantors authorizes the
Collateral Agent to (a) take and hold security for the payment of this
Subsidiary 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 it in its sole discretion may determine subject to the
terms of any other Loan Documents and (c) release or substitute any one or more
endorsees, other guarantors or other obligors.
SECTION 4. Guarantee of Payment. Each Subsidiary 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 Subsidiary 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 (other than a defense of payment) 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
Subsidiary 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, any guarantee or any other agreement or instrument, by
any amendment, waiver or modification of any provision of the Credit Agreement
or any other Loan Document or other agreement or instrument, by any default,
failure or delay, wilful or otherwise, in the performance of the Obligations, or
by any other act, omission or delay to do any other act that may or might in any
manner or to any extent vary the risk of such Subsidiary Guarantor or that would
otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law
or equity (other than the indefeasible payment in full in cash of all the
Obligations) or which would impair or eliminate any right of such Subsidiary
Guarantor to subrogation.
SECTION 6. Defenses Waived. To the fullest extent permitted by
applicable law, each of the Subsidiary Guarantors waives any defense based on or
arising out of the unenforceability of the Obliga-
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tions or any part thereof from any cause or the cessation from any cause of the
liability (other than the final and indefeasible payment in full in cash of the
Obligations) of the Borrower or any other person. 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 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 Subsidiary Guarantor hereunder except to the extent the
Obligations have been fully, finally and indefeasibly paid in cash. Pursuant to
applicable law, each of the Subsidiary 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 Subsidiary Guarantor against the Borrower or any
other guarantor 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 Subsidiary 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 Subsidiary
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 an
amount equal to the unpaid amount of such Obligations then due, together with
accrued and unpaid interest and fees on such Obligations. Upon payment by any
Subsidiary Guarantor of any sums to the Collateral Agent or any Secured Party as
provided above, all rights of such Subsidiary 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 or any
Subsidiary now or hereafter held by any Subsidiary Guarantor is hereby
subordinated in right of payment to the prior payment in full of the
Obligations. If any amount shall be paid to any Subsidiary Guarantor on account
of (i) such subrogation, contribution, reimbursement, indemnity or similar right
or (ii) any such indebtedness at any time when any Obligation then due and owing
has not been paid, 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 Subsidiary Guarantors assumes all
responsibility for being and keeping itself informed of the Borrower's financial
condition and assets, all other circumstances bearing upon the risk of
nonpayment of the Obligations and the nature, scope and extent of the risks that
such Subsidiary 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 Subsidiary Guarantors of information known to it or any of them
regarding such circumstances or risks.
SECTION 9. Representations and Warranties. Each of the Subsidiary
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 (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 all Loans, (ii) each payment required to be
made under the Credit Agreement in respect of any Letter of Credit, and (iii)
all other Obligations then due and owing, have in each case been indefeasibly
paid in full and the Lenders have no further commitment to lend under the Credit
Agreement, the L/C Exposure has
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been reduced to zero and the 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 any payment, or
any part thereof, on any Obligation is rescinded or repaid in good faith
settlement of a pending or threatened avoidance claim or must otherwise be
restored by any Secured Party upon the bankruptcy or reorganization of the
Company, the Borrower, or any Subsidiary Guarantor or otherwise.
SECTION 11. Binding Effect; Several Agreement; Assignments; Releases.
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 Subsidiary
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 Subsidiary Guarantor when a
counterpart hereof (or a Supplement referred to in Section 20 hereof) executed
on behalf of such Subsidiary Guarantor shall have been delivered to the
Collateral Agent and a counterpart hereof (or a Supplement referred to in
Section 20) shall have been executed on behalf of the Collateral Agent, and
thereafter shall be binding upon such Subsidiary Guarantor and the Collateral
Agent and their respective successors and assigns, and shall inure to the
benefit of such Subsidiary Guarantor, the Collateral Agent and the other Secured
Parties, and their respective successors and assigns, except that no Subsidiary
Guarantor shall have the right to assign its rights or obligations hereunder or
any interest herein (and any such attempted assignment shall be void). This
Agreement shall be construed as a separate agreement with respect to each
Subsidiary Guarantor and may be amended, modified, supplemented, waived or
released with respect to any Subsidiary Guarantor without the approval of any
other Subsidiary Guarantor and without affecting the obligations of any other
Subsidiary Guarantor. The Collateral Agent is hereby expressly authorized to,
and agrees upon request of the Borrower it will, release any Subsidiary
Guarantor from its obligations hereunder in the event that all the capital stock
of such Subsidiary Guarantor shall be sold, transferred or otherwise disposed of
to a person that is not an Affiliate of the Borrower in a transaction permitted
by Section 6.05 of the Credit Agreement.
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
Subsidiary 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 Subsidiary Guarantor in any case shall entitle such
Subsidiary 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 Subsidiary Guarantors to which such waiver, amendment or modification
relates and the Collateral Agent with consent required under 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 Subsidiary Guarantor shall be given
to it at its address set forth in Schedule I with a copy to the Borrower.
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SECTION 15. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by the Subsidiary 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 the Letters of Credit by the 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, the L/C Exposure does not equal zero or
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
Subsidiary 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 court 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 Subsidiary Guarantor or its properties in the courts of
any jurisdiction.
(b) Each Subsidiary 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.
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(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 Subsidiary Guarantors. Pursuant to Section 5.11
of the Credit Agreement, each Domestic Subsidiary that was not in existence on
the date of the Credit Agreement is required to enter into this Agreement as a
Subsidiary Guarantor upon becoming a Domestic Subsidiary. Upon execution and
delivery after the date hereof by the Collateral Agent and such a Subsidiary of
a Supplement in the form of Annex 1, such Subsidiary shall become a Subsidiary
Guarantor hereunder with the same force and effect as if originally named as a
Subsidiary Guarantor herein. The execution and delivery of any Supplement adding
an additional Subsidiary Guarantor as a party to this Agreement shall not
require the consent of any other Subsidiary Guarantor hereunder. The rights and
obligations of each Subsidiary Guarantor hereunder shall remain in full force
and effect notwithstanding the addition of any new Subsidiary 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 Subsidiary Guarantor against
any or all the obligations of such Subsidiary Guarantor now or hereafter
existing under this Agreement and the other Loan Documents held by such Secured
Party, irrespective of whether or not the Collateral Agent or any 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.
EACH OF THE SUBSIDIARIES LISTED
ON SCHEDULE I HERETO
By: ________________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
as Collateral Agent
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
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SCHEDULE 1
to the Subsidiary Guarantee Agreement
Subsidiary Guarantors Address
--------------------- -------
Actuant Corporation
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx, Chief Financial Officer
Fax No.: (000) 000-0000
and
Xxxxxxx & Xxxxx
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxx
Fax No.: (000) 000-0000
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Annex 1 to the
Subsidiary Guarantee Agreement
SUPPLEMENT NO. dated as of [ ], to the Subsidiary Guarantee
Agreement dated as of July 31, 2000 (the "Subsidiary Guarantee
Agreement"), among each of the subsidiaries of APPLIED POWER
INC., a Wisconsin corporation (doing business as Actuant
Corporation) (the "Borrower") listed on Schedule I thereto (the
"Subsidiary Guarantors"), and CREDIT SUISSE FIRST BOSTON, a bank
organized under the laws of Switzerland, acting through its New
York Branch ("CSFB"), as collateral agent (in such capacity, 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 July 31,
2000 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") among the Borrower, the Lenders (as defined in Article I
thereof), CSFB, as administrative agent (in such capacity, the "Administrative
Agent"), as collateral agent (in such capacity, the "Collateral Agent") and as
issuing bank (in such capacity, the "Issuing Bank") for the Lenders FIRST UNION
NATIONAL BANK as syndication agent (the "Syndication Agent") and ING (U.S.)
CAPITAL LLC as documentation agent (the "Documentation Agent").
(B) Capitalized terms used and not otherwise defined herein are used
with the meanings assigned to such terms in the Subsidiary Guarantee Agreement
and the Credit Agreement.
(C) The Subsidiary Guarantors have entered into the Subsidiary
Guarantee Agreement in order to induce the Lenders to make Loans and the Issuing
Bank to issue Letters of Credit. Pursuant to Section 5.11 of the Credit
Agreement, each Domestic Subsidiary that was not in existence or not a Domestic
Subsidiary on the date of the Credit Agreement is required to enter into the
Subsidiary Guarantee Agreement as a Subsidiary Guarantor upon becoming a
Domestic Subsidiary. Section 20 of the Subsidiary Guarantee Agreement provides
that additional Subsidiaries may become Subsidiary Guarantors under the
Subsidiary Guarantee Agreement by execution and delivery of an instrument in the
form of this Supplement. The undersigned Subsidiary of the Borrower (the "New
Subsidiary Guarantor") is executing this Supplement in accordance with the
requirements of the Credit Agreement to become a Subsidiary Guarantor under the
Subsidiary 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.
Accordingly, the Collateral Agent and the New Subsidiary Guarantor
agree as follows:
SECTION 1. In accordance with Section 20 of the Subsidiary Guarantee
Agreement, the New Subsidiary Guarantor by its signature below becomes a
Subsidiary Guarantor under the Subsidiary Guarantee Agreement with the same
force and effect as if originally named therein as a Subsidiary Guarantor and
the New Subsidiary Guarantor hereby (a) agrees to all the terms and provisions
of the Subsidiary Guarantee Agreement applicable to it as a Subsidiary Guarantor
thereunder (including its guarantee of the Obligations) and (b) represents and
warrants that the representations and warranties made by it as a Subsidiary
Guarantor thereunder are true and correct on and as of the date hereof. Each
reference to a "Subsidiary Guarantor" in the Subsidiary Guarantee Agreement
shall be deemed to include the New Subsidiary Guarantor.
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SECTION 2. The New Subsidiary 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 Subsidiary 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 Subsidiary
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 Subsidiary 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 Subsidiary Guarantee
Agreement. All communications and notices hereunder to the New Subsidiary
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 Subsidiary Guarantor agrees to reimburse the
Collateral Agent for its out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, disbursements and other charges of
counsel for the Collateral Agent.
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IN WITNESS WHEREOF, the New Subsidiary Guarantor and the Collateral
Agent have duly executed this Supplement to the Subsidiary Guarantee Agreement
as of the day and year first above written.
[Name Of New Subsidiary Guarantor],
By: _____________________________________________
Name:
Title:
Address:
CREDIT SUISSE FIRST BOSTON,
as Collateral Agent
By: _____________________________________________
Name:
Title:
By: _____________________________________________
Name:
Title:
