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EXHIBIT 10.47
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY is entered into as of June 29, 1995,
by INMAC S.A., a French corporation, INMAC HOLDINGS LIMITED., a limited
liability company organized under the laws of the United Kingdom and registered
in England and Wales, INMAC (U.K). LIMITED a limited liability company organized
under the laws of the United Kingdom and registered in England and Wales, INMAC
AKTIEBOLAG, a corporation organized under the laws of Sweden and INMAC
GESELLSCHAFT MIT BESCHRaNKTER HAFTUNG, a corporation organized under the laws of
Germany (each a "SUBSIDIARY GUARANTOR" and together the "SUBSIDIARY
GUARANTORS"), in favor of and for the benefit of The Prudential Insurance
Company of America, as the original purchaser (the "PURCHASER") of the Notes (as
hereinafter defined) and all subsequent Noteholders.
RECITALS
A. Inmac, B.V., a corporation organized under the laws of The
Netherlands, ("COMPANY"), has entered into that certain Note Agreement dated as
of June 29, 1995 with the Purchaser (said Note Agreement, as it may hereafter be
amended, supplemented or otherwise modified from time to time, being the "NOTE
AGREEMENT").
B. Each of the Subsidiary Guarantors and the Company is a
wholly owned Subsidiary of Inmac Corp., a Delaware corporation ("PARENT").
C. The proceeds of the Notes will be advanced either to the
Subsidiary Guarantors or to repay indebtedness of the Parent, a significant
portion of which the Subsidiary Guarantors have guaranteed, and thus the
Guaranteed Obligations (as hereinafter defined) are being incurred for and will
inure to the benefit of each of the Subsidiary Guarantors (which benefits are
hereby acknowledged). Parent is entering into a Guaranty dated as of June 29,
1995 (the "PARENT GUARANTY") pursuant to which it is guaranteeing the
obligations of Company under the Note Agreement and the Notes.
D. It is a condition precedent to the purchase of the Notes
under the Note Agreement that Company's obligations thereunder be guaranteed by
each of the Subsidiary Guarantors.
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E. Each of the Subsidiary Guarantors is willing irrevocably
and unconditionally to guaranty such obligations of Company.
NOW, THEREFORE, based upon the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to induce the Purchaser to enter into the Note
Agreement and to purchase the Notes thereunder, each of the Subsidiary
Guarantors hereby jointly and severally agrees as follows:
SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS. Capitalized terms defined in the Note
Agreement or the Parent Guaranty and not otherwise defined herein shall have the
respective meanings assigned to them in the Note Agreement and the Parent
Guaranty.
1.2 INTERPRETATION.
(a) References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Subsidiary Guaranty
unless otherwise specifically provided. Except as otherwise specified
herein, all accounting terms not otherwise defined herein shall have
the meanings assigned to them under GAAP.
(b) In the event of any conflict or inconsistency between the
terms, conditions and provisions of this Subsidiary Guaranty and the
terms, conditions and provisions of the Note Agreement, the terms,
conditions and provisions of this Subsidiary Guaranty shall prevail.
SECTION 2. THE GUARANTY
2.1 GUARANTY OF THE GUARANTEED OBLIGATIONS. Subject to the provisions
of subsection 2.2, each of the Subsidiary Guarantors hereby, jointly and
severally, irrevocably and unconditionally guarantees, as primary obligor and
not merely as surety, the due and punctual payment in full of all Guaranteed
Obligations when the same shall become due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise (including
amounts that would become due but for the operation of any automatic stay under
Section 362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a) or under any
similar provisions of any applicable Bankruptcy Law. The term "GUARANTEED
OBLIGATIONS" is used herein in its most comprehensive sense and includes:
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(a) any and all liabilities or other obligations of Company in
respect of or under the Notes, including principal of, interest on and
Yield Maintenance Amounts in respect of, the Notes (and in the
currencies in which the Notes may be denominated), or any other Note
Document, including legal fees and expenses of counsel, allocated costs
of internal counsel, indemnities, and other fees and costs, whether
such liabilities or other obligations be absolute or contingent,
liquidated or unliquidated, due or not due, or in existence on the date
hereof or arising hereafter (including pursuant to any renewal,
extension or modification of any Note or Note Document); and
(b) those expenses set forth in subsection 2.8 hereof.
2.2 CONTRIBUTION BY A SUBSIDIARY GUARANTOR. Each of the Subsidiary
Guarantors under this Subsidiary Guaranty, and each guarantor under other
guaranties, if any, relating to the Note Agreement, including the Parent
Guaranty (the "RELATED GUARANTIES") which contain a contribution provision
similar to that set forth in this subsection 2.2, together desire to allocate
among themselves (collectively, the "CONTRIBUTING GUARANTORS"), in a fair and
equitable manner, their obligations arising under this Subsidiary Guaranty and
the Related Guaranties. Accordingly, in the event any payment or distribution is
made on any date by a Subsidiary Guarantor under this Subsidiary Guaranty or a
guarantor under a Related Guaranty (a "FUNDING GUARANTOR") that exceeds its Fair
Share (as defined below) as of such date, that Funding Guarantor shall be
entitled to a contribution from each of the other Contributing Guarantors in the
amount of such other Contributing Guarantor's Fair Share Shortfall (as defined
below) as of such date, with the result that all such contributions will cause
each Contributing Guarantor's Aggregate Payments (as defined below) to equal its
Fair Share as of such date. "FAIR SHARE" means, with respect to a Contributing
Guarantor as of any date of determination, an amount equal to (i) the ratio of
(x) the Fair Share Contribution Amount (as defined below) with respect to such
Contributing Guarantor to (y) the aggregate of the Fair Share Contribution
Amounts with respect to all Contributing Guarantors, multiplied by (ii) the
aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Subsidiary Guaranty and the Related Guaranties in respect
of the obligations guaranteed. "FAIR SHARE SHORTFALL" means, with respect to a
Contributing Guarantor as of any date of determination, the excess, if any, of
the Fair Share of such Contributing Guarantor over the Aggregate Payments of
such Contributing Guarantor. "FAIR SHARE CONTRIBUTION AMOUNT" means, with
respect to a Contributing Guarantor as of any date of determination, the maximum
aggregate amount of the obligations of such Contributing Guarantor under this
Subsidiary Guaranty and/or the Related Guaranties, as applicable, that would not
render its obligations hereunder or thereunder subject to avoidance as a
fraudulent transfer or
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conveyance under (but only to the extent applicable) Section 548 of Title 11 of
the United States Code or any comparable or similar provisions of law applicable
to such Contributing Guarantor; provided that, solely for purposes of
calculating the "Fair Share Contribution Amount" with respect to any
Contributing Guarantor for purposes of this subsection 2.2, any assets or
liabilities of such Contributing Guarantor arising by virtue of any rights to
subrogation, reimbursement or indemnification or any rights to or obligations of
contribution hereunder or under any similar provision contained in a Related
Guaranty shall not be considered as assets or liabilities of such Contributing
Guarantor. "AGGREGATE PAYMENTS" means, with respect to a Contributing Guarantor
as of any date of determination, an amount equal to (i) the aggregate amount of
all payments and distributions made on or before such date by such Contributing
Guarantor in respect of this Subsidiary Guaranty and/or the Related Guaranties
(including in respect of this subsection 2.2 or any similar provision contained
in a Related Guaranty) minus (ii) the aggregate amount of all payments received
on or before such date by such Contributing Guarantor from the other
Contributing Guarantors as contributions under this subsection 2.2 or any
similar provision contained in a Related Guaranty. The amounts payable as
contributions hereunder and under similar provisions in the Related Guaranties
shall be determined as of the date on which the related payment or distribution
is made by the applicable Funding Guarantor. The allocation among Contributing
Guarantors of their obligations as set forth in this subsection 2.2 or any
similar provision contained in a Related Guaranty shall not be construed in any
way to limit the liability of any Contributing Guarantor hereunder or under a
Related Guaranty. Each Contributing Guarantor under a Related Guaranty is a
third party beneficiary to the contribution agreement set forth in this
subsection 2.2. In determining the Fair Share Contribution Amount of the
Contributing Guarantors, the Contributing Guarantors have agreed amongst
themselves, and by their acceptance of this Subsidiary Guaranty, each holder of
the Note agrees, that notwithstanding the foregoing provisions of this
subsection 2.2 any demand for payment of any Guaranteed Obligation by Subsidiary
Guarantor under this Subsidiary Guaranty may be satisfied by payment(s) strictly
in accordance with such request by any other Subsidiary Guarantor in accordance
with the terms of this Subsidiary Guaranty; provided that such allocation
amongst the Contributing Guarantors shall in no manner limit or restrict the
ability and right of the Noteholders to make claims under the Related Guarantees
or limit the liability of the Contributing Guarantors under the Related
Guarantees and is intended solely as a limit amongst the Contributing Guarantors
on the allocation mechanism described in this subsection 2.2.
2.3 PAYMENT BY SUBSIDIARY GUARANTOR; APPLICATION OF PAYMENTS. Subject
to the provisions of subsection 2.2, each Subsidiary Guarantor hereby agrees, in
furtherance of the foregoing and not in limitation of any other right which any
Person may have at law or in equity against any Subsidiary Guarantor by virtue
hereof, that upon the failure of Company, Parent or any other Subsidiary
Guarantor
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to pay any of the Guaranteed Obligations when and as the same shall become due,
whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise (including amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11
U.S.C. Section 362(a)), or the equivalent provision of any other applicable
bankruptcy or insolvency law, any Subsidiary Guarantor will upon demand of any
Noteholder pay, or cause to be paid, in cash, to such holder on a ratable basis,
an amount equal to the sum of the unpaid principal amount of all Guaranteed
Obligations then due as aforesaid, accrued and unpaid interest on such
Guaranteed Obligations (including interest which, but for the filing of a
petition in bankruptcy with respect to Company or a Subsidiary Guarantor, would
have accrued on such Guaranteed Obligations, whether or not a claim is allowed
against such debtor for such interest in any such bankruptcy proceeding) and all
other Guaranteed Obligations then owed to/or Noteholders as aforesaid. All such
payments shall be applied promptly from time to time:
First, to the payment of the costs and expenses of any
collection, enforcement or other realization under this Subsidiary
Guaranty, including reasonable compensation to, and all expenses,
liabilities and advances made or incurred by, any agent or counsel
acting on behalf of the Noteholders in connection therewith;
Second, to the payment of all other Guaranteed Obligations;
and
Third, after payment in full of all Guaranteed Obligations, to
the payment to Subsidiary Guarantor, or its successors or assigns, or
to whomsoever may be lawfully entitled to receive the same or as a
court of competent jurisdiction may direct, of any surplus then
remaining from such payments.
2.4 LIABILITY OF EACH SUBSIDIARY GUARANTOR ABSOLUTE. Each Subsidiary
Guarantor agrees that its obligations hereunder are joint and several,
irrevocable, absolute, independent and unconditional and shall not be affected
by any circumstance which constitutes a legal or equitable discharge of a
guarantor or surety other than payment in full of the Guaranteed Obligations. In
furtherance of the foregoing and without limiting the generality thereof, each
Subsidiary Guarantor agrees as follows:
(a) This Subsidiary Guaranty is a guaranty of payment when due
and not of collectibility.
(b) Any Noteholder may enforce this Subsidiary Guaranty upon
the occurrence of any Event of Default notwithstanding the existence of
any
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dispute between Noteholders and Company with respect to the existence
of such Event of Default.
(c) The obligations of each Subsidiary Guarantor hereunder are
independent of the respective obligations of Company, Parent or the
other Subsidiary Guarantors under the Note Documents and a separate
action or actions may be brought and prosecuted against any Subsidiary
Guarantor whether or not any action is brought against Company, Parent
or any of the other Subsidiary Guarantors and whether or not Company,
Parent or any of the other Subsidiary Guarantors is joined in any such
action or actions.
(d) Any Subsidiary Guarantor's payment of a portion, but not
all, of the Guaranteed Obligations shall in no way limit, affect,
modify or abridge such Subsidiary Guarantor's liability for any portion
of the Guaranteed Obligations which has not been paid. Without limiting
the generality of the foregoing, if any Noteholder is awarded a
judgment in any suit brought to enforce any Subsidiary Guarantor's
covenant to pay a portion of the Guaranteed Obligations, such judgment
shall not be deemed to release such Subsidiary Guarantor from its
covenant to pay the portion of the Guaranteed Obligations that is not
the subject of such suit.
(e) Any Noteholder, upon such terms as it deems appropriate,
without notice or demand and without affecting the validity or
enforceability of this Subsidiary Guaranty or giving rise to any
reduction, limitation, impairment, discharge or termination of any
Subsidiary Guarantor's liability hereunder, from time to time may (i)
renew, extend, accelerate, increase the rate of interest on, or
otherwise change the time, place, manner or terms of payment of the
Guaranteed Obligations, (ii) settle, compromise, release or discharge,
or accept or refuse any offer of performance with respect to, or
substitutions for, the Guaranteed Obligations or any agreement relating
thereto and/or subordinate the payment of the same to the payment of
any other obligations; (iii) request and accept other guaranties of the
Guaranteed Obligations and take and hold security for the payment of
this Subsidiary Guaranty or the Guaranteed Obligations; (iv) release,
surrender, exchange, substitute, compromise, settle, rescind, waive,
alter, subordinate or modify, with or without consideration, any
security for payment of the Guaranteed Obligations, any other
guaranties of the Guaranteed Obligations, or any other obligation of
any Person with respect to the Guaranteed Obligations; (v) enforce and
apply any security now or hereafter held by or for the benefit of any
Noteholder in respect of this Subsidiary Guaranty or the Guaranteed
Obligations and direct the order or manner of sale thereof, or exercise
any other right or remedy that Noteholders, or any of them, may have
against any
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such security, as such Noteholder(s) in its or their sole discretion
may determine consistent with the Note Documents and any applicable
security agreement, including foreclosure on any such security pursuant
to one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable, and even though
such action operates to impair or extinguish any right of reimbursement
or subrogation or other right or remedy of any Subsidiary Guarantor
against Company or any security for the Guaranteed Obligations; and
(vi) exercise any other rights available to it under any Note Document.
(f) This Subsidiary Guaranty and the obligations of each
Subsidiary Guarantor hereunder shall be valid and enforceable and shall
not be subject to any reduction, limitation, impairment, discharge or
termination for any reason (other than payment in full of the
Guaranteed Obligations), including without limitation the occurrence of
any of the following, whether or not any Subsidiary Guarantor shall
have had notice or knowledge of any of them: (i) any failure or
omission to assert or enforce or agreement or election not to assert or
enforce, or the stay or enjoining, by order of court, by operation of
law or otherwise, of the exercise or enforcement of, any claim or
demand or any right, power or remedy (whether arising under any Note
Document, at law, in equity or otherwise) with respect to the
Guaranteed Obligations or any agreement relating thereto, or with
respect to any other guaranty of or security for the payment of the
Guaranteed Obligations; (ii) any rescission, waiver, amendment or
modification of, or any consent to departure from, any of the terms or
provisions (including without limitation provisions relating to events
of default) of any Note Document, or of any other guaranty or security
for the Guaranteed Obligations, in each case whether or not in
accordance with the terms of any Note Document; (iii) the Guaranteed
Obligations, or any agreement relating thereto, at any time being found
to be illegal, invalid or unenforceable in any respect; (iv) the
application of payments received without instruction from any source
(other than payments received pursuant to any Note Document or from the
proceeds of any security for the Guaranteed Obligations, except to the
extent such security also serves as collateral for indebtedness other
than the Guaranteed Obligations) to the payment of indebtedness other
than the Guaranteed Obligations, even though Noteholders, or any of
them, might have elected to apply such payment to any part or all of
the Guaranteed Obligations; (v) any Noteholder's consent to the change,
reorganization or termination of the corporate structure or existence
of Parent and/or any Subsidiary Guarantor or any of their respective
Subsidiaries and to any corresponding restructuring of the Guaranteed
Obligations; (vi) any failure to perfect or continue perfection of a
security interest in any collateral which secures any of the Guaranteed
Obligations; (vii) any defenses, set-offs or
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counterclaims which Company, Parent or any Subsidiary Guarantor may
allege or assert against any Noteholder in respect of the Guaranteed
Obligations, including but not limited to failure of consideration,
breach of warranty, payment, statute of frauds, statute of limitations,
accord and satisfaction and usury; and (viii) any other act or thing or
omission, or delay to do any other act or thing, which may or might in
any manner or to any extent vary the risk of any Subsidiary Guarantor
as an obligor in respect of the Guaranteed Obligations.
2.5 WAIVERS BY SUBSIDIARY GUARANTORS. Each Subsidiary Guarantor hereby
waives, for the benefit of Noteholders:
(a) any right to require Noteholders, as a condition of
payment or performance by such Subsidiary Guarantor, to (i) proceed
against Company, Parent or any of the other Subsidiary Guarantors or
any other Person, (ii) proceed against or exhaust any security held
from Company, Parent or any of the other Subsidiary Guarantors or any
other Person, (iii) proceed against or have resort to any balance of
any deposit account or credit on the books of any Noteholder in favor
of Company, Parent or any of the other Subsidiary Guarantors or any
other Person, or (iv) pursue any other remedy in the power of any
Noteholder whatsoever;
(b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of Company, Parent or any
of the other Subsidiary Guarantors including any defense based on or
arising out of the lack of validity or the unenforceability of the
Guaranteed Obligations or any agreement or instrument relating thereto
or by reason of the cessation of the liability of Company, Parent or
any of the other Subsidiary Guarantors from any cause other than
payment in full of the Guaranteed Obligations;
(c) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in
amount nor in other respects more burdensome than that of the
principal;
(d) any defense based upon any Noteholder's errors or
omissions in the administration of the Guaranteed Obligations, except
behavior which amounts to bad faith;
(e) (i) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms of this
Subsidiary Guaranty and any legal or equitable discharge of such
Subsidiary Guarantor's obligations hereunder, (ii) the benefit of any
statute of limitations affecting
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such Subsidiary Guarantor's liability hereunder or the enforcement
hereof, (iii) any rights to set-offs, recoupments and counterclaims,
and (iv) promptness, diligence and any requirement that any Noteholder
protect, secure, perfect or insure any security interest or Lien or any
property subject thereto;
(f) notices, demands, presentments, protests, notices of
protest, notices of dishonor and notices of any action or inaction,
including acceptance of this Subsidiary Guaranty, notices of default
under any Note Document, notices of any renewal, extension or
modification of the Guaranteed Obligations or any agreement related
thereto, notices of any extension of credit to Company, Parent or any
of the other Subsidiary Guarantors and notices of any of the matters
referred to in subsection 2.4 and any right to consent to any thereof;
and
(g) any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerate guarantors or
sureties, or which may conflict with the terms of this Subsidiary
Guaranty.
2.6 EACH SUBSIDIARY GUARANTOR'S RIGHTS OF SUBROGATION, CONTRIBUTION,
ETC. Until the Guaranteed Obligations shall have been paid in full, no
Subsidiary Guarantor shall withhold exercise of (a) any claim, right or remedy,
direct or indirect, that such Subsidiary Guarantor now has or may hereafter have
against Company or any of its assets in connection with this Subsidiary Guaranty
or the performance by such Subsidiary Guarantor of its obligations hereunder, in
each case whether such claim, right or remedy arises in equity, under contract,
by statute, under common law or otherwise and including without limitation (i)
any right of subrogation, reimbursement or indemnification that such Subsidiary
Guarantor now has or may hereafter have against Company, (ii) any right to
enforce, or to participate in, any claim, right or remedy that any Noteholder
now has or may hereafter have against Company, and (iii) any benefit of, and any
right to participate in, any collateral or security now or hereafter held by any
Noteholder, and (b) any right of contribution any Subsidiary Guarantor may have
against any other guarantor of any of the Guaranteed Obligations. Each
Subsidiary Guarantor further agrees that, to the extent the agreement to
withhold the exercise of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found by a court of
competent jurisdiction to be void or voidable for any reason, any rights of
subrogation, reimbursement or indemnification such Subsidiary Guarantor may have
against Company or against any collateral or security, and any rights of
contribution such Subsidiary Guarantor may have against any such other
guarantor, shall be junior and subordinate to any rights Noteholders may have
against Company, to all right, title and interest Noteholders may have in any
such collateral or security, and to any
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right Noteholders may have against such other guarantor. Any Noteholder, on
behalf of all Noteholders, may use, sell or dispose of any item of collateral or
security as it sees fit without regard to any subrogation rights such Subsidiary
Guarantor may have, and upon any such disposition or sale any rights of
subrogation such Subsidiary Guarantor may have shall terminate. If any amount
shall be paid to any Subsidiary Guarantor on account of any such subrogation,
reimbursement or indemnification rights at any time when all Guaranteed
Obligations shall not have been paid in full, such amount shall be held in trust
by such Subsidiary Guarantor for the benefit of Noteholders and shall forthwith
be ratably paid over by such Subsidiary Guarantor to each Noteholder for credit
to and application against the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms hereof.
2.7 SUBORDINATION OF OTHER OBLIGATIONS. Any indebtedness of Company now
or hereafter held by any Subsidiary Guarantor (other than royalty payments in
the ordinary course of business) is hereby subordinated in right of payment to
the Guaranteed Obligations, and any such indebtedness of Company to any
Subsidiary Guarantor collected or received by a Subsidiary Guarantor after an
Event of Default has occurred and is continuing shall be held in trust by such
Subsidiary Guarantor for the benefit of Noteholders and shall forthwith be
ratably paid over to each Noteholder for credit to and application against the
Guaranteed Obligations but without affecting, impairing or limiting in any
manner the liability of such Subsidiary Guarantor under any other provision of
this Subsidiary Guaranty.
2.8 EXPENSES. Each Subsidiary Guarantor agrees to pay, or cause to be
paid, on demand, and to save Noteholders harmless against liability for (i) any
and all reasonable costs and expenses (including fees and disbursements of
outside counsel and allocated costs of internal counsel) incurred or expended by
any Noteholder in connection with the preparation of any subsequent modification
of, or consent under, this Subsidiary Guaranty, whether or not such consent is
granted; provided that with respect to amendments proposed by any Significant
Holder prior to the occurrence of an Event of Default, such holder shall notify
the Company and the Guarantor prior to engaging outside counsel to prepare such
amendment, (ii) all reasonable costs and expenses (including outside counsel
fees and allocated costs of internal counsel) incurred by any Noteholder in
enforcement or preservation of any rights under this Subsidiary Guaranty and
(iii) any registration tax incurred in connection with the registration or
filing of this Subsidiary Guaranty or any judgment with respect thereto;
provided, however, that notwithstanding the foregoing, the Subsidiary Guarantors
shall be obligated to pay the fees and expenses of only one outside law firm
that is acting as counsel to Noteholders as a group, provided, that (A) in the
event that Required Holders determine that legal advice or assistance is needed
with respect to the laws of the jurisdiction in which any Subsidiary Guarantor
is established, then the Noteholders shall have the right to retain an
additional outside
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law firm in any such jurisdiction, (B) if any Noteholder reasonably determines
that there exists a conflict of interest between itself and the other
Noteholders it may engage separate counsel at the expense of the Subsidiary
Guarantors. Further, in cases brought by individual Noteholders resulting from
the failure of the Company to make payments in respect of their Notes, each
Noteholder may, if it so elects, retain its outside counsel but the Subsidiary
Guarantors shall only be liable for the fees and expenses of up to four outside
law firms.
2.9 CONTINUING GUARANTY; TERMINATION OF GUARANTY. This Subsidiary
Guaranty is a continuing guaranty and shall remain in effect until all of the
Guaranteed Obligations shall have been paid in full. Each Subsidiary Guarantor
hereby irrevocably waives any right to revoke this Subsidiary Guaranty as to
future transactions giving rise to any Guaranteed Obligations.
2.10 AUTHORITY OF EACH SUBSIDIARY GUARANTOR OR COMPANY. It is not
necessary for any Noteholder to inquire into the capacity or powers of any
Subsidiary Guarantor, Company or Parent or the officers, directors or any agents
acting or purporting to act on behalf of any of them, including ABN Amro
Securities.
2.11 FINANCIAL CONDITION OF COMPANY. Any Notes may be issued by Company
or other indebtedness incurred by it or any other of the Subsidiary Guarantors
or renewed, extended, refinanced or otherwise continued from time to time
without notice to or authorization from any Subsidiary Guarantor regardless of
the financial or other condition of Company of such other of the Subsidiary
Guarantors at the time of any such grant or continuation. Noteholders shall have
no obligation to disclose or discuss with any Subsidiary Guarantor their
assessment, or such Subsidiary Guarantor's assessment, of the financial
condition of Company, Parent or any other of the Subsidiary Guarantors. Each
Subsidiary Guarantor has adequate means to obtain information on a continuing
basis concerning the financial condition of Company, Parent or any other of the
Subsidiary Guarantors and their respective abilities to perform their
obligations under the Note Documents, and each Subsidiary Guarantor assumes the
responsibility for being and keeping informed of the financial condition of
Company, Parent and each of the other Subsidiary Guarantors and of all
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations.
Each Subsidiary Guarantor hereby waives and relinquishes any duty on the part of
any Noteholder to disclose any matter, fact or thing relating to the business,
operations or conditions of Company, Parent or any of the other Subsidiary
Guarantors now known or hereafter known by any Noteholder.
2.12 RIGHTS CUMULATIVE. The rights, powers and remedies given to
Noteholders by this Subsidiary Guaranty are cumulative and shall be in addition
to and independent of all rights, powers and remedies given to Noteholders by
virtue of
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any statute or rule of law or in any Note Document or any other agreement
between Parent, Company or any of the Subsidiary Guarantors and the Noteholders.
Any forbearance or failure to exercise, and any delay by any Noteholder in
exercising, any right, power or remedy hereunder shall not impair any such
right, power or remedy or be construed to be a waiver thereof, nor shall it
preclude the further exercise of any such right, power or remedy.
2.13 BANKRUPTCY; POST-PETITION INTEREST; REINSTATEMENT OF GUARANTY. (a)
So long as any Guaranteed Obligations remain outstanding, no Subsidiary
Guarantor shall, without the prior written consent of the Required Holder(s),
commence or join with any other Person in commencing any bankruptcy,
reorganization or insolvency proceedings of or against Company, Parent or any of
the other Subsidiary Guarantors. The obligations of any Subsidiary Guarantor
under this Subsidiary Guaranty shall not be reduced, limited, impaired,
discharged, deferred, suspended or terminated by any proceeding, voluntary or
involuntary, involving the bankruptcy, insolvency, receivership, reorganization,
liquidation or arrangement of Company, Parent or any of the other Subsidiary
Guarantors or by any defense which Company, Parent or such Subsidiary Guarantor
may have by reason of the order, decree or decision of any court or
administrative body resulting from any such proceeding.
(b) Each Subsidiary Guarantor acknowledges and agrees that any
interest on any portion of the Guaranteed Obligations which accrues after the
commencement of any proceeding referred to in clause (a) above (or, if interest
on any portion of the Guaranteed Obligations ceases to accrue by operation of
law by reason of the commencement of said proceeding, such interest as would
have accrued on such portion of the Guaranteed Obligations if said proceedings
had not been commenced) shall be included in the Guaranteed Obligations because
it is the intention of such Subsidiary Guarantor that the Guaranteed Obligations
which are guaranteed by such Subsidiary Guarantor pursuant to this Subsidiary
Guaranty should be determined without regard to any rule of law or order which
may relieve Company, Parent or any of the other Subsidiary Guarantors of any
portion of such Guaranteed Obligations. Each Subsidiary Guarantor will permit
any trustee in bankruptcy, receiver, debtor in possession, assignee for the
benefit of creditors or similar person to pay Noteholders, or allow the claim of
each Noteholder in respect of, any such interest accruing after the date on
which such proceeding is commenced.
(c) In the event that all or any portion of the Guaranteed
Obligations are paid by Company and/or Parent and/or any of the other Subsidiary
Guarantors, the obligations of each Subsidiary Guarantor hereunder shall
continue and remain in full force and effect or be reinstated, as the case may
be, in the event that all or any
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part of such payment(s) are rescinded or recovered directly or indirectly from
any Noteholder as a preference, fraudulent transfer or otherwise, and any such
payments which are so rescinded or recovered shall constitute Guaranteed
Obligations for all purposes under this Subsidiary Guaranty.
2.14 NOTICE OF EVENTS. As soon as any Subsidiary Guarantor obtains
knowledge thereof, such Subsidiary Guarantor shall give Noteholders written
notice of any condition or event which has resulted in (a) an event, development
or change with respect to such Subsidiary Guarantor, Parent, Company or any of
the other Subsidiary Guarantors that has resulted or could reasonably be
expected to result in a Material Adverse Effect or (b) a breach of or
noncompliance with any term, condition or covenant contained herein or in any
Note Document.
2.15 CERTAIN LIMITATIONS. (a) Section 2.1 of this Subsidiary Guaranty
notwithstanding, the liability of Inmac Gesellschaft mit beschrankter Haftung
under this Subsidiary Guaranty shall be limited at all times to the amount by
which Inmac Gesellschaft mit beschrankter Haftung's equity (the calculation of
which shall take into account the captions reflected in Section 266(3)A.I
through V of the German Commercial Code) at that time exceeds Inmac Gesellschaft
mit beschrankter Haftung's registered share capital (the "Surplus Equity") and
further provided that in determining the Surplus Equity such liabilities shall
not be valued below their true value and such assets shall not be valued above
their true realizable value so that such liabilities under the Subsidiary
Guaranty would at no time require the payment of any monies which are needed to
maintain a net asset value which is at least equal to Inmac Gesellschaft mit
beschrankter Haftung's registered share capital.
(b) Section 2.1 of this Subsidiary Guaranty notwithstanding,
the liability of Inmac aktiebolag, under this Subsidiary Guaranty, shall be
limited at all times by (i) the exclusion of such amounts as may be loaned,
whether directly or indirectly by the Company or any other Subsidiary Guarantors
to the Parent; the amounts loaned to the Parent shall, however, not exceed
$8,000,000 and (ii) the amount which corresponds to the unrestricted equity of
Inmac aktiebolag ("fritt eget kapital") calculated in accordance with Chapter
12, Section 2 of the Swedish Companies Act.
(c) Section 2.1 of this Subsidiary Guaranty notwithstanding,
the maximum amount payable at any time by Inmac S.A. under this Subsidiary
Guaranty (expressed in Dollars, determined as necessary in accordance with
paragraph 11V of the Note Agreement) shall not exceed the Maximum Financial
Capacity of Inmac S.A. at the time of such payment where "Maximum Financial
Capacity" means, as of the time of its determination, an amount equal to the
excess of (A) the equivalent in Dollars (as determined in accordance with
paragraph 11V of the Note Agreement) of
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the Net Worth of Inmac S.A. over (B) $1,000,000 and where "Net Worth" means,
with respect to Inmac S.A., its "capitaux propres" as determined in accordance
with French generally accepted accounting principles as reflected in the annual
financial statements for the most recently ended fiscal year of Inmac S.A.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce Noteholders to accept this Subsidiary
Guaranty, to enter into the Note Agreement and to purchase the Notes and the
Warrants, each Subsidiary Guarantor hereby severally represents and warrants to
Noteholders that the following statements are true and correct:
3.1 ORGANIZATION. Such Subsidiary Guarantor is a corporation duly
organized and existing under the laws of jurisdiction named at the head of this
Subsidiary Guaranty and each Subsidiary Guarantor has the corporate power to own
its respective property and to carry on its respective business as now being
conducted.
3.2 ACTIONS PENDING. There is no action, suit, investigation or
proceeding pending or, to the knowledge of such Subsidiary Guarantor, threatened
against such Subsidiary Guarantor or any of its Subsidiaries, or any of its
properties or rights, by or before any court, arbitrator or administrative or
governmental body which might result in any Material Adverse Effect.
3.3 CONFLICTING AGREEMENTS AND OTHER MATTERS. Neither Subsidiary
Guarantors nor any of their respective Subsidiaries is a party to any contract
or agreement or subject to any charter or other corporate restriction which has
or could reasonably have a Material Adverse Effect. Neither the execution nor
delivery of this Subsidiary Guaranty nor compliance with the terms and
provisions hereof will conflict with, or result in a breach of the terms,
conditions or provisions of, or constitute a default under, or result in any
violation of, or result in the creation of any Lien upon any of the properties
or assets of any Subsidiary Guarantor or any of its Subsidiaries pursuant to,
the charter or by-laws of such Subsidiary Guarantor or any of its Subsidiaries,
any award of any arbitrator or any agreement (including any agreement with
stockholders), instrument, order, judgment, decree, statute, law, rule or
regulation to which such Subsidiary Guarantor or any of its Subsidiaries is
subject. Neither any Subsidiary Guarantor nor any of their Subsidiaries is a
party to, or otherwise subject to any provision contained in, any instrument
evidencing Debt of a Subsidiary Guarantor or such Subsidiary, any agreement
relating thereto or any other contract or agreement (including its charter)
which limits the amount of, or otherwise imposes restrictions on the incurring
of, Debt of such Subsidiary Guarantor of the type to be evidenced by this
Subsidiary Guaranty except as set forth in the agreements listed in Schedule 3.3
attached hereto.
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3.4 PENSION PLANS. Each Foreign Pension Plan of such Subsidiary
Guarantor has been maintained in substantial compliance with its terms and with
the requirements of any and all applicable laws, statutes, rules, regulations
and orders and has been maintained, where required, in good standing with
applicable regulatory authorities. Neither such Subsidiary Guarantor nor any of
its Subsidiaries has incurred any obligation in connection with the termination
of or withdrawal from any Foreign Pension Plan. The present value of the accrued
benefit liabilities (whether or not vested) under each Foreign Pension Plan for
such Subsidiary Guarantor or its Subsidiaries, determined as of the end of such
Subsidiary Guarantor's most recently ended fiscal year on the basis of actuarial
assumptions, each of which is reasonable, did not exceed the current value of
the assets of such Foreign Pension Plan allocable to such benefit liabilities.
3.5 GOVERNMENTAL CONSENT. No circumstance in connection with the
execution and delivery of this Subsidiary Guaranty, is such as to require any
authorization, consent, approval, exemption or other action by or notice to or
filing with any court or administrative or governmental body in any jurisdiction
in which such Subsidiary Guarantor is organized or does business.
3.6 AUTHORIZATION AND ENFORCEABILITY. This Subsidiary Guaranty has been
duly authorized by all necessary corporate action on the part of such Subsidiary
Guarantor and has been duly executed and delivered by duly authorized officers
thereof. This Subsidiary Guaranty constitutes the legally valid and binding
obligation of such Subsidiary Guarantor, enforceable against such Subsidiary
Guarantor in accordance with its terms, except that (i) enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium, or similar laws
relating to or limiting the rights of creditors generally and (ii) enforcement
is subject to the effect of general principles of equity, whether applied by a
court of law or equity.
3.7 PARI PASSU NATURE. The obligations of such Subsidiary Guarantor
hereunder do and will continue to rank pari passu with all other unsecured,
senior obligations of such Subsidiary Guarantor except to the extent of Liens
permitted by Section 5.4 of the Guaranty or the obligations listed in Schedule
3.18 of the Guaranty or that are mandatorily preferred under applicable law.
3.8 SOLVENCY. None of such Subsidiary Guarantor's liability evidenced
by this Subsidiary Guaranty was incurred with the intent to hinder, delay or
defraud any of their respective creditors or any other Person to which it is, on
or after the date hereof, indebted. Such Subsidiary Guarantor is not insolvent
on the date hereof, and will not become insolvent as a result of becoming
obligated hereunder. For purposes of this Section 3.8, the term "insolvent"
means, with respect to any Person, the
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financial condition such that either (i) the sum of such Person's liabilities
(including contingent and unliquidated liabilities computed in the manner set
forth below) is greater than all of its property, at fair valuation or (ii) the
present fair salable value of its assets is less than the amount that will be
required to pay its probable liability on its existing Indebtedness as they
become absolute and matured. Such Subsidiary Guarantor does not intend to incur,
nor does it believe that it is incurring, Indebtedness beyond its ability to pay
as such Indebtedness matures. In computing the amount of contingent or
unliquidated liabilities at any time, such liabilities will be computed at the
amount which, in light of all the known facts and circumstances existing at such
time represents the amount that can reasonably be expected to become an actual
or matured liability. Such Subsidiary Guarantor is not engaged in any business
or transaction for which the property remaining with it after giving effect to
such business or transaction would be an unreasonably small amount of capital.
3.9 DISCLOSURE. Neither this Subsidiary Guaranty nor any other Note
Document furnished to you by or on behalf of any Subsidiary Guarantor in
connection herewith contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained herein
and therein not misleading. There is no fact peculiar to any Subsidiary
Guarantor or any of its Subsidiaries which now has or in the future may (so far
as such Subsidiary Guarantor can now foresee) have a Material Adverse Effect and
which has not been set forth in this Subsidiary Guaranty or in the Note
Documents.
SECTION 4. COVENANTS.
4.1 INSPECTION OF PROPERTY. Each Subsidiary Guarantor covenants that it
will permit any duly authorized representative of any Inspecting Holder in
writing to visit and inspect any of its or any of its Subsidiaries' properties,
to examine their corporate books and financial records and make copies thereof
or extracts therefrom and to discuss any of their affairs, finances and accounts
with the principal officers of such Subsidiary Guarantor or such Subsidiary and
its independent public accountants, all at such reasonable times and as often as
such Inspecting Holder may reasonably request. Access to material, non-public
information may be conditioned on such Inspecting Holder's execution and
delivery to such Subsidiary Guarantor or such Subsidiary of a Confidentiality
Agreement. The costs and expenses associated with the exercise of any rights
under this Section 4.1 shall be borne by such Inspecting Holder, unless and
until either a Default or Event of Default has occurred under the Note Agreement
or a breach or default has occurred hereunder, in which event the reasonable
costs and expenses shall be borne by such Subsidiary Guarantor. Delivery of
material non-public information shall be conditioned on such Significant
Holder's execution and delivery of a Confidentiality Agreement as required under
paragraph 11D of the Note Agreement (to the extent such holder has not already
done so). The
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Inspecting Holders shall use reasonable efforts to coordinate their inspections
and requests for copies so as, to the extent they can, to avoid unnecessary
duplication.
4.2 COVENANT TO SECURE EQUALLY. Each Subsidiary Guarantor covenants
that if it shall create or assume any Lien upon any of its property or assets,
whether now owned or hereafter acquired, other than Liens permitted by the
provisions of Section 5.4 of the Parent Guaranty, it will make or cause to be
made effective provision whereby this Subsidiary Guaranty will be secured by
such Lien equally and ratably with any and all other Debt thereby secured so
long as any such other Debt shall be so secured.
4.3 ROYALTY ARRANGEMENTS. Each Subsidiary Guarantor covenants that it
will maintain the existing royalty arrangements between it and Parent on terms
no less favorable to Parent than those that exist on the date hereof and as are
set forth in Schedule 4.10 to the Parent Guaranty, except for changes, to the
extent necessary, to minimally comply with applicable legal requirements;
provided in no event shall such changes terminate or substantially reduce the
minimum fixed royalty payments to Parent.
4.4 OTHER COVENANTS. Each Subsidiary Guarantor covenants that it will
perform or otherwise comply with the covenants set forth in Sections 4 and 5 of
the Parent Guaranty, to the extent such covenants specifically apply to
Subsidiaries of the Parent or the Company, and such covenants shall be binding
on the Subsidiary Guarantor as if restated herein in their entirely and made
applicable to each Subsidiary Guarantor mutatis mutandis.
SECTION 5. MISCELLANEOUS
5.1 SURVIVAL OF WARRANTIES. All agreements, representations and
warranties made herein shall survive the execution and delivery of this
Subsidiary Guaranty and the other Note Documents.
5.2 NOTICES. All written communications provided for hereunder shall be
sent by international or nationwide (as applicable) overnight delivery service
(with charges prepaid) and (i) if to a Noteholder, addressed to it in accordance
with paragraph 11I of the Note Agreement, and (iii) if to any Subsidiary
Guarantor, addressed to it at the address specified on the signature page hereof
or at such other address as such Subsidiary Guarantor shall have specified to
the holder of each Note in writing; provided, however, that any such
communication to any Subsidiary Guarantor may also, at the option of the holder
of any Note, be delivered by any other means either to such Subsidiary Guarantor
at the address specified above or to any director or officer of such Subsidiary
Guarantor.
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5.3 SEVERABILITY. In case any provision in or obligation under this
Subsidiary Guaranty shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
5.4 AMENDMENTS AND WAIVERS. No amendment, modification, termination or
waiver of any provision of this Subsidiary Guaranty, and no consent to any
departure by any Subsidiary Guarantor therefrom, shall in any event be effective
without the written concurrence of the Required Holders and, in the case of any
such amendment or modification, each Subsidiary Guarantor. Any such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given.
5.5 HEADINGS. Section and subsection headings in this Subsidiary
Guaranty are included herein for convenience of reference only and shall not
constitute a part of this Subsidiary Guaranty for any other purpose or be given
any substantive effect.
5.6 APPLICABLE LAW. THIS SUBSIDIARY GUARANTY AND THE RIGHTS AND
OBLIGATIONS OF EACH SUBSIDIARY GUARANTOR AND NOTEHOLDERS HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
5.7 SUCCESSORS AND ASSIGNS. This Subsidiary Guaranty is a continuing
guaranty and shall be binding upon each Subsidiary Guarantor and its successors
and assigns. This Subsidiary Guaranty shall inure to the benefit of Noteholders
and their respective successors and assigns. No Subsidiary Guarantor shall
assign this Subsidiary Guaranty or any of the rights or obligations of such
Subsidiary Guarantor hereunder without the prior written consent of all
Noteholders. Any Noteholder may, without notice or consent, assign its interest
in this Subsidiary Guaranty in whole or in part. The terms and provisions of
this Subsidiary Guaranty shall inure to the benefit of any Transferee, and in
the event of such transfer or assignment the rights and privileges herein
conferred upon Noteholders shall automatically extend to and be vested in such
Transferee, all subject to the terms and conditions hereof.
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5.8 CONSENT TO JURISDICTION AND SERVICES OF PROCESS. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST ANY SUBSIDIARY GUARANTOR ARISING OUT OF OR RELATING
TO THIS SUBSIDIARY GUARANTY MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE OF NEW YORK AND BY EXECUTION AND DELIVERY OF
THIS SUBSIDIARY GUARANTY EACH SUBSIDIARY GUARANTOR ACCEPTS FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS SUBSIDIARY GUARANTY. Each Subsidiary Guarantor hereby
agrees that service of all process in any such proceeding in any such court may
be made by registered or certified mail, return receipt requested, to such
Subsidiary Guarantor at its address provided in subsection 5.2, such substituted
service of process being hereby acknowledged by such Subsidiary Guarantor to be
sufficient for personal jurisdiction in any action against such Subsidiary
Guarantor in any such court and to be otherwise effective and binding service in
every respect. Without limiting the foregoing, each Subsidiary Guarantor hereby
appoints in the case of any such action or proceeding brought in the courts of
or in the State of New York, CT Corporation, with offices on the date hereof at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, to receive, for it and on its behalf,
service of process in the State of New York with respect thereto. Nothing herein
shall affect the right to serve process in any other manner permitted by law or
shall limit the right of any Noteholder to bring proceedings against any
Subsidiary Guarantor in the courts of any other jurisdiction.
5.9 WAIVER OF TRIAL BY JURY. EACH SUBSIDIARY GUARANTOR AND, BY ITS
ACCEPTANCE OF THE BENEFITS HEREOF, THE NOTEHOLDERS EACH HEREBY AGREES TO WAIVE
ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS SUBSIDIARY GUARANTY. The scope of this waiver is intended
to be all-encompassing of any and all disputes that may be filed in any court
and that relate to the subject matter of this transaction, including without
limitation contract claims, tort claims, breach of duty claims and all other
common law and statutory claims. Each Subsidiary Guarantor and, by its
acceptance of the benefits hereof, the Noteholders each (i) acknowledges that
this waiver is a material inducement for each Subsidiary Guarantor to enter into
a business relationship, that each Subsidiary Guarantor has already relied on
this waiver in entering into this Subsidiary Guaranty or accepting the benefits
thereof, as the case may be, and that each will continue to rely on this waiver
in their related future dealings and (ii) further warrants and represents that
each has reviewed this waiver
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with its legal counsel, and that each knowingly and voluntarily waives its jury
trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS SUBSIDIARY GUARANTY. In the event of litigation, this
Subsidiary Guaranty may be filed as a written consent to a trial by the court.
5.10 NO OTHER WRITING. This writing is intended by each Subsidiary
Guarantor as the final expression of this Subsidiary Guaranty and is also
intended as a complete and exclusive statement of the terms of their agreement
with respect to the matters covered hereby. No course of dealing, course of
performance or trade usage, and no parol evidence of any nature, shall be used
to supplement or modify any terms of this Subsidiary Guaranty. There are no
conditions to the full effectiveness of this Subsidiary Guaranty.
5.11 FURTHER ASSURANCES. At any time or from time to time, upon the
request of Required Holders, any Subsidiary Guarantor shall execute and deliver
such further documents and do such other acts and things as Required Holders may
reasonably request in order to effect fully the purposes of this Subsidiary
Guaranty.
5.12 GROSS-UP. All payments whatsoever by any Subsidiary
Guarantor (the "Payor") under this Subsidiary Guaranty shall be made in the
lawful currency of the United States of America (except for payment in respect
of Notes denominated in a foreign currency in which case payment shall be made
in the currencies in which each Note is denominated) free and clear of, and
without reduction or liability for or on account of, any present or future
taxes, levies, imposts, duties, fees, charges, restrictions, conditions,
deductions or withholdings of any nature whatsoever imposed by or for a
government or other authority having power to tax (other than income taxes of
the United States) (hereinafter called "Tax") unless any withholding or
deduction for or on account of Tax is required by law.
If the Payor shall be obligated by law to make any such withholding or
deduction for any Tax imposed, levied, collected, assessed or withheld by or
within the jurisdiction in which the Payor is organized or resident for tax
purposes or any political subdivision or taxing authority thereof or therein or
by any other country or jurisdiction (or any taxing authority thereof or
therein) from or through which payments hereunder by the Payor are actually made
(each, a "Taxing Jurisdiction"), then the Payor will promptly (i) pay over to
the relevant Taxing Jurisdiction the full amount required to be deducted,
withheld or otherwise paid in by the Payor (including the full amount required
to be deducted or withheld from or otherwise paid
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by the Payor in respect of any Additional Payment (as defined below) required to
be made pursuant to clause (ii) hereof) and (ii) pay to each Person entitled
under this Subsidiary Guaranty to receive the payment from which the amount
referred to in clause (i) has been so deducted, withheld or otherwise paid such
additional amount (the "Additional Payment") as is necessary in order that the
amount received by such Person after any required deduction, withholding or
other payment of Tax (including any required deduction, withholding or other
payment of Tax on or with respect to such additional amount), shall equal the
amount such Person would have received had no such deduction, withholding or
other payment of Tax been paid. Any Person receiving an Additional Payment
agrees to use its reasonable efforts to determine whether it actually received
any foreign tax credits for U.S. income tax purposes by virtue of the Tax that
gave rise to the Additional Payment, and if so, to determine the amount of such
tax credit and to pay the same over to the Payor promptly after such final
determination, it being understood, however, that (A) such determination shall
be in the sole and absolute discretion of such receiving Person; (B) the Payor
shall not have any audit or other rights with respect to such determination; (C)
such receiving Person shall not be obligated to make such determination until it
has actually filed its U.S. income tax return for the taxable period in which it
received such Additional Payment; and (D) such receiving Person shall sustain no
liability, and shall not otherwise be obligated for any errors in the
determination of such foreign tax credit.
5.13 JUDGMENT CURRENCY INDEMNITY. Any payment on account of an amount
that is payable hereunder in Dollars or Dutch Guilders (the "Required Currency")
which is made to or for the account of any Noteholder in the lawful currency of
any other jurisdiction ("Currency"), whether as a result of any judgment or
order or the enforcement thereof or the realization of any security or the
liquidation of the Person obligated to make such payment shall constitute a
discharge of such Person's obligation under this Subsidiary Guaranty, the Note
Agreement or the Notes only to the extent of the amount of the Required Currency
which such Noteholder could purchase in the New York foreign exchange markets
with the amount of other Currency in accordance with normal banking procedures
at the rate of exchange prevailing on the first Business Day following receipt
of the payment first referred to above. If the amount of the Required Currency
that could be so purchased is less than the amount of the Required Currency
originally due to such Noteholder, the Person obligated hereunder to make such
payment shall indemnify and save harmless such Noteholder from and against all
loss or damage arising out of or as a result of such deficiency. This indemnity
shall constitute an obligation separate and independent from the other
obligations contained in this Subsidiary Guaranty, the Note Agreement or the
Notes, shall give rise to a separate and independent cause of action, shall
apply irrespective of any indulgence granted by such Noteholder from time to
time and shall continue in full force and effect notwithstanding any judgment or
order for a liquidated sum in respect of an amount
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due hereunder or under any judgment or order. This paragraph shall survive the
termination of this Subsidiary Guaranty, the Note Agreement, the Notes and the
Parent Guaranty and the repayment in full of the Notes.
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IN WITNESS WHEREOF, each Subsidiary Guarantor has caused this
Subsidiary Guaranty to be duly executed and delivered as of the date first
written above.
INMAC S.A.
By_________________________
Title:
Address:
INMAC HOLDINGS LIMITED
By_________________________
Title:
Address:
INMAC (U.K.) LIMITED
By_________________________
Title:
Address:
INMAC AKTIEBOLAG
By_________________________
Title:
Address:
INMAC GESELLSCHAFT MIT BESCHRANKTER HAFTUNG
By_________________________
Title:
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Address:
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