Exhibit 10ae
GUARANTY
This GUARANTY dated as of February 18, 2004 is made by XXXXXX XX, INC., a
Delaware corporation, (the "Guarantor") in favor of (i) Fleet National Bank, a
national banking association, as agent (hereinafter, in such capacity, the
"Agent") for itself and the other lending institutions (hereinafter,
collectively, the "Banks") which are or may become parties to the Multicurrency
Revolving Credit Agreement dated as of December 8, 2000 (as amended, modified,
supplemented or restated and in effect from time to time, the "Credit
Agreement"), among Xxxxxx Corporation, a Massachusetts corporation (the
"Borrower"), the Banks and the Agent and (ii) each of the Banks.
WHEREAS, the Borrower and the Guarantor are members of a group of related
corporations, the success of any one of which is dependent in part on the
success of the other members of such group;
WHEREAS, the Guarantor expects to receive direct and indirect benefits from
the extensions of credit to the Borrower by the Banks pursuant to the Credit
Agreement (which benefits are hereby acknowledged);
WHEREAS, it is a condition precedent to the obligation of the Banks to make
any loans or otherwise extend credit to the Borrower under the Credit Agreement
that the Guarantor execute and deliver to the Agent, for the benefit of the
Banks and the Agent, this Guaranty; and
WHEREAS, the Guarantor wishes to guaranty the Borrower's obligations to the
Banks and the Agent under or in respect of the Credit Agreement as provided
herein;
NOW, THEREFORE, the Guarantor hereby agrees with the Banks and the Agent as
follows:
1. Definitions. The term "Obligations" or "Obligation" and all other
capitalized terms used herein without definition that are defined in the Credit
Agreement shall have the respective meanings provided therefor in the Credit
Agreement.
2. Guaranty of Payment and Performance. The Guarantor hereby guarantees to
the Banks and the Agent the full and punctual payment when due (whether at
stated maturity, by required pre-payment, or by acceleration after the
occurrence of an Event of Default or when otherwise due), as well as the
performance, of all of the Obligations including all such which would become due
but for the operation of the automatic stay pursuant to ss.362(a) of the Federal
Bankruptcy Code and the operation of ss.ss.502(b) and 506(b) of the Federal
Bankruptcy Code. This Guaranty is an absolute, unconditional and continuing
guaranty of the full and punctual payment and performance of all of the
Obligations and not of their collectibility only and is in no way conditioned
upon any requirement that the Agent or any Bank first attempt to collect any of
the Obligations from the Borrower or resort to any collateral security or other
means of obtaining payment. Should the Borrower default in the payment or
performance of any of the Obligations, the obligations of the Guarantor
hereunder with respect to such Obligations in default shall, upon demand by the
Agent, become immediately due and payable to the Agent, for the benefit of the
Banks and the Agent, without further demand or notice of any nature, all of
which are expressly waived by the Guarantor. Payments by the Guarantor hereunder
may be required by the Agent on any number of occasions. All payments by the
Guarantor hereunder shall be made to the Agent, in the manner and at the place
of payment specified therefor in the Credit Agreement, for the account of the
Banks and the Agent.
3. Guarantor's Agreement to Pay Enforcement Costs, etc. The Guarantor
further agrees, as principal obligor and not as Guarantor only, to pay to the
Agent, on demand, all costs and expenses (including court costs and reasonable
legal expenses) reasonably incurred or expended by the Agent or any Bank in
connection with the Obligations, this Guaranty and the enforcement thereof,
together with interest on amounts recoverable under this ss.3 from the time when
such amounts become due until payment, whether before or after judgment, at the
rate of interest for overdue principal set forth in the Credit Agreement,
provided that if such interest exceeds the maximum amount permitted to be paid
under applicable law, then such interest shall be reduced to such maximum
permitted amount.
4. Waiver by Guarantor; Bank's Freedom to Act. The Guarantor agrees that
the Obligations will be paid and performed strictly in accordance with their
respective terms, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent or any Bank with respect thereto. The Guarantor waives promptness,
diligences, presentment, demand, protest, notice of acceptance, notice of any
Obligations incurred and all other notices of any kind, all defenses which may
be available by virtue of any valuation, stay, moratorium law or other similar
law now or hereafter in effect, any right to require the marshalling of assets
of the Borrower or any other entity or other person primarily or secondarily
liable with respect to any of the Obligations, and all suretyship defenses
generally. Without limiting the generality of the foregoing, the Guarantor
agrees to the provisions of any instrument evidencing, securing or otherwise
executed in connection with any Obligation and agrees that the obligations of
the Guarantor hereunder shall not be released or discharged, in whole or in
part, or otherwise affected by (i) the failure of the Agent or any Bank to
assert any claim or demand or to enforce any right or remedy against the
Borrower or any other entity or other person primarily or secondarily liable
with respect to any of the Obligations; (ii) any extensions, compromise,
refinancing, consolidation or renewals of any Obligation; (iii) any change in
the time, place or manner of payment of any of the Obligations or any
rescissions, waivers, compromise, refinancing, consolidation or other amendments
or modifications of any of the terms or provisions of the Credit Agreement, the
Note, the other Loan Documents or any other agreement evidencing, securing or
otherwise executed in connection with any of the Obligations; (iv) the addition,
substitution or release of any entity or other person primarily or secondarily
liable for any Obligation; (v) the adequacy of any rights which the Agent or any
Bank may have against any collateral security or other means of obtaining
repayment of any of the Obligations; (vi) the impairment of any collateral
securing any of the Obligations, including without limitation the failure to
perfect or preserve any rights which the Agent or any Bank might have in such
collateral security or the substitution, exchange, surrender, release, loss or
destruction of any such collateral security; or (vii) any other act or omission
which might in any manner or to any extent vary the risk of the Guarantor or
otherwise operate as a release or discharge of the Guarantor, all of which may
be done without notice to the Guarantor. To the fullest extent permitted by law,
the Guarantor hereby expressly waives any and all rights or defenses arising by
reason of (A) any "one action" or "anti-deficiency" law which would otherwise
prevent the Agent or any Bank from bringing any action, including any claim for
a deficiency, or exercising any other right or remedy (including any right of
set-off), against the Guarantor before or after the Agent's or such Bank's
commencement or completion of any foreclosure action, whether judicially, by
exercise of power of sale or otherwise, or (B) any other law which in any other
way would otherwise require any election of remedies by the Agent or any Bank.
5. Unenforceability of Obligations Against Borrower. If for any reason the
Borrower has no legal existence or is under no legal obligation to discharge any
of the Obligations, or if any of the Obligations have become irrecoverable from
the Borrower by reason of the Borrower's insolvency, bankruptcy or
reorganization or by other operation of law or for any other reason, this
Guaranty shall nevertheless be binding on the Guarantor to the same extent as if
the Guarantor at all times had been the principal obligor on all such
Obligations. In the event that acceleration of the time for payment of any of
the Obligations is stayed upon the insolvency, bankruptcy or reorganization of
the Borrower, or for any other reason, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement, the Note, the other Loan
Documents or any other agreement evidencing, securing or otherwise executed in
connection with any Obligation shall be immediately due and payable by the
Guarantor .
6. Subrogation; Subordination.
6.1. Waiver of Rights Against Borrower. Until the final payment and
performance in full of all of the Obligations, the Guarantor shall not exercise
and hereby waives any rights against the Borrower arising as a result of payment
by the Guarantor hereunder, by way of subrogation, reimbursement, restitution,
contribution or otherwise, and will not prove any claim in competition with the
Agent or any Bank in respect of any payment hereunder in any bankruptcy,
insolvency or reorganization case or proceedings of any nature; the Guarantor
will not claim any setoff, recoupment or counterclaim against the Borrower in
respect of any liability of the Guarantor to the Borrower; and the Guarantor
waives any benefit of and any right to participate in any collateral security
which may be held by the Agent or any Bank.
6.2. Subordination. The payment of any amounts due with respect to any
indebtedness of the Borrower for money borrowed or credit received now or
hereafter owed to the Guarantor is hereby subordinated to the prior payment in
full of all of the Obligations; provided that so long as no Event of Default has
occurred and is continuing, any amounts due to the Guarantor from the Borrower
may continue to be paid when due. The Guarantor agrees that, after the
occurrence of any Event of Default, the Guarantor will not demand, xxx for or
otherwise attempt to collect any such indebtedness of the Borrower to the
Guarantor until all of the Obligations shall have been paid in full. If,
notwithstanding the foregoing sentence, the Guarantor shall collect, enforce or
receive any amounts in respect of such indebtedness while any Obligations are
still outstanding, such amounts shall be collected, enforced and received by the
Guarantor as trustees for the Banks and the Agent and be paid over to the Agent,
for the benefit of the Banks and the Agent, on account of the Obligations
without affecting in any manner the liability of the Guarantor under the other
provisions of this Guaranty.
6.3. Provisions Supplemental. The provisions of this ss.6 shall be
supplemental to and not in derogation of any rights and remedies of the Banks
and the Agent under any separate subordination agreement which the Agent may at
any time and from time to time enter into with the Guarantor for the benefit of
the Banks and the Agent.
7. Setoff. Regardless of the adequacy of any collateral security or other
means of obtaining payment of any of the Obligations, each of the Agent and the
Banks is hereby authorized at any time and from time to time after the
occurrence of an Event of Default, without notice to the Guarantor (any such
notice being expressly waived by the Guarantor) and to the fullest extent
permitted by law, to set off and apply such deposits and other sums against the
obligations of the Guarantor under this Guaranty, whether or not the Agent or
such Bank shall have made any demand under this Guaranty. The Agent or such
Bank, as the case may be, shall provide notice to the applicable Guarantor
promptly after the exercise of any such right of setoff.
8. Further Assurances. The Guarantor agrees that it will from time to time,
at the written request of the Agent, do all such things and execute all such
documents as the Agent may consider reasonably necessary or desirable to give
full effect to this Guaranty and to perfect and preserve the rights and powers
of the Banks and the Agent hereunder. The Guarantor acknowledges and confirms
that the Guarantor has established its own adequate means of obtaining from the
Borrower on a continuing basis all information desired by the Guarantor
concerning the financial condition of the Borrower and that the Guarantor will
look to the Borrower and not to the Agent or any Bank in order for the Guarantor
to keep adequately informed of changes in the Borrower's financial condition.
9. Termination; Reinstatement. This Guaranty shall remain in full force and
effect until the Agent is given written notice of the Guarantor's intention to
discontinue this Guaranty, notwithstanding any intermediate or temporary payment
or settlement of the whole or any part of the Obligations. No such notice shall
be effective unless received and acknowledged by an officer of the Agent at the
address of the Agent for notices set forth in ss.19 of the Credit Agreement. No
such notice shall affect any rights of the Agent or any Bank hereunder,
including without limitation the rights set forth in ss.ss.4 and 6, with respect
to any Obligations incurred or accrued prior to the receipt of such notice or
any Obligations incurred or accrued pursuant to any contract or commitment in
existence prior to such receipt. This Guaranty shall continue to be effective or
be reinstated, notwithstanding any such notice, if at any time any payment made
or value received with respect to any Obligation is rescinded or must otherwise
be returned by the Agent or any Bank upon the insolvency, bankruptcy or
reorganization of the Borrower, or otherwise, all as though such payment had not
been made or value received.
10. Successors and Assigns. This Guaranty shall be binding upon the
Guarantor, its successors and assigns, and shall inure to the benefit of the
Agent and the Banks and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing sentence, subject to and in
accordance with ss.18 of the Credit Agreement, each Bank may assign or otherwise
transfer the Credit Agreement, its Revolving Credit Note, the other Loan
Documents or any other agreement or note held by it evidencing, securing or
otherwise executed in connection with the Obligations, or sell participations in
any interest therein, to any other entity or other person, and such other entity
or other person shall thereupon become vested, to the extent set forth in the
agreement evidencing such assignment, transfer or participation, with all the
rights in respect thereof granted to such Bank herein. The Guarantor may not
assign any of its obligations hereunder without the prior written consent of the
Agent and each of the Banks.
11. Amendments and Waivers. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by the Guarantor therefrom shall be
effective unless the same shall be in writing and signed by the Agent with the
consent of the Majority Banks. No failure on the part of the Agent or any Bank
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right.
12. Notices. All notices and other communications called for hereunder
shall be made in accordance with ss.19 of the Credit Agreement and shall be
addressed as follows: if to the Guarantor, at the address set forth beneath its
signature hereto, and if to the Agent, at the address for notices to the Agent
set forth in ss. 19 of the Credit Agreement, or at such address as either party
may designate by notice in writing to the other.
13. Governing Law; Consent to Jurisdiction. THIS GUARANTY IS INTENDED TO
TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. The Guarantor
agrees that any suit for the enforcement of this Guaranty may be brought in the
courts of The Commonwealth of Massachusetts or any federal court sitting therein
and consent to the nonexclusive jurisdiction of such court and to service of
process in any such suit being made upon the Guarantor by mail at the address
referred to in ss.12. The Guarantor hereby waives any objection that it may now
or hereafter have to the venue of any such suit or any such court or that such
suit was brought in an inconvenient court.
14. Waiver or Jury Trial. THE GUARANTOR HEREBY WAIVES ITS RIGHTS TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS GUARANTY, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY OF SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law,
the Guarantor hereby waives any rights which it may have to claim or recover in
any litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages. The Guarantor (i) certifies that neither the Agent or any Bank
nor any representative, agent or attorney of the Agent or any Bank has
represented, expressly or otherwise, that the Agent or any Bank would not, in
the event of litigation, seek to enforce the foregoing waivers and (ii)
acknowledges that, in entering into the Credit Agreement and the other Loan
Documents to which the Agent or any Bank is a party, the Agent and the Banks are
relying upon, among other things, the waivers and certifications contained in
this ss.14.
15. Miscellaneous. This Guaranty constitutes the entire agreement of the
Guarantor with respect to the matters set forth herein. The rights and remedies
herein provided are cumulative and not exclusive of any remedies provided by law
or any other agreement, and this Guaranty shall be in addition to any other
guaranty of or collateral security for any of the Obligations. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not affect
the validity or enforceability of its remaining provisions. Captions are for the
ease of reference only and shall not affect the meaning of the relevant
provisions. The meanings of all defined terms used in this Guaranty shall be
equally applicable to the singular and plural forms of the terms defined.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
and delivered as an instrument under seal as of the date first above written.
XXXXXX XX, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx, President
Address: Xxx Xxxxxxxxxx Xxxxx
X.X. Xxx 000
Xxxxxx, XX 00000-0000
Telecopier No.: 000-000-0000
