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EXHIBIT 10.14
SUBSIDIARY GUARANTEE AGREEMENT dated as of
September 17, 1996, among each of the subsidiaries
listed on Schedule I hereto (each such subsidiary
individually, a "Subsidiary Guarantor" and
collectively, the "Subsidiary Guarantors") of PREMIUM
STANDARD FARMS, INC., a Delaware corporation (the
"Borrower"), and THE CHASE MANHATTAN BANK, a New York
banking 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
September 17, 1996 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among PSF Holdings, L.L.C., a Delaware limited
liability company (the "Guarantor"), the Borrower, the Lenders (such term and
each other capitalized term used but not defined herein having the meaning
assigned to such term in the Credit Agreement, and The Chase Manhattan Bank as
issuing bank (in such capacity, the "Issuing Bank"), as administrative agent
(in such capacity, the "Administrative Agent") and as collateral agent (in such
capacity, the "Collateral Agent") for the Lenders.
The Lenders have agreed to make Loans to and the Issuing Bank
has agreed to issue Letters of Credit for the account of the Borrower, pursuant
to, and upon the terms and conditions specified in, the Credit Agreement. Each
Subsidiary Guarantor is a Subsidiary of the Borrower and acknowledges that it
will derive substantial benefit from the making of the Loans by the Lenders,
and the issuance of the 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
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. Guarantee. Each Subsidiary Guarantor
unconditionally guarantees, 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
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covenants, agreements, obligations and liabilities of the Loan Parties under or
pursuant to the Credit Agreement and the other Loan Documents (all the monetary
and other obligations referred to in the preceding clauses (a) and (b) being
collectively called the "Obligations"). Each Subsidiary 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 Subsidiary Guarantor hereunder shall
be limited to a maximum aggregate amount equal to the greatest amount that
would not render its obligations hereunder subject to avoidance as a fraudulent
transfer or conveyance under the Bankruptcy 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 Subsidiary Guarantor,
contingent or otherwise, that are relevant under the Fraudulent Transfer Laws
(specifically excluding, however, any liabilities of such Subsidiary Guarantor
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 Subsidiary 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
Subsidiary Guarantor pursuant to applicable law.
SECTION 2. Obligations Not Waived; No Discharge or
Diminishment of Guarantee. To the fullest extent permitted by applicable law,
each Subsidiary 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 Subsidiary
Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the 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 Subsidiary Guarantor hereunder shall not be discharged or impaired or
otherwise 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 any other agreement, (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, (c) any default, failure or delay, wilful or
otherwise, in the performance of the Obligations, (d) any other act or omission
that may or might in any manner or to any extent vary the risk of any
Subsidiary Guarantor or that would otherwise operate as a discharge of any
Subsidiary Guarantor as a matter of law or equity (other than the payment in
full in cash of all the Obligations) or (e) 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
Collateral Agent or any other Secured Party.
SECTION 3. Security. Each Subsidiary Guarantor authorizes
the Collateral Agent, for the benefit of the 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 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. Defenses of Borrower Waived. To the fullest
extent permitted by applicable law, each Subsidiary Guarantor 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
payment in full in cash of the Obligations. The Collateral Agent may, at its
election, foreclose on any security held by it 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 it 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 and
finally paid in cash. Pursuant to applicable law, each Subsidiary 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 Subsidiary
Guarantor against the Borrower or any other Subsidiary Guarantors or
guarantors, as the case may be, or any security.
SECTION 6. 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 the amount of such unpaid 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 payment in full in cash of all the Obligations. In
addition, any indebtedness of the Borrower now or
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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
erroneously be paid to any Subsidiary 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 turned over to the
Collateral Agent in the exact form received by such Subsidiary Guarantor (duly
endorsed by such Subsidiary Guarantor to the Collateral Agent, if required) to
be credited against the payment of the Obligations, whether matured or
unmatured, in accordance with the terms of the Loan Documents.
SECTION 7. Information. Each Subsidiary Guarantor 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 any 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 Subsidiary Guarantor of information known to it regarding
such circumstances or risks.
SECTION 8. Representations and Warranties. Each Subsidiary
Guarantor represents and warrants that all representations and warranties
relating to it contained in the Credit Agreement are true and correct.
SECTION 9. Termination. The Guarantees made hereunder (a)
shall terminate when all the Obligations have been paid in full in cash and the
Lenders have no further commitment to lend under the Credit Agreement, the L/C
Exposure has 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
payment, or any part thereof, of any Obligation is rescinded or must otherwise
be restored by any Secured Party or each Subsidiary Guarantor upon the
bankruptcy or reorganization of the Borrower, each Subsidiary Guarantor or
otherwise.
SECTION 10. 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 each Subsidiary
Guarantor or the Collateral Agent 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 each
Subsidiary Guarantor when a counterpart hereof executed on its behalf 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 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).
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SECTION 11. 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 it 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 each Subsidiary Guarantor and the Collateral Agent, with the prior
written consent of the Required Lenders (except as otherwise provided in the
Credit Agreement).
SECTION 12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 13. 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 on Schedule I hereto,
with a copy to the Borrower.
SECTION 14. Survival of Agreement; Severability. (a) All
covenants, agreements, representations and warranties made by any Subsidiary
Guarantor herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the Collateral Agent
and the other Secured Parties and, except for any terminations, amendments or
modifications thereof in accordance with the terms hereof, 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, except for any termination, amendments or modifications
thereof in accordance with the terms hereof, 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
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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 15. 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 10. 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 16. Rules of Interpretation. The rules of
interpretation specified in Section 1.02 of the Credit Agreement shall be
applicable to this Agreement.
SECTION 17. 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.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 13. 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 18. 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
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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 18.
SECTION 19. Additional Guarantors. Pursuant to Section 5.12
of the Credit Agreement, each Subsidiary (other than an Inactive Subsidiary) of
the Borrower that was not in existence or not such a Subsidiary on the date of
the Credit Agreement is required to enter into this Agreement as a Subsidiary
Guarantor upon becoming such a Subsidiary (or upon ceasing to be an Inactive
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 Subsidiary Guarantor hereunder with the same
force and effect as if originally named as a Subsidiary Guarantor herein. The
execution and delivery of any instrument 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 20. 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, in a manner consistent with Section 2.18 of the Credit Agreement,
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 its obligations 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. In the event a
Secured Party shall exercise its right of setoff pursuant to this Section 20,
such Secured Party shall promptly notify such Subsidiary Guarantor of such
setoff and the application of the proceeds thereof, provided, that the failure
to give such notice shall not affect the validity
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of such setoff and the application of the proceeds thereof. The rights of each
Secured Party under this Section 20 are in addition to other rights and
remedies (including other rights of setoff) which such Secured Party may have.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
PRINCETON DEVELOPMENT CORP.
By: /s/ X.X. Xxxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, as
Collateral Agent,
by: /s/ Xxxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
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Annex 1 to the
Subsidiary Guarantee Agreement
SUPPLEMENT NO. dated as of , to
the Subsidiary Guarantee Agreement dated as of
September 17, 1996, among each of the subsidiaries
listed on Schedule I thereto (each such subsidiary
individually, a "Subsidiary Guarantor" and
collectively, the "Subsidiary Guarantors") of PREMIUM
STANDARD FARMS, INC., a Delaware corporation (the
"Borrower"), and THE CHASE MANHATTAN BANK, a New York
banking 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
September 17, 1996 (as it may hereafter be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among PSF Holdings,
L.L.C., a Delaware limited liability company (the "Guarantor"), the Borrower,
the Lenders (such term and each other capitalized term used but not defined
herein having the meaning assigned to it in the Credit Agreement or, if not
defined therein, in the Subsidiary Guarantee Agreement), the Chase Manhattan
Bank, as issuing bank (in such capacity, the "Issuing Bank"), as administrative
agent (in such capacity, the "Administrative Agent") and as Collateral Agent
for the Lenders.
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 5.12 of the
Credit Agreement, each Subsidiary (other than an Inactive Subsidiary) of the
Borrower that was not in existence or not such a Subsidiary on the date of the
Credit Agreement is required to enter into the Subsidiary Guarantee Agreement
as a Subsidiary Guarantor upon becoming such a Subsidiary (or upon ceasing to
be an Inactive Subsidiary). Section 19 of the Subsidiary Guarantee Agreement
provides that additional Subsidiaries of the Borrower 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 19 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 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
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Agreement shall be deemed to include the New Subsidiary Guarantor. The
Subsidiary Guarantee Agreement is hereby incorporated herein by reference.
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 13 of the Subsidiary Guarantee
Agreement. All communications and
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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.
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: _________________________________
_________________________________
_________________________________
THE CHASE MANHATTAN BANK, as
Collateral Agent,
by __________________________________________
Name:
Title:
