EXHIBIT 10.25
GUARANTY
This GUARANTY (this "Guaranty") is made this 16 day of June, 2004, by
PENINSULA CAPITAL CORP. (formerly known as The Old Xxxxxxxxxx Xxxxx Capital
Corp.), a Delaware corporation, together with those additional entities that
hereafter become parties hereto by executing the Form of Supplement attached
hereto as Annex 1 (each, a "Guarantor", and collectively, the "Guarantors") in
favor of Xxxxx Fargo Foothill, Inc., a California corporation, as agent for the
Lenders (as defined in the hereinafter defined Loan Agreement) (the "Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to that certain Loan and Security Agreement as of
even date herewith (as amended, restated, supplemented or otherwise modified
from time to time, the "Loan Agreement"; capitalized terms used herein without
definition shall have the meanings ascribed to such terms in the Loan
Agreement), by and among The Old Xxxxxxxxxx Xxxxx, L.L.C., a Louisiana limited
liability company ("OED"), and Xxxxxxx Xx, LLC (formerly known as Peninsula
Gaming Company, LLC), a Delaware limited liability company ("DJO"; together with
OED, hereinafter collectively referred to as "Borrowers" and each individually
as a "Borrower"), the Lenders party thereto from time to time and the Agent, the
Lender Group has agreed to extend credit to the Borrowers from time to time
pursuant to the terms and conditions thereof; and
WHEREAS, each Guarantor is an Affiliate of the Borrowers and each
Guarantor has determined that its execution, delivery and performance of this
Guaranty directly or indirectly benefits such Guarantor, and is within such
Guarantor's corporate, partnership or limited liability company purposes, as
applicable; and
WHEREAS, it is a condition precedent to the extension of credit under
the Loan Agreement that each Guarantor execute and deliver this Guaranty to the
Agent; and
WHEREAS, the obligations of each Guarantor hereunder are secured by the
other Loan Documents to which such Guarantor is a party;
NOW, THEREFORE, for and in consideration of the recitals made above,
and other good and valuable consideration, the receipt, sufficiency and adequacy
of which are hereby acknowledged, each Guarantor hereby agrees as follows:
1. Each Guarantor hereby guarantees to the Agent, for the benefit of
the Lender Group, the full and prompt payment and performance of (a) all
covenants, agreements and liabilities of the Borrowers under the Loan Documents
and all now existing or hereafter arising Obligations (including, without
limitation, any interest, fees and other charges in respect of the Loan
Agreement and the other Loan Documents that would accrue but for the filing of
an Insolvency Proceeding with respect to any Borrower, regardless of whether
such claim is allowed in such Insolvency Proceeding), and (b) the obligations of
each Guarantor and the other Guarantors (as defined in the Loan Agreement)
arising from this Guaranty and any other Loan Document, plus reasonable
attorneys' fees for which a written invoice has been presented to the Agent and
expenses if the obligations represented by this Guaranty are collected by law,
through
an attorney-at-law, or under advice therefrom (all of the foregoing now existing
or hereinafter arising obligations being referred to, collectively, as the
"Secured Obligations").
2. Regardless of whether any proposed guarantor or any other Person
shall become in any other way responsible to the Lender Group, or any of them,
for or in respect of the Secured Obligations or any part thereof, and regardless
of whether or not any Person now or hereafter responsible to the Lender Group,
or any of them, for the Secured Obligations or any part thereof, whether under
this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby
declares and agrees that this Guaranty shall be a joint and several obligation,
shall be a continuing guaranty and shall be operative and binding until the
Secured Obligations shall have been indefeasibly paid or performed in full, the
Loan Agreement and the other Loan Documents have been terminated and the Lender
Group shall be under no further obligation to extend any additional credit under
the Loan Agreement.
3. Upon execution of this Guaranty and delivery thereof to the Agent,
this Guaranty shall be deemed to be finally executed and delivered by the
Guarantors and shall not be subject to or affected by any promise or condition
affecting or limiting any Guarantor's liability, except as stated in the Loan
Agreement, and no statement, representation, agreement or promise on the part of
the Lender Group and the Borrowers, or any of them, or any officer, employee or
agent thereof, unless contained herein, forms any part of this Guaranty or has
induced the making thereof or shall be deemed in any way to affect any
Guarantor's liability hereunder. Each of the Guarantors absolutely,
unconditionally and irrevocably waives any and all right to assert any defense
(other than the defense of payment in cash in full), set-off, counterclaim or
cross-claim of any nature whatsoever with respect to this Guaranty, or the
obligations of such Guarantor under this Guaranty or the obligations of any
other Person or party (including, without limitation, the Borrowers or any of
them) relating to this Guaranty or the obligations of any of the Guarantors
under this Guaranty or otherwise with respect to the Secured Obligations in any
action or proceeding brought by the Agent hereof to collect the Secured
Obligations or any portion thereof, or to enforce the obligations of any of the
Guarantors under this Guaranty.
4. The Agent may from time to time, without exonerating or releasing
any Guarantor in any way under this Guaranty, (i) take such further or other
security or collateral for the Secured Obligations or any part thereof as it may
deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail
to deal with any other Guarantor or other guarantor of the Secured Obligations
or any security or collateral therefor or any part thereof now or hereafter held
by the Agent, or (iii) amend, modify, extend, accelerate or waive in any manner
any of the provisions, terms, or conditions of the Loan Documents, all as it may
consider expedient or appropriate in its sole discretion. Without limiting the
generality of the foregoing, or of Section 5 hereof, it is understood that the
Agent may, without exonerating or releasing any Guarantor, give up, or modify or
abstain from perfecting or taking advantage of any security for the Secured
Obligations and accept or make any compositions or arrangements, and realize
upon any security or collateral for the Secured Obligations when, and in such
manner, and with or without notice, all as the Agent may deem expedient.
5. Each Guarantor acknowledges and agrees that no change in the nature
or terms of the Secured Obligations or any of the Loan Documents, or other
agreements, instruments or
contracts evidencing, related to or attendant upon the Secured Obligations
(including any novation), shall discharge all or any part of the liabilities and
obligations of such Guarantor pursuant to this Guaranty; it being the purpose
and intent of each Guarantor and the Agent that the covenants, agreements and
all liabilities and obligations of such Guarantor hereunder are absolute,
unconditional and irrevocable under any and all circumstances. Without limiting
the generality of the foregoing, each Guarantor agrees that until all of the
covenants and agreements of this Guaranty are fully performed, and without
possibility of recourse, whether by operation of law or otherwise, such
Guarantor's undertakings hereunder shall not be released, in whole or in part,
by any action or thing which might, but for this paragraph of this Guaranty, be
deemed a legal or equitable discharge of a surety or guarantor, or by reason of
any waiver, omission of the Agent or any other member of the Lender Group, or
its failure to proceed promptly or otherwise, or by reason of any action taken
or omitted by the Agent or any member of the Lender Group, whether or not such
action or failure to act varies or increases the risk of, or affects the rights
or remedies of, such Guarantor or by reason of any further dealings between the
Borrowers on the one hand and the Agent or the Lender Group or any member
thereof, on the other hand or any other guarantor or surety, and such Guarantor
hereby expressly waives and surrenders any defense to its liability hereunder,
or any right of counterclaim or offset of any nature or description which it may
have or may exist based upon, and shall be deemed to have consented to, any of
the foregoing acts, omissions, things, agreements or waivers.
6. The Agent and the Lenders or any of them may, without demand or
notice of any kind upon or to any Guarantor, at any time or from time to time
when any amount shall be due and payable hereunder by any Guarantor, upon the
occurrence and during the continuation of an Event of Default, setoff,
appropriate and apply to any portion of the Secured Obligations hereby
guaranteed, and in such order of application as set forth in the Loan Agreement,
any deposits, property, balances, credit accounts or moneys of any Guarantor in
the possession of the Agent or any other member of the Lender Group under their
respective control for any purpose. If and to the extent that any Guarantor
makes any payment to the Agent or any other Person pursuant to or in respect of
this Guaranty, any claim which such Guarantor may have against any Borrower by
reason thereof shall be subject and subordinate to the prior payment in full in
cash of the Secured Obligations.
7. The creation or existence from time to time of Secured Obligations
in excess of the amount committed to or outstanding on the date of this Guaranty
is hereby authorized, without notice to any Guarantor, and shall in no way
impair or affect this Guaranty or the rights of the Agent or any other member of
the Lender Group herein. Anything herein to the contrary notwithstanding, the
liability of any Guarantor hereunder shall not exceed the amount which would be
enforceable in a bankruptcy, insolvency or other similar proceeding giving
effect to fraudulent conveyance and other similar laws relating to the
insolvency of debtors.
8. Upon the bankruptcy or winding up or other distribution of assets of
any Borrower or of any surety or guarantor (other than a Guarantor) for any
Obligations of the Borrowers to the Lender Group, the rights of the Agent
against any Guarantor shall not be affected or impaired by the omission of the
Agent or any other member of the Lender Group to prove its claim, or to prove
the full claim, as appropriate, against the Borrowers or any such other
guarantor or surety and the Agent may prove such claims as it sees fit and may
refrain from
proving any claim and in its discretion may value as it sees fit or refrain from
valuing any security held by it without in any way releasing, reducing or
otherwise affecting the liability to the Agent and the other members of the
Lender Group of each of the Guarantors.
9. Any amount received by the Agent from whatsoever source and applied
toward the payment of the Secured Obligations shall be applied in accordance
with the terms of the Loan Agreement.
10. Each Guarantor hereby absolutely, unconditionally and irrevocably
expressly waives, except to the extent such waiver would be expressly prohibited
by applicable law, the following: (a) notice of acceptance of this Guaranty, (b)
notice of the existence or creation of all or any of the Secured Obligations,
(c) presentment, demand, notice of dishonor, protest and all other notices
whatsoever (other than the notices expressly required hereunder or under any
other Loan Document to which such Guarantor is a party), (d) all diligence in
collection or protection of or realization upon the Secured Obligations or any
part thereof, any obligation hereunder, or any security for any of the
foregoing, (e) all rights to enforce any remedy which Agent or any other member
of the Lender Group may have against the Borrowers, and (f) until all of the
Secured Obligations shall have been indefeasibly paid or satisfied in full, all
rights of subrogation, indemnification, contribution and reimbursement from any
Borrower, and (g) any benefit of, or right to participate in, any collateral or
security now or hereinafter held by the Agent or any other member of the Lender
Group in respect of the Secured Obligations. If a claim is ever made upon the
Agent or any other member of the Lender Group for the repayment or recovery of
any amount or amounts received by such Person in payment of any of the Secured
Obligations and such Person repays all or part of such amount by reason of (i)
any judgment, decree or order of any court or administrative body having
jurisdiction over such Person or any of its property, or (ii) any settlement or
compromise of any such claim effected by such Person with any such claimant,
including any Borrower, then in such event each Guarantor agrees that any such
judgment, decree, order, settlement or compromise shall be binding upon such
Guarantor, notwithstanding any revocation hereof or the cancellation of any
promissory note or other instrument evidencing any of the Secured Obligations,
and such Guarantor shall be and remain obligated to such Person hereunder for
the amount so repaid or recovered to the same extent as if such amount had never
originally been received by such Person.
11. Agent and the other members of the Lender Group may, to the extent
permitted under the Loan Agreement, sell, assign or transfer all or any part of
the Secured Obligations, and in such event each and every permitted assignee,
transferee, or holder of all or any of the Secured Obligations shall have the
right to enforce this Guaranty, by suit or otherwise, for the benefit of such
permitted assignee, transferee or holder as fully as if such assignee,
transferee or holder were herein by name specifically given such rights, powers
and benefits.
12. This Guaranty is a continuing guaranty of the Secured Obligations
and all liabilities to which it applies or may apply under the terms hereof, and
such Secured Obligation and liabilities shall be conclusively presumed to have
been created in reliance hereon. No failure or delay by the Agent or any other
member of the Lender Group in the exercise of any right, power, privilege or
remedy shall operate as a waiver thereof, and no single or partial exercise by
the Agent or any other member of the Lender Group of any right or remedy shall
preclude other
or further exercise thereof or the exercise of any other right or remedy and no
course of dealing between any Guarantor, the Agent or any other member of the
Lender Group shall operate as a waiver thereof. No action by the Agent or any
other member of the Lender Group permitted hereunder shall in any way impair or
affect this Guaranty. For the purpose of this Guaranty, the Secured Obligations
shall include, without limitation, all Obligations (other than the FF&E
Obligations) of the Borrowers to the Agent and the other members of the Lender
Group, notwithstanding any right or power of any third party, individually or in
the name of the Borrowers and the Lender Group, or any of them, to assert any
claim or defense as to the invalidity or unenforceability of any such
Obligation, and no such claim or defense shall impair or affect the obligations
of any Guarantor hereunder.
13. This Guaranty shall be binding upon the Guarantors, their
respective successors and assigns and inure to the benefit of the Agent and the
other members of the Lender Group and their respective successors and assigns.
No Guarantor may assign its rights or obligations under this Guaranty without
the prior written consent of the Agent. No alteration or waiver of this Guaranty
or of any of its terms, provisions or conditions shall be binding upon the
parties against whom enforcement is sought unless made in writing and signed by
an authorized officer of such party. If at any time all or any part of any
payment theretofore applied by Agent or any other member of the Lender Group to
any of the Secured Obligations is or must be rescinded or returned by Agent or
any other member of the Lender Group for any reason whatsoever (including the
insolvency, bankruptcy or reorganization of any Guarantor or any Borrower), such
Secured Obligations shall, for the purposes of this Guaranty, to the extent that
such payment is or must be rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by Agent or such other member of the
Lender Group, and this Guaranty shall continue to be effective or be reinstated,
as the case may be, as to such Secured Obligations, all as though such
application by Agent or such other member of the Lender Group had not been made.
14. This is a guaranty of payment and not of collection. In the event
the Agent makes a demand upon any Guarantor under this Guaranty, such Guarantor
shall be held and bound to the Agent directly as debtor in respect of the
payment of the amounts hereby guaranteed. The Guarantors shall be jointly and
severally liable for the payment and performance of their obligations hereunder.
All costs and expenses, including reasonable and documented attorneys' fees and
expenses, incurred by the Agent in obtaining performance of or collecting
payments due under this Guaranty to the extent permitted by the Loan Agreement,
shall be deemed part of the Secured Obligations guaranteed hereby. Any notice
or, demand which the Agent may wish to give shall be served upon any Guarantor
in the fashion prescribed for notices in the Loan Agreement in care of Peninsula
Gaming Partners, LLC at the following address (or at such other address as
Guarantors may designate in written notice to Agent) and the notice so sent
shall be deemed to be served as set forth in the Loan Agreement:
[NAME OF APPLICABLE GUARANTOR]
c/o Peninsula Gaming Partners, LLC
000 X. Xxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxxx, Xxxx 00000
Attn: Xxxxxxx Xxxxxxx
Fax No. (000) 000-0000
and
[NAME OF APPLICABLE GUARANTOR]
c/o Peninsula Gaming Partners, LLC
00000 Xxxxx Xxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: M. Xxxxx Xxxxxxx
Fax No. (000)000-0000
with copies to: MAYER, BROWN, XXXX & MAW LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxx, Esq.
Fax No. (000) 000-0000
15. Each Guarantor expressly represents and acknowledges that any
financial accommodations by the Lender Group to the Borrowers, including,
without limitation, the extension of credit under the Loan Agreement, are and
will be of direct interest, benefit and advantage to such Guarantor.
16. [Intentionally Omitted.]
17. Each Guarantor hereby represents and warrants that:
(a) such Guarantor is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has the
corporate or company power and authority and the legal right to own and operate
property, to lease the property such Guarantor operates under lease and to
conduct the business in which such Guarantor is currently engaged;
(b) such Guarantor has the corporate or company power and authority and
the legal right to execute and deliver, and to perform its obligations under,
this Guaranty and the other Loan Documents to which it is a party, and has taken
all necessary company action to authorize the execution, delivery and
performance of this Guaranty and each of the other Loan Documents to which it is
a party;
(c) this Guaranty and each of the other Loan Documents to which it is a
party constitutes a legal, valid and binding obligation of such Guarantor
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and
general equitable principles (whether enforcement is sought by proceedings in
equity or at law);
(d) the execution, delivery and performance of this Guaranty and the
other Loan Documents to which it is a party will not violate any provision of
any governmental requirement or material contractual obligation of such
Guarantor and will not result in or require the creation or imposition of any
Lien on any of the properties or revenues of such Guarantor pursuant to any
governmental requirement or contractual obligation of such Guarantor;
(e) no consent or authorization of, filing with, or other act by or in respect
of, any arbitrator or governmental authority and no consent of any other Person
(including, without limitation, stockholder or creditor of such Guarantor) is
required in connection with the execution, delivery, performance, validity or
enforceability of this such Guaranty or any other Loan Document to which it is a
party; and
(f) no litigation, investigation or proceeding of or before any arbitrator or
governmental authority is pending or, to the knowledge of such Guarantor,
threatened by or against such Guarantor or against such Guarantor's properties
or revenues (1) with respect to this Guaranty or any other Loan Document to
which it is a party or any of the transactions contemplated hereby or thereby or
(2) which could reasonably be expected to cause a Material Adverse Change.
The foregoing representations and warranties shall be deemed to have
been made by each Guarantor on each date of each borrowing under the Loan
Agreement on and as of such date of borrowing as though made hereunder on and as
of such date.
18. Each Guarantor hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Guaranty and the other Loan Documents to which it is
a party, or for recognition and enforcement of any judgment in respect thereof,
to the jurisdiction set forth in Section 13(b) of the Loan Agreement;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Guarantor at its
address set forth in Section 14 hereof; and
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law.
19. EACH GUARANTOR HEREBY KNOWINGLY, INTENTIONALLY, IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH
OF DUTY CLAIMS AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
20. This Guaranty shall be construed and interpreted in accordance with
the internal laws of the State of New York, without regard to the conflict of
laws principles thereof other than Sections 5-1401 and 5-1402 of the New York
General Obligations Law.
21. Upon payment in full of all Secured Obligations as provided herein,
this Guaranty shall terminate and the Agent shall take all action reasonably
requested by Guarantors (at the expense of the Borrower or Guarantors) to
evidence the termination of this Guaranty.
22. This Guaranty may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all such separate counterparts
shall together constitute but one and the same instrument. Delivery of a
counterpart hereof via facsimile transmission shall be as effective as delivery
of a manually executed counterpart hereof.
23. Each reference herein to any right granted to, benefit conferred
upon or power exercisable by the "Agent" shall be a reference to Agent for
itself and for the other members of the Lender Group, and each action taken or
right exercised hereunder shall be deemed to have been so taken or exercised by
Agent for the benefit of and on behalf of the Lender Group.
24. Any new Subsidiary (whether by acquisition or creation) of a
Borrower (other than a CFC) is required to enter into a Guaranty. Upon the
execution and delivery of Annex 1 by such new Subsidiary, such Subsidiary 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 Guaranty shall not require the
consent of any Guarantor hereunder. The rights and obligations of each Guarantor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Guarantor hereunder.
25. Each provision of this Guaranty shall be severable from every other
provision of this Guaranty for the purpose of determining the legal
enforceability of any specific provision.
26. All representations, warranties and covenants of each Guarantor
contained herein shall survive the execution and delivery of this Guaranty.
27. This Guaranty, together with the other Loan Documents, reflects the
entire understanding of the parties with respect to the transactions
contemplated hereby and shall not be contradicted or qualified by any other
agreement, oral or written, before the date hereof.
28. Headings and numbers have been set forth herein for convenience
only. Unless the contrary is compelled by the context, everything contained in
each Section applies equally to this entire Guaranty.
29. Notwithstanding anything herein to the contrary, to the extent that
any Guarantor or any other party makes any payment on the Secured Obligations
that is subsequently invalidated, declared to be fraudulent, avoidable or
preferential, set aside or is required to be repaid to a trustee, receiver, the
estate of such Guarantor or any other party under any bankruptcy act, state or
Federal law, common law or equitable cause (such payment being hereinafter
referred to as a "Voided Payment"), then, to the extent of such Voided Payment,
that portion of
the Secured Obligations that had been previously satisfied by such Voided
Payment shall be revived and continue in full force and effect as if such Voided
Payment had never been made. In the event that a Voided Payment is sought to be
recovered from the Agent or any other member of the Lender Group, an "Event of
Default" under the Loan Agreement shall be deemed to have occurred and to be
continuing from the date of such recovery from the Agent or such other member of
the Lender Group of such Voided Payment until the full amount of such Voided
Payment is fully and finally restored to the Agent or such other member of the
Lender Group and until such time the provisions of this Guaranty, and the
guaranty provided herein, shall be in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this
Guaranty as of the date first above written.
GUARANTORS: THE OLD XXXXXXXXXX XXXXX
CAPITAL CORP., a Delaware corporation
By: /S/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
Guaranty
ANNEX 1
to
GUARANTY
FORM OF SUPPLEMENT
THIS SUPPLEMENT NO. __ (this "Supplement") dated as of __________ to
the Guaranty dated as of June ___, 2004 (as amended, restated, supplemented or
otherwise modified from time to time, the "Guaranty"), by Peninsula Capital
Corp. (formerly known as The Old Xxxxxxxxxx Xxxxx Capital Corp.), a Delaware
corporation, and those additional entities that thereafter become parties
thereto (each a "Guarantor" and collectively, the "Guarantors") and Xxxxx Fargo
Foothill, Inc., a California corporation, as agent for the Lenders (as defined
in the hereinafter defined Loan Agreement) (the "Agent").
WITNESSETH:
WHEREAS, pursuant to that certain Loan and Security Agreement dated as
of June ___, 2004 (as amended, restated, supplemented or otherwise modified from
time to time, the "Loan Agreement"), by and among The Old Xxxxxxxxxx Xxxxx,
L.L.C., a Louisiana limited liability company ("OED"), and Xxxxxxx Xx, LLC
(formerly known as Peninsula Gaming Company, LLC), a Delaware limited liability
company ("DJO"; together with OED, hereinafter collectively referred to as
"Borrowers" and each individually as a "Borrower"), the Lenders party thereto
from time to time and the Agent, the Lender Group has agreed to extend credit to
the Borrowers from time to time pursuant to the terms and conditions thereof;
and
WHEREAS, capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Guaranty, and if not
defined therein, in the Loan Agreement; and
WHEREAS, the Guarantors have entered into the Guaranty in order to
induce the extension of credit under the Loan Agreement; and
WHEREAS, pursuant to Section 24 of the Guaranty, each new Subsidiary
(whether by acquisition or creation) of a Borrower (other than a CFC) must
execute and deliver the Guaranty, and the execution of the Guaranty by the
undersigned new Guarantor or Guarantors (collectively, the "New Guarantor") may
be accomplished by the execution of this Supplement in favor of the Agent for
the benefit of the Lender Group; and
WHEREAS, New Guarantor is a direct or indirect Subsidiary of a
Borrower, and New Guarantor has determined that it will realize substantial
direct and indirect benefits as a result of the loans and other financial
accommodations extended to the Borrowers pursuant to the Loan Agreement, and New
Guarantor's execution, delivery and performance of this Guaranty is within New
Guarantor's corporate or other purposes;
NOW, THEREFORE, for and in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the New Guarantor hereby agrees as follows:
SECTION 1. In accordance with Section 24 of the Guaranty, the New
Guarantor, by its signature below, becomes a "Guarantor" under the Guaranty with
the same force and effect as if originally named therein as a "Guarantor" and
the New Guarantor hereby (a) agrees to all of the terms and provisions of the
Guaranty 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. In furtherance of
the foregoing, the New Guarantor, as security for the payment and performance in
full in cash of the Secured Obligations, does hereby guarantee, subject to the
limitations set forth in Section 7 of the Guaranty, to the Agent, for the
benefit of the Lender Group, the full and prompt payment of the Secured
Obligations, including, without limitation, any interest thereon, plus
reasonable attorneys' fees and expenses if the Secured Obligations represented
by the Guaranty are collected by law, through an attorney-at-law, or under
advice therefrom. Each reference to a "Guarantor" in the Guaranty shall be
deemed to include the New Guarantor. The Guaranty is incorporated herein by
reference.
SECTION 2. The New Guarantor represents and warrants to the Agent that
this Supplement has been duly executed and delivered by the New Guarantor and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms, except as enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other
similar laws affecting creditors' rights generally and general principles of
equity (regardless of whether such enforceability is considered in a proceeding
at law or in equity).
SECTION 3. This Supplement may be executed in multiple counterparts,
each of which shall be deemed to be an original, but all such separate
counterparts shall together constitute but one and the same instrument. Delivery
of a counterpart hereof via facsimile transmission shall be as effective as
delivery of a manually executed counterpart hereof.
SECTION 4. Except as expressly supplemented hereby, the Guaranty shall
remain in full force and effect.
SECTION 5. This Supplement shall be construed and enforced and the
rights and duties of the parties shall be governed by in all respects in
accordance with the laws and decisions of the State of New York without
reference to the conflicts or choice of law principles thereof other than
Sections 5-1401 and 5-1402 of the New York General Obligations Law.
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IN WITNESS WHEREOF, the New Guarantor has duly executed this Supplement
to the Guaranty as of the day and year first above written.
NEW GUARANTOR: [Name of New Guarantor]
Address: By:
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Name:
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Title:
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