EXHIBIT 10.14
PARENT GUARANTEE
THIS PARENT GUARANTEE (as amended, supplemented, amended and restated
or otherwise modified from time to time, this "Guarantee"), is made and entered
into as of May 31, 2002, by EnPro Industries, Inc. (the "Guarantor"), in favor
of the financial institutions and their successors and permitted assigns (the
"Lenders") which may now be or hereafter become parties to the Credit Agreement
(as defined below), the Letter of Credit Issuer (as defined in the Credit
Agreement) and BANK OF AMERICA, N.A., for itself and as agent for the Lenders
and the Letter of Credit Issuer (the "Agent"; and together with the Lenders and
the Letter of Credit Issuer, the "Guaranteed Parties").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Agent, the Lenders, Citicorp USA, Inc., as Syndication
Agent, and Coltec Industries Inc, a Pennsylvania corporation ("Coltec"), Coltec
Industrial Products LLC, a Delaware limited liability company ("CIP"), Xxxxxxx
Sealing Technologies LLC, a Delaware limited liability company ("Xxxxxxx
Sealing"), Xxxxxxx Bearings LLC, a Delaware limited liability company ("Garlock
Bearing"), Xxxxx Tool Company Inc., a Michigan corporation ("Xxxxx Tool"), and
Stemco LLC, a Delaware limited liability company ("Stemco" and, together with
Coltec, CIP, Xxxxxxx Sealing, Garlock Bearing and Xxxxx Tool, each individually
referred to herein as a "Borrower" and collectively as the "Borrowers") propose
to enter into that certain Credit Agreement dated as of May 16, 2002 (as the
same may be amended, supplemented, amended and restated or otherwise modified
from time to time, the "Credit Agreement"), providing for the extension of
credit by the Lenders to the Borrowers and issuance of Letters of Credit by the
Letter of Credit Issuer for the benefit of the Borrowers. When capitalized and
used herein, terms defined in the Credit Agreement and not otherwise defined
herein shall have the meanings ascribed to them in the Credit Agreement; and
WHEREAS, the Lenders and the Agent have required, as a condition to the
extension of credit and the issuance of Letters of Credit under the Credit
Agreement, that the Guarantor execute and deliver this Guarantee.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders and the Agent to enter into, and to extend credit under the Credit
Agreement, the Guarantor agrees with the Guaranteed Parties as follows:
Section 1 THE GUARANTEE. The guarantee of the Guarantor hereunder
is as follows:
Section 1.1 Guarantee Of Extensions Of Credit To Borrowers. The
Guarantor hereby unconditionally, absolutely and irrevocably guarantees to the
Guaranteed Parties and their successors, endorsees, transferees and assigns, the
prompt payment, when and as due (whether at stated maturity, on mandatory
prepayment by acceleration or otherwise), and performance of all of the
Obligations of the Borrowers under the Credit Agreement and the other Loan
Documents (including all interest and costs of enforcement or preservation and
protection of Collateral payable by the Borrowers under the Credit Agreement or
any Loan Document which may at any time accrue with respect to the Obligations
of the Borrowers or which would accrue but for the operation of any provision or
doctrine with respect to the Bankruptcy Code, as hereinafter defined, and
whether or not an allowed claim) (the "Guaranteed Obligations"). The Guarantor
agrees that this Guarantee is a guaranty of payment and performance and not of
collection, and that its obligations under this Guarantee shall be joint and
several with any other Persons which may at any time or from time to time be or
become directly or indirectly financially responsible to the Guaranteed Parties
with respect to the Guaranteed Obligations (any such Person, an "Obligor") and
shall be under all circumstances primary, absolute and unconditional,
irrespective of, and unaffected by:
(a) the genuineness, validity, regularity, enforceability or any future
amendment of, or change in, this Guarantee, the Credit Agreement, any other Loan
Document or other agreement, document or instrument to which the Guarantor or
any Borrower or Obligor is or may become a party;
(b) the absence of any action to enforce this Guarantee, any other Loan
Document or the waiver or consent by the Guaranteed Parties with respect to any
of the provisions hereof or thereof;
(c) the existence, value or condition of, or failure of the Agent to
perfect its Lien against, any Collateral or any action, or the absence of any
action, by the Agent in respect thereof (including, without limitation, the
release of any Collateral);
(d) any bankruptcy, insolvency, reorganization, arrangement,
adjustment, composition, liquidation or the like of the Guarantor or any
Borrower or Obligor including, but not limited to, (i) any Guaranteed Party's
election, in any proceeding instituted under Title 11 of the United States Code
(11 U.S.C. ss. 101 et seq.) or any replacement or supplemental federal statutes
dealing with the bankruptcy of debtors (the "Bankruptcy Code"), of the
application of Section 1111(b)(2) of the Bankruptcy Code, (ii) any borrowing or
grant of a Lien by the Guarantor or any Borrower or Obligor as
debtor-in-possession, under Section 364 of the Bankruptcy Code, or (iii) the
disallowance or subordination of all or any portion of any Guaranteed Party's
claim(s) for repayment of the Guaranteed Obligations under Sections 502, 510,
544, 547, 548 or 550 of the Bankruptcy Code;
(e) any merger or consolidation of the Guarantor or any Borrower or
Obligor into or with any other Person, or any sale, lease or transfer of any or
all of the assets of the Guarantor or any Borrower or Obligor to any other
Person;
(f) any circumstance which might constitute a defense available to, or
a discharge of the Guarantor or any Borrower or Obligor (other than the defense
of payment of the Obligations);
(g) any sale, transfer or other disposition of any stock of the
Guarantor or any Borrower or Obligor;
2
(h) absence of any notice to, or knowledge by, the Guarantor of the
existence or occurrence of any of the matters or events set forth in the
foregoing subdivisions (a) through (g); or
(i) any other fact or circumstance which might otherwise constitute a
defense available to, or a discharge of, a surety or guarantor (other than the
fulfillment of the termination requirements under Section 8.12 hereof);
it being agreed by the Guarantor that its obligations under this Guarantee shall
not be discharged until the payment and performance, in full, of the Guaranteed
Obligations (including all interest and costs of enforcement or preservation and
protection of Collateral payable by the Borrowers under the Credit Agreement and
the other Loan Documents which may at any time accrue with respect to the
Guaranteed Obligations or which would accrue but for the operation of any
provision of or doctrine with respect to the Bankruptcy Code and whether or not
an allowed claim) or release of the Guarantor by the Guaranteed Parties,
whichever shall occur first. The Guarantor shall be regarded, and shall be in
the same position, as principal debtor (and not merely as surety) with respect
to the Guaranteed Obligations and specifically agrees that, notwithstanding any
discharge of any Borrower or any other Person or the operation of any other
provision of the Bankruptcy Code with respect to the Guaranteed Obligations or
any such Persons, the Guarantor shall be fully responsible for paying all
interest and costs of enforcement or preservation and protection of Collateral
which may at any time accrue with respect to the Guaranteed Obligations or which
would accrue but for the operation of any provision of or doctrine with respect
to the Bankruptcy Code and whether or not an allowed claim. The Guarantor
expressly waives all rights it may have now or in the future under any statute,
or at common law, or at law or in equity, or otherwise, to compel the Guaranteed
Parties to proceed in respect of the Guaranteed Obligations against the
Guarantor, any Borrower or any other Person or against any Collateral before
proceeding against, or as a condition to proceeding against, the Guarantor. The
Guarantor agrees that any notice or directive given at any time to the
Guaranteed Parties which is inconsistent with the waiver in the immediately
preceding sentence shall be null and void and may be ignored by the Guaranteed
Parties, and, in addition, may not be pleaded or introduced as evidence in any
litigation relating to this Guarantee for the reason that such pleading or
introduction would be at variance with the written terms of this Guarantee
unless the Agent has specifically agreed otherwise in writing. It is agreed
between the Guarantor and the Guaranteed Parties that the foregoing waivers are
of the essence of the transaction contemplated by the Loan Documents and that,
but for this Guarantee and such waivers, the Guaranteed Parties would decline to
enter into the Credit Agreement.
Section 1.2 Demand By The Agent. In addition to the terms of the
Guarantee set forth in Section 1.1 hereof, and in no manner imposing any other
limitation on such terms, it is expressly understood and agreed that, if any or
all of the then outstanding principal amount of the Guaranteed Obligations
(together with all accrued interest thereon) becomes due and payable, then the
obligations of the Guarantor shall, at the option of the Agent, without notice
or demand, become due and payable and the Guarantor shall, upon demand in
writing therefor by the Agent to the Guarantor, pay to the holder or holders of
the Guaranteed Obligations the outstanding Guaranteed Obligations due and owing
to such holder or holders. Payment by the Guarantor shall be made in Dollars to
the Agent for the ratable benefit of the Guaranteed Parties, in immediately
available Federal funds to an account designated by the Agent or at the address
3
set forth herein for the giving of notice to the Agent or at any other address
that may be specified in writing from time to time by the Agent.
Section 1.3 Enforcement Of Guarantee. In no event shall the Agent
or the Guaranteed Parties have any obligation (although it is entitled, at its
option) to proceed against any Borrower or any other Person or any Collateral
before seeking satisfaction from the Guarantor, and the Agent may proceed, prior
or subsequent to, or simultaneously with, the enforcement of the Guaranteed
Parties' rights hereunder, to exercise any right or remedy which it or they may
have against any Collateral. The obligations of the Guarantor hereunder are
independent of the obligations of any other Obligor of the Guaranteed
Obligations or of any Borrower, and a separate action or actions may be brought
and prosecuted against the Guarantor whether or not action is brought against
any other Obligor or any Borrower, and whether or not any such Persons are
joined in any such action or actions.
Section 1.4 Waiver. In addition to the waivers contained in Section
1.1 hereof, the Guarantor waives, and agrees that it shall not at any time
insist upon, plead or in any manner whatever claim or take the benefit or
advantage of, any appraisal, valuation, stay, extension, marshalling of assets
or redemption or similar laws, or exemption, whether now or at any time
hereafter in force, which may delay, prevent or otherwise affect the performance
by the Guarantor of its obligations under, or the enforcement by the Agent or
the Guaranteed Parties of, this Guarantee. The Guarantor hereby waives
diligence, presentment and demand (whether for nonpayment or protest or of
acceptance, maturity, extension of time, change in nature or form of the
Guaranteed Obligations, acceptance of further security, release of further
security, composition or agreement arrived at as to the amount of, or the terms
of, the Guaranteed Obligations, notice of adverse change in any Borrower's or
any other Obligor's financial condition or any other fact which might materially
increase the risk to the Guarantor) with respect to any of the Guaranteed
Obligations or all other demands whatsoever and waives notice of default or any
failure on the part of any Borrower or any other Obligor to perform and comply
with any covenant, term or condition of the Credit Agreement or any other Loan
Document. The Guarantor further waives all notices which may be required by
statute or rule of law, now or hereafter in effect, to preserve intact any
rights against the Guarantor and waives the benefit of all provisions of law
which are or might be in conflict with the terms of this Guarantee. Without
limiting the generality of the foregoing, the Guarantor hereby specifically
waives the benefits of N.C. Gen. Stat. Sections 26-7 through 26-9, inclusive.
The Guarantor hereby waives any requirement on the part of any holder of any
note to mitigate the damages resulting from any default under such note. The
Guarantor represents, warrants and agrees that, as of the date of this
Guarantee, its obligations under this Guarantee are not subject to any offsets
or defenses against any Guaranteed Party or any Borrower. The Guarantor further
agrees that its obligations under this Guarantee shall not be subject to any
counterclaims, offsets or defenses against any Guaranteed Party or any Borrower
which may arise in the future.
Section 1.5 Benefit Of Guarantee. The provisions of this Guarantee
are for the ratable benefit of the Guaranteed Parties and their respective
successors and permitted transferees, endorsees and assigns, and nothing herein
contained shall impair, as among the Borrowers, the Guarantor and the Guaranteed
Parties, the obligations of the Borrowers and the Guarantor under the Loan
Documents. In the event all or any part of the Guaranteed Obligations are
transferred, endorsed or assigned by the Guaranteed Parties to any Person or
Persons in
4
accordance with the terms of the Credit Agreement, any reference to "Guaranteed
Parties" herein shall be deemed to refer equally to such Person or Persons.
Section 1.6 Modification Of Guaranteed Obligations. If the
Guaranteed Parties shall at any time or from time to time, with or without the
consent of, or notice to, the Guarantor:
(a) make Loans and extend other credit to any Borrower, change the
time, manner or place of payment of, or any other term of, all or any portion
of, the Guaranteed Obligations, or otherwise waive or consent to any departure
from the terms of any Loan Document;
(b) take any action under or in respect of the Loan Documents in the
exercise of any remedy, power or privilege contained therein or available to it
at law, equity or otherwise, or waive or refrain from exercising any such
remedies, powers or privileges;
(c) amend or modify, in any manner whatsoever, the Loan Documents;
(d) extend or waive the time for and of the Guarantor's, any Borrower's
or any other Person's performance of, or compliance with, any term, covenant or
agreement on its part to be performed or observed under the Loan Documents, or
waive such performance or compliance or consent to a failure of, or departure
from, such performance or compliance;
(e) take and hold Collateral for the payment of the Guaranteed
Obligations, or sell, exchange, release, dispose of, or otherwise deal with, any
Collateral to secure any indebtedness of the Guarantor or any Borrower to the
Guaranteed Parties;
(f) release or limit the liability of anyone who may be liable in any
manner for the payment of any amounts owed by the Guarantor or any Borrower to
the Guaranteed Parties;
(g) modify or terminate the terms of any intercreditor or subordination
agreement pursuant to which claims of other creditors of the Guarantor or any
Borrower are subordinated to the claims of any of the Guaranteed Parties; and/or
(h) apply any sums by whomever paid or however realized to any amounts
owing by the Guarantor or the Borrowers to the Guaranteed Parties in such manner
as the Guaranteed Parties shall determine in their discretion;
then the Guaranteed Parties shall not incur any liability to the Guarantor
pursuant hereto as a result thereof and no such action shall impair or release
the obligations of the Guarantor under this Guarantee.
Section 1.7 Reinstatement. This Guarantee shall remain in full force
and effect and continue to be effective in the event any petition is filed by or
against any of the Borrowers, the Guarantor or any other Person for liquidation
or reorganization, in the event any of the Borrowers, the Guarantor or any other
Person becomes insolvent or makes an assignment for the benefit of creditors or
in the event a receiver or trustee is appointed for all or any significant part
5
of any of the Borrowers', the Guarantor's or such other Person's assets, and
shall continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Guaranteed Obligations, or any part thereof,
is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by the Guaranteed Parties, whether as a
"voidable preference", "fraudulent conveyance", or otherwise, all as though such
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Guaranteed
Obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
Section 1.8 Waiver Of Subrogation. THE GUARANTOR HEREBY
IRREVOCABLY WAIVES UNTIL INDEFEASIBLE PAYMENT IN FULL OF THE OBLIGATIONS ALL
RIGHTS OF SUBROGATION (WHETHER CONTRACTUAL, UNDER SECTION 509 OF THE BANKRUPTCY
CODE, UNDER COMMON LAW, OR OTHERWISE) TO THE CLAIMS OF THE GUARANTEED PARTIES
AGAINST ANY BORROWER AND ALL CONTRACTUAL, STATUTORY OR COMMON LAW RIGHTS OF
CONTRIBUTION, REIMBURSEMENT, INDEMNIFICATION AND SIMILAR RIGHTS AND "CLAIMS" (AS
SUCH TERM IS DEFINED IN THE BANKRUPTCY CODE) AGAINST ANY BORROWER OR ANY OTHER
OBLIGOR WHICH ARISE IN CONNECTION WITH, OR AS A RESULT OF, THIS GUARANTEE.
Section 1.9 Continuing Guarantee; Transfer Of Notes. This Guarantee
is a continuing guaranty and shall (i) remain in full force and effect until
payment and performance in full (including after the Termination Date) of the
Guaranteed Obligations and termination of the Lenders' Commitments, (ii) be
binding upon the Guarantor and its successors and permitted transferees and
assigns, and (iii) inure, together with the rights and remedies of the
Guaranteed Parties hereunder, to the benefit of the Guaranteed Parties and their
respective permitted successors, transferees, endorsees and assigns. Without
limiting the generality of foregoing clause (iii), any Lender or the Agent may,
except as limited by the express terms of the Credit Agreement, assign or
otherwise transfer any note or Commitment held by it to any other Person or
entity, and such other Person or entity shall thereupon become vested with all
the benefits in respect thereof granted to such Guaranteed Party herein or
otherwise.
Section 1.10 Real Property Security. The Guarantor agrees that the
Agent or its designee, in its sole discretion, without notice or demand and
without affecting the liability of the Guarantor under this Guarantee, may
foreclose, pursuant to the terms of the Loan Documents and/or applicable law, on
any mortgages and the interests in real property secured thereby by nonjudicial
or other sale. The Guarantor understands that the exercise by any Guaranteed
Party or the Agent, or any of them, of certain rights and remedies contained in
the Credit Agreement may affect or eliminate the Guarantor's right of
subrogation and reimbursement against the Borrowers and any other Obligors and
that the Guarantor may therefore incur a partially or totally nonreimbursable
liability hereunder. Nevertheless, the Guarantor hereby authorizes and empowers
the Agent, any Lender and the Letter of Credit Issuer to exercise, in its sole
discretion, any rights and remedies, or any combination thereof, which may then
be available, since it is the intent and purpose of the Guarantor that the
obligations hereunder shall be absolute, independent and unconditional under any
and all circumstances. The Guarantor waives all rights and defenses arising out
of an election of remedies by the Guaranteed Parties, even though that election
of remedies, such as a nonjudicial foreclosure with respect to security for a
Guaranteed
6
Obligation, has destroyed the Guarantor's rights of subrogation and
reimbursement against any Borrower or other Obligor by the operation of law or
otherwise. Notwithstanding any foreclosure of the lien of any mortgage with
respect to any or all real or personal property secured thereby, whether by the
exercise of any power of sale contained therein, by an action for judicial
foreclosure or by an acceptance of a deed in lieu of foreclosure, the Guarantor
shall remain bound under this Guarantee, including its obligation to pay any
deficiency after a nonjudicial foreclosure.
Section 2 SUBORDINATION OF OTHER OBLIGATIONS. Unless waived by the
Agent and the requisite number of Lenders in accordance with the Credit
Agreement, any indebtedness of any Borrower now or hereafter held by the
Guarantor is hereby subordinated in right of payment to the Guaranteed
Obligations, and any such indebtedness of any Borrower to the Guarantor
collected or received by the Guarantor after an Event of Default has occurred
and is continuing shall be held in trust for the Agent on behalf of the
Guaranteed Parties and shall forthwith be paid over to the Agent for the benefit
of the Guaranteed Parties to be credited and applied against the Guaranteed
Obligations but without affecting, impairing or limiting in any manner the
liability of the Guarantor under any other provision of this Guarantee.
Section 3 DELIVERIES. In a form satisfactory to the Agent, the
Guarantor shall deliver to the Agent, concurrently with the execution of this
Guarantee, the other Loan Documents and instruments, certificates and documents
as are required to be delivered by the Guarantor to the Guaranteed Parties under
the conditions to closing set forth in the Credit Agreement unless such
conditions are waived by the Agent.
Section 4 REPRESENTATIONS AND COVENANTS
Section 4.1 Organization and Qualification. The Guarantor is duly
incorporated and validly existing in good standing under the laws of the state
of North Carolina which is the only jurisdiction in which qualification is
necessary in order for it to own or lease its property and conduct its business
as of the Closing Date.
Section 4.2 Authorization, Validity and Enforceability of this
Agreement. The Guarantor has the power and authority to execute, deliver and
perform this Agreement and to guaranty the Guaranteed Obligations. The Guarantor
has taken all necessary action (including obtaining approval of its stockholders
if necessary) to authorize its execution, delivery, and performance of this
Agreement. This Agreement has been duly executed and delivered by the Guarantor,
and constitutes the legal, valid and binding obligations of the Guarantor,
enforceable against it in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally, by general equitable
principles or by principles of good faith and fair dealing. The Guarantor's
execution, delivery, and performance of this Agreement does not and will not
conflict with, or constitute a violation or breach of, or result in the
imposition of any Lien upon the property of the Guarantor or any of its
Subsidiaries, by reason of the terms of (a) any contract, mortgage, lease,
agreement, indenture, or instrument to which the Guarantor is a party or which
is binding upon it, (b) any Requirement of Law applicable to the Guarantor or
any of its Subsidiaries, or (c) the certificate or articles of incorporation or
by-laws of the Guarantor or the limited liability company agreement of any of
its Subsidiaries.
7
Section 4.3 Covenants. The covenants set forth in the Credit
Agreement which are applicable to the Guarantor as indicated therein are hereby
incorporated into this Section 4.3 by reference and the Guarantor hereby agrees
to comply with each such covenant which is applicable to the Guarantor. In
addition to the foregoing, the Guarantor hereby covenants to comply with each of
the covenants set forth in Sections 7.9 (Mergers, Consolidations or Sales), 7.13
(Debt), 7.14 (Prepayment), 7.17 (Business Conducted), 7.18 (Liens), 7.19 (Sale
and Leaseback Transactions) and 7.20 (New Subsidiaries) of the Credit Agreement
as if references to a "Borrower" thereunder were references to the Guarantor,
and such covenants are hereby incorporated herein mutatis mutandis; provided
that notwithstanding the foregoing, the Guarantor shall be permitted to make
loans to any Excess Collateral Provider provided that such loans (i) are
subordinated to the Guarantor's obligations hereunder pursuant to the terms of
the Intercompany Subordination Agreement and (ii) are pledged to the Agent as
additional security for the Guarantor's obligations hereunder.
Section 5 FURTHER ASSURANCES. The Guarantor agrees, upon the
written request of the Agent, and at the Guarantor's expense, to execute and
deliver to the Agent, from time to time, any additional instruments or documents
considered necessary by the Agent to cause this Guarantee to be, become or
remain valid and effective in accordance with its terms.
Section 6 PAYMENTS FREE AND CLEAR OF TAXES.
Section 6.1 Payment of Taxes. Any and all payments by the Guarantor
hereunder shall be made free and clear of and without deduction for any and all
Taxes. If the Guarantor shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Guaranteed Party, (i) the sum
payable shall be increased as may be necessary so that after making all required
deductions of Taxes (including deductions of Taxes applicable to additional sums
payable under this Section 6) such Guaranteed Party receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Guarantor shall make such deductions and (iii) the Guarantor shall pay the full
amount so deducted to the relevant taxation authority or other authority in
accordance with applicable law.
Section 6.2 Other Taxes. In addition, the Guarantor agrees to pay
any present or future stamp, documentary, excise, privilege, intangible or
similar levies that arise at any time or from time to time (i) from any payment
made hereunder, (ii) from the transfer of the rights of any Guaranteed Party
hereunder to any transferee, or (iii) from the execution or delivery by the
Guarantor of, or from the filing or recording or maintenance of, or otherwise
with respect to the exercise by any Guaranteed Party of its rights hereunder
(hereinafter referred to as "Other Taxes").
Section 6.3 Indemnification. The Guarantor hereby indemnifies each
Guaranteed Party for the full amount of (i) Taxes imposed on or with respect to
amounts payable hereunder (including, without limitation and without
duplication, any Taxes imposed by any jurisdiction on amounts payable under this
Section 6), (ii) Other Taxes (including, without limitation and without
duplication, any Taxes imposed by any jurisdiction on amounts payable under this
Section 6), and (iii) any liability (including penalties, interest and
reasonable expenses) arising solely therefrom or with respect thereto. Payment
of this indemnification shall be made within 15 days from the date of such
Guaranteed Party certifying and setting forth in
8
reasonable detail the calculation thereof as to the amount and type of such
Taxes. Any such certificate submitted by the Guaranteed Party shall, absent
manifest or demonstrable error, be final, conclusive and binding on all parties.
Section 6.4 Receipts. Within 30 days after having received a
receipt of Taxes or Other Taxes, the applicable Guarantor will furnish to the
Agent the original or a certified copy of a receipt evidencing payment thereof.
Section 6.5 Survival. Without prejudice to the survival of any
other agreement of the Guarantor hereunder, the agreements and obligations of
the Guarantor contained in this Section 6 shall survive the payment in full of
the Guaranteed Obligations and termination of the Lenders' Commitments.
Section 7 RIGHT OF SET-OFF. In addition to and not in limitation
of all rights of offset that any Guaranteed Party or other holder of a note may
have under applicable law or under any Loan Document, each Guaranteed Party,
other holder of a note and/or their respective Affiliates shall upon the
occurrence and during the continuation of any Event of Default and whether or
not such Guaranteed Party or such holder has made any demand or the Guarantor's
obligations are matured, have the right to appropriate and apply to the payment
of each of the Guarantor's obligations hereunder, all deposits (general or
special, time or demand, provisional or final) then or thereafter held by and
other indebtedness or property then or thereafter owing by such Guaranteed
Party, other holder and/or their respective Affiliates to the Guarantor, whether
or not related to this Guarantee or any transaction hereunder. The Agent agrees
that, upon the Agent's receipt of notice that a Guaranteed Party has exercised
any rights of set-off hereunder, the Agent shall promptly send notice to the
Guarantor in accordance with Section 8.5 hereof; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application.
Section 8 MISCELLANEOUS.
Section 8.1 Amendments. Any amendment or waiver of any provision of
this Guarantee and any consent to any departure by the Guarantor from any
provision of this Guarantee shall be effective only if made or given in
compliance with all of the terms and provisions of Section 11.1 of the Credit
Agreement.
Section 8.2 Expenses. The Guarantor shall promptly pay to the
Agent, for the ratable benefit of the Guaranteed Parties, the amount of any and
all costs and expenses of the Guaranteed Parties (both before and after the
execution hereof) in connection with any matters contemplated by or arising out
of this Guarantee or any of the Loan Documents whether (a) costs and expenses of
the Agent to prepare, negotiate or execute (i) any amendment to, modification of
or extension of this Guarantee or any other Loan Document to which the Guarantor
is a party or (ii) any instrument, document or agreement in connection with any
sale or attempted sale of any interest herein to any participant, (b) to
commence, defend, or intervene in any litigation or to file a petition,
complaint, answer, motion or other pleadings necessary to protect or enforce the
rights of the Guaranteed Parties under this Guarantee or any other Loan
Document, (c) to take any other action in or with respect to any suit or
proceeding (bankruptcy or otherwise) necessary to protect the rights of the
Guaranteed Parties under this Guarantee or any other Loan Document
9
or to respond to any subpoena, deposition or interrogatory with respect to any
litigation involving the Guarantor, or (d) to attempt to enforce or to enforce
any rights of the Guaranteed Parties to collect any of the Guaranteed
Obligations, including all reasonable fees and expenses of attorneys and
paralegals.
Section 8.3 Headings. The headings in this Guarantee are for
purposes of reference only and shall not otherwise affect the meaning or
construction of any provision of this Guarantee.
Section 8.4 Severability. The provisions of this Guarantee are
severable, and if any clause or provision shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Guarantee in any jurisdiction.
Section 8.5 Notices. All notices, requests and other communications
(a) to the Agent hereunder shall be in writing and sent by certified or
registered mail, return receipt requested, or by overnight delivery services,
with all charges prepaid and shall be given to the Agent at its address or cable
or telecopy number for notices as set forth in Section 13.8 of the Credit
Agreement and (b) to the Guarantor hereunder shall be in writing and sent by
certified or registered mail, return receipt requested, or by overnight delivery
services, with all charges prepaid and shall be given to the Guarantor at its
address, cable or telecopy number set forth on the signature page or such other
address or cable or telecopy number as such party may hereafter specify by
notice to the other party. All such notices and correspondence shall be deemed
given (i) if sent by certified or registered mail, three Business Days after
being sent, (ii) if sent by overnight delivery service, when received at the
above stated addresses or when delivery is refused and (iii) if sent by telex or
facsimile transmission, when receipt of such transmission is acknowledged.
Section 8.6 Remedies Cumulative. Each right, power and remedy of
the Guaranteed Parties provided in this Guarantee or now or hereafter existing
at law or in equity or by statute or otherwise shall be cumulative and
concurrent and shall be in addition to every other right, power or remedy
provided for in this Guarantee or now or hereafter existing at law or in equity
or by statute or otherwise. The exercise or partial exercise by the Guaranteed
Parties of any one or more of such rights, powers or remedies shall not preclude
the simultaneous or later exercise by the Guaranteed Parties of all such other
rights, powers or remedies, and no failure or delay on the part of the
Guaranteed Parties to exercise any such right, power or remedy shall operate as
a waiver thereof.
Section 8.7 Statute of Limitations. To the full extent permitted by
applicable law, the Guarantor hereby waives the right to plead any statute of
limitations as a defense to performance of its obligations under, or enforcement
of, this Guarantee.
Section 8.8 Final Expression. This Guarantee, together with any
other agreement executed in connection herewith, is intended by the parties as a
final expression of the Guarantee and is intended as a complete and exclusive
statement of the terms and conditions thereof. Acceptance of or acquiescence in
a course of performance rendered under this
10
Guarantee shall not be relevant to determine the meaning of this Guarantee even
though the accepting or acquiescing party had knowledge of the nature of the
performance and opportunity for objection.
Section 8.9 Financial Status. The Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of each
Borrower and any and all endorsers and/or other Obligors of any instrument or
document evidencing all or any part of the Guaranteed Obligations and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations or any part thereof that diligent inquiry would reveal, and the
Guarantor hereby agrees that the Guaranteed Parties shall have no duty to advise
the Guarantor of information known to the Guaranteed Parties regarding such
condition or any such circumstances. In the event the Guaranteed Parties, in
their discretion, undertake at any time or from time to time to provide any such
information to the Guarantor, the Guaranteed Parties shall be under no
obligation (i) to undertake any investigation not a part of their regular
business routine, (ii) to disclose any information which pursuant to accepted or
reasonable commercial lending practices the Guaranteed Parties wish to maintain
confidential, or (iii) to make any other or future disclosures of such
information or any other information to the Guarantor.
Section 8.10 Assignability. This Guarantee shall be binding on the
Guarantor and its successors and permitted assigns and transferees and shall
inure to the benefit of the Guaranteed Parties and their respective successors,
transferees, endorsees and assigns as permitted under the Credit Agreement. No
Guarantor may assign this Guarantee.
Section 8.11 Non-Waiver. The failure of the Guaranteed Parties to
exercise any right or remedy hereunder, or promptly to enforce any such right or
remedy, shall not constitute a waiver thereof, nor give rise to any estoppel
against the Guaranteed Parties, nor excuse the Guarantor from its obligations
hereunder.
Section 8.12 Termination. Subject to the provisions of Sections 1.7
and 6.5, this Guarantee shall terminate upon the receipt by each of the
Guaranteed Parties of the payment (or prepayment) and performance in full of the
Guaranteed Obligations and any other amounts which may be owing hereunder and
termination of the Lenders' Commitments, or the written release of the Guarantor
by the Guaranteed Parties, whichever shall occur first. At the time of such
termination, the Guaranteed Parties, at the request and expense of the
Guarantor, will execute and deliver to the Guarantor a proper instrument or
instruments acknowledging the satisfaction and termination of this Guarantee.
The Agent may release the obligations of the Guarantor hereunder to the extent
permitted pursuant to the terms of the Credit Agreement
Section 8.13 Counterparts. This Guarantee may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which, when so executed and delivered, shall be an
original, but all of which shall together constitute one and the same agreement.
Section 8.14 Governing Law. THE VALIDITY, INTERPRETATION AND
ENFORCEMENT OF THIS GUARANTEE AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION
WITH THIS GUARANTEE, WHETHER SOUNDING IN CONTRACT,
11
TORT, EQUITY OR OTHERWISE, SHALL BE GOVERNED BY THE LAWS AND DECISIONS OF THE
STATE OF NORTH CAROLINA.
Section 8.15 SUBMISSION TO JURISDICTION; WAIVERS.
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY
BE BROUGHT IN THE COURTS OF THE STATE OF NORTH CAROLINA OR OF THE UNITED STATES
OF AMERICA LOCATED IN THE WESTERN DISTRICT OF NORTH CAROLINA, AND BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH OF THE GUARANTOR AND THE AGENT CONSENTS,
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. THE GUARANTOR AND THE AGENT IRREVOCABLY WAIVE ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT. NOTWITHSTANDING
THE FOREGOING: (1) THE AGENT SHALL HAVE THE RIGHT TO BRING ANY ACTION OR
PROCEEDING AGAINST THE GUARANTOR OR ITS PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION THE AGENT DEEMS NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE
COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS AND (2) EACH OF THE PARTIES
HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THE COURTS DESCRIBED IN THE
IMMEDIATELY PRECEDING SENTENCE MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE
THOSE JURISDICTIONS;
(b) THE GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS
UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED
MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO THE GUARANTOR AT ITS ADDRESS SET
FORTH HEREIN AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS
AFTER THE SAME SHALL HAVE BEEN SO DEPOSITED IN THE U.S. MAILS POSTAGE PREPAID.
NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF THE AGENT TO SERVE LEGAL
PROCESS BY ANY OTHER MANNER PERMITTED BY LAW;
(c) THE GUARANTOR AND THE AGENT IRREVOCABLY WAIVE THEIR RESPECTIVE
RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR
ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE GUARANTOR AND THE AGENT AGREE
THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS
12
SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE
OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS;
(d) THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES THE
RIGHT TO ASSERT ANY SETOFF, COUNTERCLAIM OR CROSS-CLAIM IN RESPECT OF, AND ALL
STATUTES OF LIMITATIONS WHICH MAY BE RELEVANT TO, SUCH ACTION OR PROCEEDING; AND
(e) THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES DUE
DILIGENCE, DEMAND, PRESENTMENT AND PROTEST AND ANY NOTICES THEREOF AS WELL AS
NOTICE OF NONPAYMENT.
Section 8.16 Limitation Of Liability. EXCEPT AS EXPRESSLY PROVIDED
HEREIN, NO CLAIM MAY BE MADE BY THE GUARANTOR OR THE AGENT OR ANY OTHER PERSON
AGAINST THE AGENT, THE GUARANTOR OR THE AFFILIATES, DIRECTORS, OFFICERS,
EMPLOYEES, COUNSEL, REPRESENTATIVES, AGENTS OR ATTORNEYS-IN-FACT OF ANY OF THEM
FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY
CLAIM FOR BREACH OF CONTRACT OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR
RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, AND
THE GUARANTOR AND THE AGENT EACH HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX
UPON ANY CLAIM FOR SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN
OR SUSPECTED TO EXIST IN ITS FAVOR.
Section 8.17 Payments. Notwithstanding any provision to the
contrary herein or in any Loan Document, all payments made under or in
connection with this Guarantee and the other Loan Documents shall be in lawful
currency of the United States.
[SIGNATURE PAGE FOLLOWS]
13
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly
executed and delivered as of the date first above written.
ENPRO INDUSTRIES, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Xxxxxx Xxxxxx, Vice President and Treasurer
Address: 0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Facsimile: 000-000-0000
